Custody dispute: Borer case could be groundbreaking

It must have been a tough blow for Shawne Borer-Fielding. The Horgen district court has decided that it is not she who will be awarded custody of their children Ruby and Roman, but rather her husband Thomas Borer. This decision comes as a surprise to family lawyers. “Fathers usually only get custody if the mother can be accused of making serious mistakes. But they have to be massive,” emphasizes Kathrin Thomann, Zurich specialist lawyer for family law. “If the father has a certain level of prominence, like Mr. Borer, this is probably an advantage.”

Exceptional case

Thomann, whose main business is divorces, has often represented men for ten years. “During this time, I was only able to obtain custody of four men in controversial cases.” It is unclear why exactly the court decided in favor of Thomas Borer. The Horgen District Court does not want to comment because family law cases are generally not public. However, Kathrin Thomann is very surprised that Horgen of all people decided in favor of a father: “I think very highly of the Horgen district court, but it is not known as an incredibly progressive court.”

The Swiss legal situation, on the other hand, is clear: If the parents cannot agree on joint custody, the court will award custody to the parent who can better protect the child's best interests. Since the divorce law was revised, father and mother are fundamentally equal. That's the theory. However, practice shows a different picture. In the vast majority of cases, the fathers go away empty-handed and the mother more or less automatically receives custody. Kathrin Thomann speaks of a “operational blindness” on the part of the courts and creditors, which is not up to date.

Shawne Borer-Fielding's foreign trips are crucial?

What happened? What was so serious that Shawne Borer-Fielding was not awarded custody? According to “Sunday,” one of Borer’s attorney’s arguments was Shawne Borer-Fielding’s frequent trips abroad. Is that enough? "Yes. If it can be proven that one parent travels a lot, it may be that custody is awarded to the parent who offers more consistency," says Kathrin Thomann. Theoretically, custody is assigned to the parent who can better look after the child on their own. This is particularly important for small children.

But even Thomas Borer, who works as an entrepreneur in Europe and the USA and sits on the board of directors of several companies, is unlikely to be able to look after the children around the clock. It's possible he hired a nanny for Ruby and Roman. «Personal support is crucial. However, if the child is constantly cared for by the same person, this is of course better than if it is cared for irregularly by one parent.

Cryptic blog entry

In a cryptic blog entry from yesterday Monday, Shawne Borer-Fielding posted the biblical story of Solomon on her website. It tells about two prostitutes who are fighting over a child. Both claim to be the child's mother. Neither wants to give in until the wise Solomon suggests cutting the child up so that both can benefit. “No!” begs one of the prostitutes. “Cut it up!”, the other. Then it is clear to Solomon who the real mother is. Is Shawne Borer-Fielding saying that she gave up custody for the sake of the children? She could not be reached for comment.

In principle, Shawne Borer-Fielding would have the opportunity to appeal the district court's ruling to the higher court and, if necessary, to the federal court. If she doesn't do this, the verdict is almost irrefutable. “It is very difficult to change the distribution of custody retroactively,” points out Thomann. “You have to claim that circumstances have changed significantly and permanently or that the child is at massive risk.”

Future-oriented decision

For Shawne Borer-Fielding, it may be bitter that Horgen made a progressive decision in her case, of all things. According to the family law specialist, the Borer case could send a positive signal for court practice: “If I am honest, I am very pleased that the Borer case was decided in favor of a father. It would be nice if the ruling was forward-looking  

VeV comment

The current ruling by the Horgen District Court is surprising and makes people sit up and take notice.

First of all, it is of course very pleasing that the court is generally prepared to give custody to the father. This is despite the fact that Thomas Borer is not known as a househusband and is certainly dependent on outside care.

But then again it's actually unfortunate. Although the court has shown that it is prepared to make decisions regardless of gender, the question still arises as to why custody had to be awarded in this case at all. If the trips abroad were actually the only reason, it is absolutely incomprehensible why the two parents could not have joint custody.

We shouldn't make the mistake of celebrating now because the father has "won" here. Let's remember that in this case the children lost again, this time simply the other way around.

It is urgently time for the law to introduce joint custody, especially for parents who are temporarily unable to bring themselves to a joint application.

In this respect, Horgen's verdict is a success because it shows that more modern ways of thinking are slowly gaining ground, but a failure for co-parenting and, one way or another, a great loss for the two children.

The children's hope is that their father will act responsibly and allow the children unhindered access to their mother.

Thomas Borer as ambassador could become an ambassador for the cause of shared parenthood.