The proposed ZGB revision stipulates that divorced parents are legally entitled to joint custody even after the divorce. In order to ensure that custody rights are exercised as smoothly as possible, parents are obliged to submit their applications regarding care and maintenance of the child to the court. However, the court can also – ex officio or at the request of the parents – assign parental responsibility to one parent alone. His decision must always be based on the best interests of the child.

For parents who are not married to each other, the ZGB revision provides a different solution depending on the child relationship. If the father recognizes the child, both parents are legally entitled to custody. The parents are not obliged to conclude an agreement regarding the care and maintenance of the child. If you disagree, you can contact the child protection authority. At the request of one or both parents, the court can also entrust parental custody to the father or mother alone. If the father does not recognize the child, parental responsibility rests solely with the mother. If the child relationship is based on a paternity judgment, parental responsibility remains solely with the mother. However, the father can apply to the court to be awarded joint custody with the mother, provided this is compatible with the best interests of the child.

Current legal situation...
According to current law, in the event of a divorce, parental responsibility is transferred to either the mother or the father. However, the court can also leave parental responsibility to both, provided this is compatible with the best interests of the child, a joint application has been submitted and the parents submit to the court an agreement on the care of the child and the distribution of maintenance costs. If the parents are not married to each other, the mother has parental responsibility. However, like divorced parents, they can obtain joint custody under the same conditions.

...criticized from various sides
This legal situation has been criticized by politicians, scientists and fathers' associations for several years. It does not take enough into account the well-being of the child, who is dependent on both parents for his or her successful development. In addition, fathers and mothers are not treated equally. With a divorce, one parent, usually the father, loses his role as educator and representative of the child. He is often just a paying father with visitation rights. Joint custody in its current form can only provide limited relief. Since it depends on a joint application from the parents, it is not uncommon for a spouse to abuse their consent to obtain other benefits.

Shared parenthood despite divorce
When parental responsibility is assigned to one parent, not only the marriage breaks up, but also parenthood. In contrast, joint custody continues shared parenthood despite divorce and achieves equality between fathers and mothers. In this way, the importance of both parents sharing equal responsibility for raising the child is recognized. As during marriage, they continue to make decisions concerning the child, thereby maintaining a close and balanced relationship between the child and its parents and preventing a break between the child and the non-custodial parent.

Violation of visitation rights should become a criminal offense.
Under current law, the non-custodial parent and the child have a right to appropriate personal contact. In practice, however, the person entitled to care often prevents or makes it difficult to exercise visitation rights. There is practically no risk of sanctions, while the parent who does not return the child to the parent in custody can be prosecuted. This unequal treatment is intended to be eliminated with an addition to the criminal law that criminalizes the deprivation of minors: In the future, anyone who prevents a parent from exercising their visitation rights should also be punished.

Comment VeV 

The VeV warmly welcomes the opening of the consultation process.

A first look at the proposed revision shows very encouraging approaches. It is obvious that the Federal Council is willing to finally remedy the current injustices.

Both VeV and the umbrella organization for shared parenthood GeCoBi will look closely at the template.

We will provide further information here in the next few days.