The question of child custody is often the most delicate and emotionally charged matter in a divorce or separation. Swiss law places the child's best interests at the heart of every decision relating to their personal situation. Since the parental authority reform that came into force on 1 July 2014, joint parental authority is the general principle applicable to all parents, whether married or not. PBM Avocats accompanies parents in seeking amicable agreements on custody and, in the event of a dispute, represents them before the civil courts of Geneva and Vaud.
Joint Parental Authority: General Rule Since 2014
Since 1 July 2014, joint parental authority is the rule for all parents, regardless of their civil status. Art. 296 CC confers joint parental authority on both parents from the child's birth if the parents are married. Art. 298a CC extends this principle to unmarried parents who make a joint declaration of parental authority before the civil registry office, and art. 298 CC enshrines it in cases of divorce or judicial separation.
Joint parental authority means that both parents must make important decisions concerning the child together: choice of school, significant medical care, religion, change of residence. Sole parental authority to one parent is ordered only in exceptional situations, notably when the other parent is seriously deficient, unfit or absent, or when cooperation between them is structurally impossible and harmful to the child.
Physical Custody: Primary Custody and Shared Custody
Distinct from parental authority, physical custody refers to the child's actual place of residence and day-to-day care. It can take two main forms. Under primary custody, the child resides with one parent, who provides the majority of daily care, while the other parent benefits from a right of personal contact (right of access). Under shared custody, the child divides their time significantly between both parental homes, according to an arrangement that may be weekly, bi-weekly or based on another distribution adapted to the child's needs and the parents' organisation.
The Federal Supreme Court established, in its landmark ruling ATF 142 III 617, that shared custody may be ordered by the court even if one parent opposes it, provided it serves the child's best interests. To assess its appropriateness, the court examines in particular the parents' ability to cooperate, the geographical proximity of their homes, the child's school situation, their age and particular needs. PBM Avocats helps its clients prepare and document the relevant factual elements to support a request for shared custody or to demonstrate its inappropriateness.
The Right of Personal Contact: Right of Access
The child has the right to maintain personal relations with both parents and the parents reciprocally have the right and duty to maintain such relations (art. 273 CC). The right of access — the common term for personal contact — is set by the court in case of parental disagreement. In practice, a standard right of access includes alternating weekends, part of school holidays and public holidays, but the distribution can be adapted according to circumstances.
The right of access may be restricted or even withdrawn if relations between the visiting parent and the child endanger the child's development (art. 274 para. 2 CC). Special arrangements such as supervised access, exercised in the presence of a third party or at a contact centre, may be ordered when circumstances justify it. Conversely, a parent who systematically obstructs the other's right of access may have physical custody removed, since cooperation with the other parent is a decisive criterion in assessing parental fitness.
Taking into Account the Child's Best Interests and Wishes
Every judicial or administrative decision relating to custody must be based on the child's best interests, a principle enshrined in domestic law (art. 11 Cst.; art. 3 CRC) and in the UN Convention on the Rights of the Child (CRC), ratified by Switzerland in 1997. A child capable of discernment has the right to be heard in proceedings concerning them (art. 298 para. 1 CC; art. 12 CRC). In practice, the court hears the child directly or appoints a representative guardian charged with defending the child's interests in the proceedings.
The child's expressed wishes are not binding on the court, but constitute an important element whose weight increases with the child's age and maturity. A social report or child psychiatric assessment may be ordered to help the court evaluate emotional bonds, parental capacities and the child's psychological situation. PBM Avocats ensures that the child's voice is heard and correctly conveyed in the proceedings, in collaboration with specialist professionals.
Frequently Asked Questions on Child Custody
What is the difference between parental authority and physical custody?
Parental authority (art. 296 et seq. CC) is the right and duty to make important decisions concerning the child: choice of school, medical care, relocation, religion. Since the 2014 reform, joint parental authority is the rule for all parents, whether married, separated, divorced or unmarried. Physical custody — sometimes called de facto custody — refers to the child's principal place of residence and day-to-day care. It may be attributed to one parent (sole custody), with the other parent having a right of access, or organised on an alternating basis between both parents (shared custody). The two concepts are therefore distinct: one can have joint parental authority while having primary physical custody with one parent.
What criteria does the court take into account when determining custody?
The court rules on custody in the best interests of the child (art. 133 CC). Federal Supreme Court case law has identified a series of criteria: the educational capacity of each parent, effective availability (time devoted to the child), stability of the place of life and schooling, proximity of the parental homes, the parents' ability to cooperate with each other and to foster the child's relationship with the other parent, as well as the child's emotional bonds and wishes (progressively taken into account depending on age and maturity). The court may order a child psychiatric assessment or a social report prepared by a youth protection service to assist it, particularly in contentious cases.
Under what conditions is shared custody ordered?
Since the landmark ruling of the Federal Supreme Court (ATF 142 III 617), shared custody may be ordered even in the absence of agreement from both parents, if it serves the child's best interests. For it to be workable, courts examine in particular: the ability of both parents to cooperate on a daily basis, the geographical proximity of both residences, the child's schooling situation, the stability of each household, and the child's needs according to their age. Shared custody is not appropriate for very young children who need a stable anchor point, nor where the relationship between the parents is marked by significant conflict making any cooperation impossible. The court has broad discretion.
Can a parent relocate abroad with the child without the other parent's agreement?
No. In cases of joint parental authority, the child's relocation abroad requires the agreement of the other parent holding parental authority (art. 301a CC). In case of disagreement, the court decides based on the child's welfare, taking into account in particular the intensity of the bonds with each parent, the living conditions in the destination country and the impact of the relocation on the other parent's right of access. If a parent unilaterally moves the child outside Switzerland without authorisation, this may constitute an unlawful removal within the meaning of the 1980 Hague Convention, which requires the child's return to their state of habitual residence. PBM Avocats regularly handles such cross-border cases.
How can a custody decision be modified after divorce?
A custody decision may be modified by the divorce court or the competent tribunal when circumstances have changed significantly and permanently since the judgment or since the last decision (art. 134 CC). The most common grounds are: a parent's relocation, a change in professional working hours, a change in the child's school or emotional situation, or a deterioration in the parent-child relationship. The modification procedure may be initiated by either parent, or by the CAPA in case of threat to the child's welfare. The court may also order urgent interim measures if the situation requires it. The child's opinion, proportional to their age, is gathered and taken into account in the decision.