(c) Tagesanzeiger 2010. By Denise Jeitziner
In Switzerland, unmarried fathers have no right 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: Unmarried fathers in Germany will now be able to sue for joint custody in court. Until now, German women alone had the right to decide whether an unmarried father could see his children or not.
The Federal Constitutional Court did not decide entirely of its own volition. It was, in a sense, compelled to do so by the European Court of Human Rights. Last December, the Court ruled that the German custody regulations violated the prohibition of discrimination under the European Convention on Human Rights, following a case brought by a German father before the European Court.
A solution independent of marital status is sought
“We are very pleased with the decision of the German Constitutional Court,” says Oliver Hunziker, president of the umbrella organization for shared parenting (GeCoBi). Swiss law also does not recognize a right to joint custody for unmarried fathers. If women refuse, unmarried fathers have no recourse. In 2005, the Wehrli motion called for a review of divorce law in this regard. Since then, work has been underway on the revision, which was released for public consultation at the end of March 2010.
“We are looking for a solution in which parental custody is regulated independently of marital status,” says Felix Schöbi, Head of the Civil Law and Civil Procedure Department at the Federal Office of Justice. Unmarried men are clearly included in this, although the press release following the consultation process may have given the false impression that this is not the case. Currently, discussions are still underway regarding how joint custody will be automatically granted to unmarried fathers. In the first model, the unmarried father receives custody as soon as he acknowledges the child after birth. In the second model, the father should at least be able to sue the mother or contact the child protection authorities in the event of a dispute.
The right to apply is discriminatory
However, Oliver Hunziker of the Swiss Association for Joint Parenting criticizes this point: "The right to apply is still discriminatory, and secondly, the courts would likely be overwhelmed if every father had to file a lawsuit to achieve the normal state of joint custody." For Hunziker, it is therefore incomprehensible that the Federal Council has abandoned 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 retreat. The notion that single men are fundamentally uninterested in their children no longer reflects today's reality.
Emotions usually run high when it comes to the issue of child custody. Felix Schöbi also experienced this during the consultation process. Feminist circles, in particular, made their voices heard, criticizing the government for being blind to the concerns of single mothers. "These groups don't fundamentally oppose joint custody, but they're making socio-political demands that go far beyond that," he says. Among other things, they're demanding that mothers and fathers share custody equally. While the demand is certainly well-intentioned, it's unrealistic, Schöbi argues. "If joint custody is actually made dependent on this, the proposal is doomed to failure."
The 50-50 approach was originally proposed by the Association of Responsible Parenting Fathers and Mothers (VeV), which is affiliated with the umbrella organization for shared parenting. The idea was intended to provoke discussion. It is often demanded that men should be more involved before they can be granted custody. "We wanted to make it clear that 50/50 would also mean that the mother could no longer automatically expect custody, but would also have to contribute and make an effort," says Oliver Hunziker. The idea was to force parents to find a joint solution for the child's well-being. "Custody issues aren't about mothers' and fathers' rights, but about the children."
New law no earlier than mid-2012
Nothing is decided yet. The Federal Council has promised a message on the revision of the Civil Code this year. It should arrive in October. "The Federal Council should seize the opportunity and return to the revolutionary idea from the consultation process," demands Oliver Hunziker. After all, the marital status of its parents is irrelevant to the child.
At best, Parliament can address the proposal next year. The revised law could come into force no earlier than mid-2012. However, the chances that unmarried 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."