The proposed amendment to the Swiss Civil Code stipulates that divorced parents automatically retain joint custody of their child after the divorce. To ensure the smoothest possible exercise of custody rights, parents will be required to submit their requests regarding the child's care and maintenance to the court. However, the court may also – either on its own initiative or at the parents' request – grant sole custody to one parent. In every case, its decision must be based on the best interests of the child.

For unmarried parents, the revised Swiss Civil Code (ZGB) provides for different solutions depending on the child's legal relationship. If the father acknowledges paternity, both parents automatically have custody. The parents are not obligated to reach an agreement regarding the child's care and maintenance. In case of disagreement, they can contact the child protection authority. However, the court can, upon application by one or both parents, grant sole custody to either the father or the mother. If the father does not acknowledge paternity, sole custody rests with the mother. If the legal relationship is based on a paternity court ruling, sole custody remains with the mother. However, the father can petition the court to grant him joint custody with the mother, provided this is in the child's best interests.

Current legal situation…
Under current law, in the event of a divorce, parental custody is awarded to either the mother or the father. However, the court can also leave parental custody with both parents, provided this is in the best interests of the child, a joint application is submitted, and the parents present the court with an agreement regarding the child's care and the division of maintenance costs. If the parents are not married, parental custody is granted to the mother. However, they can obtain joint custody under the same conditions as divorced parents.

…criticized from various quarters.
This legal situation has been criticized for several years by politicians, academics, and fathers' associations. They argue that it gives too little consideration to the child's well-being, as the child depends on both parents for their healthy development. Furthermore, fathers and mothers are not treated equally. With divorce, one parent, usually the father, loses their role as the child's caregiver and representative. Often, they are reduced to little more than a financially responsible father with visitation rights. Joint custody, in its current form, can only offer limited relief. Because it depends on a joint application from both parents, one spouse not infrequently abuses their consent to gain other advantages.

Joint Parenting Despite Divorce:
When sole custody is awarded to one parent, not only does the marriage break down, but so does the parental relationship. In contrast, joint custody continues shared parenting despite divorce and realizes the equality of fathers and mothers. This acknowledges the importance of both parents, who share equal responsibility for raising the child. As during the marriage, they continue to make decisions concerning the child, thus maintaining a close and balanced relationship between the child and both parents and preventing a rift between the child and the parent without custody.

Violation of visitation rights should become a criminal offense.
Under current law, the non-custodial parent and the child have a right to reasonable personal contact. In practice, however, the custodial parent frequently prevents or hinders the exercise of visitation rights. They face virtually no sanctions, while the parent who fails to return the child to the custodial parent can be prosecuted. An amendment to the penal provision that criminalizes the abduction of minors is intended to eliminate this inequality: In the future, anyone who prevents a parent from exercising their visitation rights should also be liable to prosecution.

Comment VeV 

The VeV (Association of German Consumer Organizations) extremely welcomes the opening of the consultation process.

A first look at the proposed revision reveals very promising aspects. It is obvious that the Federal Council is determined to finally rectify the existing injustices.

Both VeV and the umbrella organization for joint parenting, GeCoBi, will examine the proposal closely.

We will provide further information here in the coming days.