With its decision of June 1, 2010 (5D_171/2009), the Federal Supreme Court dealt a severe blow to joint custody. According to this decision, joint custody should henceforth no longer be able to prevent the custodial parent from moving abroad.
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Moving away is permitted in cases of sole custody.
She does not need permission from the authorities and is neither committing a crime, nor is it an abduction within the meaning of the Hague Convention. In this specific case, a mother with sole custody intended to move to the Czech Republic with her children. The district court and the superior court revoked the father's custody rights, arguing that this was the only way for the mother to move away with the children against the father's wishes without facing legal repercussions. The federal judges ruled that revoking custody on this basis was unnecessary. Custodial rights, as part of parental responsibility, allow the mother to determine the children's place of residence. The father, as the holder of "residual parental responsibility," no longer has any right to participate in decision-making. He is essentially only permitted to participate in decisions concerning key aspects of the children's lives, such as choosing a name, religious upbringing, or medical procedures, the highest state judges ruled. Furthermore, the Federal Court clarified that even with sole custody by the authorities, relocation abroad can be prohibited if there is a serious risk to the child's welfare. This was not the case here. Federal Court, Judgment of June 1, 2010 (5D_171/2009) |
VeV comment With this ruling, the Federal Court contradicts all currently valid views according to which joint custody is intended precisely to enable important decisions in the child's life to be made jointly. This generally refers to decisions regarding religious affiliation, naming, educational career, etc., but also to residence, at least as far as the country is concerned. Moving to another country is indeed a very significant, and therefore very important, event in a child's life. They lose their familiar surroundings and a large part of their caregivers, often in a way that is permanent. The Federal Court's meager explanation that this could be compensated for by adjusted visitation rights is mere lip service, as the non-custodial parent often has little to no chance of actually enforcing such an arrangement in another country. Given the difficulties one can already encounter in enforcing visitation rights in Switzerland, this is hardly surprising. Furthermore, it must be expected that the child will gradually become estranged from the parent remaining in Switzerland, whether intentionally or simply due to circumstances. Joint custody is intended precisely to ensure that both parents share responsibility for their children, even after a separation or divorce. However, with this decision, the Federal Court undermines this intention on a crucial point, thereby opening the door to further abuse. Even though current law does not allow anyone to be forced to remain in their immediate vicinity, we believe the law should actually be tightened on this point. We believe it is absolutely in the child's best interest to be able to maintain unimpeded contact with both parents. It is, moreover, quite detached from reality for the court to believe that contact between father and child can be maintained through visitation rights exercised abroad. Anyone who briefly considers what it means to travel hundreds of kilometers every two weeks for just a few hours of contact can imagine the strain this places on both parents and children. In other countries, such a situation is resolved relatively elegantly by granting the parent wishing to leave permission to do so, while simultaneously transferring custody to the parent remaining in Germany. Perhaps the Federal Court might one day bring itself to take such a step – miracles do happen! |