Custody dispute: The Borer case could be groundbreaking.

It must have been a devastating blow for Shawne Borer-Fielding. The Horgen District Court has ruled that her husband, Thomas Borer, will not be granted custody of their children, Ruby and Roman. Family lawyers are surprised by this decision. "Fathers usually only receive custody if the mother can be accused of serious wrongdoing. And that wrongdoing has to be substantial," emphasizes Kathrin Thomann, a Zurich-based specialist in family law. "If the father has a certain level of public profile, like Mr. Borer, that's probably also an advantage."

Exceptional case

For the past ten years, Thomann, whose main business is divorces, has very often represented men. "During this time, I've only been able to secure custody for four men in contested cases." Why exactly the court ruled in favor of Thomas Borer is unclear. The Horgen District Court declined to comment, as family law cases are generally not public. However, the fact that Horgen in particular ruled in favor of a father greatly surprised Kathrin Thomann: "I have a very high opinion of the Horgen District Court, but it's not exactly known as a particularly progressive court."

Swiss law, on the other hand, is clear: If parents cannot agree on joint custody, the court awards custody to the parent who is best able to safeguard the child's welfare. Since the revision of divorce law, fathers and mothers are, in principle, equal in this regard. That's the theory. In practice, however, a different picture emerges. In the vast majority of cases, fathers are left empty-handed, and mothers more or less automatically receive custody. Kathrin Thomann speaks of a "tunnel vision" on the part of the courts and experts, which she considers outdated.

Were Shawne Borer-Fielding's trips abroad decisive?

What happened? What was so serious that Shawne Borer-Fielding was denied custody? According to the "Sonntag" newspaper, one of the arguments put forward by Borer's lawyer was Shawne Borer-Fielding's frequent trips abroad. Is that enough? "Yes. If one parent demonstrably travels a great deal, custody may be awarded to the parent who offers more stability," says Kathrin Thomann. Theoretically, custody is granted to the parent who can better care for the child personally. This is particularly important with young children.

But Thomas Borer, an entrepreneur active in Europe and the USA and a board member of several companies, is unlikely to be able to care for the children around the clock. It's possible he has hired a nanny for Ruby and Roman. "Personal attention is crucial. However, if the child is consistently cared for by the same person, that's naturally better than if they are cared for irregularly by a parent."

Cryptic blog post

In a cryptic blog post yesterday, Monday, Shawne Borer-Fielding shared the biblical story of Solomon on her website. It tells of two prostitutes fighting over a child. Both claim to be the child's mother. Neither is willing to concede until the wise Solomon suggests cutting the child in half so that both can have a share. "No!" pleads one prostitute. "Cut it in half!" replies the other. Then Solomon knows for sure which is the true mother. Is Shawne Borer-Fielding implying that she relinquished custody for the sake of the children? She could not be reached for comment.

Shawne Borer-Fielding could, in principle, appeal the district court's ruling to the High Court and, if necessary, to the Federal Supreme Court. If she does not, the ruling is virtually irrevocable. "It is very difficult to change the custody arrangements retroactively," Thomann points out. "One has to demonstrate significantly and permanently altered circumstances or a serious risk to the child."

Forward-looking decision

It must be a bitter pill for Shawne Borer-Fielding to swallow that Horgen made a progressive ruling in her case. According to the family law specialist, the Borer case could set a positive precedent for future legal practice: "To be honest, I'm very pleased that the Borer case was decided in favor of a father. It would be wonderful if the verdict were to set a precedent." 

VeV comment

The recent ruling by the Horgen District Court is surprising and raises eyebrows.

First of all, it is certainly very encouraging that the court is generally willing to grant custody to the father in some cases. This is despite the fact that Thomas Borer is not known as a stay-at-home dad and will certainly also rely on external childcare.

But then again, it's also regrettable. Although the court has shown that it is willing to decide regardless of gender, the question remains as to why custody had to be awarded in this case at all. If the trips abroad were indeed the sole reason, then it is completely incomprehensible why the two parents couldn't have joint custody.

We shouldn't make the mistake of celebrating now that the father has "won." Let's remember that in this case, too, the children have lost, only this time the roles are reversed.

It is high time that the law introduces joint custody, especially for parents who are temporarily unable to agree on a joint application.

In that respect, the Horgen verdict is a success as it shows that more modern ways of thinking are slowly gaining ground, but a failure for joint parenting and, in any case, a great loss for the two children.

It is to be hoped that the children's father will act responsibly and grant them unhindered access to their mother.

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