(c) Tagesanzeiger 2010. By Denise Jeitziner
Unmarried fathers in Switzerland are not entitled to joint custody in the event of a dispute.
The decision of the German Federal Constitutional Court is as revolutionary as it is long overdue: In future, unmarried fathers in Germany will be able to sue in court for joint custody. Until now, German women were allowed to decide alone whether the unmarried father could see his children or not.
However, the Constitutional Court did not decide entirely of its own free will. It was, so to speak, reduced to this by the European Court of Human Rights. This decided last December that the German custody arrangement violated the ban on discrimination in the European Convention on Human Rights, after a German father took the matter to the European Court of Justice.
Looking for a solution that is independent of marital status
“We are very happy about the decision of the German Constitutional Court,” says Oliver Hunziker, President of the umbrella organization for shared parenthood (GeCoBi). Swiss law also does not recognize an unmarried father's right to joint custody. If women refuse this, single fathers have no opportunity to defend themselves. In 2005, the Wehrli postulate called for divorce law to be reviewed accordingly. Since then, work has been underway on the revision, which was sent out for consultation at the end of March 2010.
“We are looking for a solution in which parental custody is regulated regardless of marital status,” says Felix Schöbi, head of the civil law and civil procedure law department at the Federal Office of Justice. Single men were clearly included, although the media release following the consultation may have given the false impression that this was not the case. There is currently still discussion about how joint custody will automatically be granted to unmarried fathers. In the first model, the unmarried father receives custody as soon as he recognizes the child after birth. In the second model, in the event of a dispute, the father should at least be able to take legal action against the mother or contact the child protection authority.
The right to apply is discriminatory
However, Oliver Hunziker from the Swiss Association for Shared Parenthood criticizes this point: "The right to apply is still discriminatory and secondly, the courts would probably be overrun if every father had to file a lawsuit in order to achieve the normal status of joint custody." For Hunziker it is therefore incomprehensible that the Federal Council has deviated from the original revolutionary idea of treating fathers equally, regardless of whether they are married, divorced or single. He suspects that the often negative image of the single “one-night stand” father played a role in this decline. The fact that single men are generally not interested in their children no longer has anything to do with today's reality.
Emotions usually run high when it comes to custody. Felix Schöbi also had this experience during the consultation. Feminist circles in particular have spoken out clearly, complaining that they are blind to the concerns of single mothers. “These circles basically have nothing against shared custody, but they come with socio-political demands that go far beyond that.” Among other things, it is required that mothers and fathers each share 50 percent custody. The demand is certainly well-intentioned, but not realistic, said Schöbi. “If you actually want to make joint custody dependent on this, the matter is doomed to failure.”
The 50-50 approach was originally brought up by the Association of Responsible Fathers and Mothers (VeV), which is part of the umbrella organization for shared parenting. The idea should be provocative. There are often demands that men should get more involved before they can get custody. “We wanted to make it clear that 50/50 would also mean that the mother could no longer count on automatic allocation, but would also have to get involved and make an effort,” says Oliver Hunziker. The idea was to force the parents to find a common solution for the well-being of the child. “The custody issue is not about mothers’ and fathers’ rights, but about the children.”
New law no earlier than mid-2012
Nothing has been decided yet. The Federal Council has promised a message on the revision of the Civil Code this year. It should be ready in October. “The Federal Council should seize the opportunity and return to the revolutionary idea from the consultation,” demands Oliver Hunziker. Because the child doesn't care what marital status his parents have.
At best, Parliament can deal with the bill next year. The revision of the law could come into force in mid-2012 at the earliest. However, the chances that single fathers in Switzerland will soon have the prospect of joint custody are likely to be good. Or, as Felix Schöbi likes to quote Victor Hugo on the subject: “Nothing is as powerful as an idea whose time has come.”