Is it all just a storm in a teacup? Will everything stay the same?
The fathers' expectations were high – as were their hopes for the Federal Council's draft legislation.
Even greater was the initial joy upon reading the draft – after its publication at the end of January 2009.
Specialists from the VeV, together with other organizations, have analyzed the draft more closely in recent weeks and have reached a sobering conclusion:
Strictly speaking, everything will remain as it was!
Despite the seemingly positive-sounding legislative proposals, a closer look reveals that this amendment would hardly change anything.
This is particularly evident in Article 298b, which states: "At the request of a parent, the court shall assign parental custody to the father or the mother if the child's welfare so requires."
However, the law does not specify any criteria under which this should occur. Worse still, it again relies on the dubious concept of "the child's welfare"—a term long considered problematic by experts. The so-called welfare of the child can be used to justify virtually anything. In fact, this article will continue to allow parents, specifically fathers, to be easily removed from their children's lives. Presumably, as is already the case today, a mother's reference to "constant disputes with the father" would suffice to lead any backward-looking judge to order the father's removal. This is all the more true since it would align with the established jurisprudence of the Federal Supreme Court.
Once again, fathers and their children would be at the mercy of the judge's discretion, if arbitrariness were given free rein. Fathers and their children could expect no legal certainty, nor equality before the law.
The draft law makes no mention of the desired equality of parents, even after separation – nor does it address mediation or other means of de-escalating conflict resolution. Disagreeing parents will continue to have to take their disputes to court – with the well-known, damaging consequences for all involved.
Unfortunately, the Federal Council failed to propose any genuine changes. There is a risk that these half-hearted proposals will reduce joint custody to a paper tiger – toothless, useless, and without practical value in everyday life.
is quite different The draft legislationby the umbrella organization of parents' associations, GeCoBi, . It consistently holds parents accountable for their responsibilities – they remain responsible for raising their children, even as a separated parent.
They are burdened with both childcare and co-financing – ideally in equal shares.
This model not only increases the acceptance of parenthood on both sides, but also improves the children's overall environment, both socially and emotionally.
Furthermore, our proposal stipulates that in cases of separation, parents should be offered, indeed required, assistance in the form of de-escalating measures such as mediation and counseling. This contrasts with current services like courts and guardianship authorities, which all tend to escalate conflicts.
VeV, along with other organizations, will submit a response to the draft legislation in the coming days.
Contrary to our initial hopes, this response will be highly critical.
In our opinion, the Federal Council has missed a great opportunity and will have to significantly improve this draft.