With its decision of June 1, 2010 (5D_171/2009), the Federal Court dealt a serious blow to joint custody. According to this decision, from now on joint custody should no longer be able to prevent the parent entitled to custody from moving abroad.
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If the child is in sole care, moving away is permitted.
She does not need permission from the authorities and is not committing a criminal offense, nor is it a case of kidnapping within the meaning of the Hague Convention. In this specific case, a mother with sole custody intended to move to the Czech Republic with the children. The district and higher courts withdrew custody of the father because this was the only way the mother could move away with the children against the father's will with impunity. The federal judges determined that withdrawal of custody was not necessary for this reason. The right of custody as part of parental responsibility allows one to determine the whereabouts of the children. The father, as the holder of “residual parental custody”, no longer has any right to co-decision. The highest state judges ruled that he would essentially only be allowed to have a say in key life planning issues, such as naming, religious education or medical interventions. The Federal Court also made it clear that moving abroad can be prohibited even if the child is in sole custody of the authorities if there is a serious threat to the child's well-being. That wasn't the case here. Federal Court, judgment of June 1, 2010 (5D_171/2009) |
VeV comment With this ruling, the Federal Court goes against all current views that joint custody should serve to make important decisions in the child's life together. This generally means decisions about religious affiliation, naming, school career, etc., but also about place of residence, at least as far as the country is concerned. Moving to another country is actually a very drastic and therefore very important event in a child's life. As a result, he loses his previous environment and a large part of his caregivers in a way that can often be seen as permanent. The Federal Court's meager explanation that this can be compensated for through adjusted visitation rights is pure lip service, as the parent entitled to visitation often has little or no chance of actually enforcing a corresponding regulation in another country. In view of the problems that can already be encountered in this country when enforcing a right of contact, this is not surprising. In any case, it must be expected that the child will gradually be alienated from the parent remaining in Switzerland, whether intentionally or simply due to the circumstances does not matter. Joint custody is intended to ensure that both parents share responsibility for their children, even after a separation or divorce. With this decision, the Federal Court destroys this intention in an absolutely central point and thus opens the door to further abuse. Even if, according to current law, no one can be required to stay in the immediate area, we are still of the opinion that the law should actually be tightened on this point in particular. We believe that it is absolutely in the child's interest to be able to maintain unhindered contact with both parents. Furthermore, it is quite out of touch if the court believes that contact between father and child can be maintained through a visitation right to be exercised abroad. If you briefly imagine what it means to travel hundreds of kilometers every two weeks for a few hours of contact, you can imagine the strain this puts on parents and children. In other countries, such a situation is solved relatively elegantly by allowing the parent who wants to leave to do so, while at the same time custody is allocated to the parent who remains here. Maybe the Federal Court will bring itself to take such a step - miracles are supposed to happen! |