NZZ from September 27, 2010. By Claudia WIRZ
Joint parental custody should become the norm in divorces.
Almost half of all divorces involve underage children. The Federal Council is working on a draft law in which shared parental custody should become the rule.
In the event of a dispute, it is difficult to please everyone. This truism naturally also applies to divorces, and particularly when minor children are involved. Then it is not only important to regulate the interests of the divorcing spouses, but also to take the child's best interests into account. Because children generally don't want their parents to separate, this isn't always easy.
From the possible to the rule
Shared parental custody can be a possible way out of this dilemma. It assumes that shared responsibility for parenting does not have to stop after a divorce, but can continue if the parents are able to communicate with each other. The possibility of joint parental custody was the core of the divorce law revision of 2000.
Since then, affected parents have been able to apply for joint custody in the event of a divorce if they agree on this. This is the case for a significant proportion. In 2009, a total of 13,789 minor children were affected by divorce throughout Switzerland. In 7707, custody went to the mother, in 616 to the father and in 5432 to both mother and father together. The cantonal differences are sometimes quite large (see graphic).
Because a joint application is the prerequisite for the granting of joint custody, the current regulation can in fact amount to a kind of veto right for one parent - usually the mother. The Federal Council therefore wants to make shared parental custody the rule. The message on the corresponding amendment to the Civil Code is expected to be presented this autumn.
However, the planned change is anything but uncontroversial. It is vehemently rejected by the Zurich Women's Center, for example. The organization writes that the proposal is based on an ideal image of parental harmony that differs greatly from reality. She denies that joint custody can appease feuding parents. Rather, she expects that if it becomes automatic, it will make the life of the primary caring parent significantly more difficult, which would primarily affect the mothers. The idea was by no means as positively received as the Federal Council claimed, says President Irène Meier. The association of judges also expressed criticism. And the Swiss Bar Association itself opposed this in a fiery plea (NZZ from September 2, 2009).
Freiburg law professor Alexandra Rumo-Jungo sees the issue differently. She considers joint custody as a rule to be better than the current arrangement. What she criticizes about today's regulation is not just the de facto right of veto; Rather, the system of joint application encourages all sorts of “unholy quarrels” between spouses, which is not in the interest of the child. It would be better, she thinks, if custody wasn't even a point of contention.
Andrea Hauri from the Child Protection Switzerland Foundation, in turn, complains that the Federal Council's proposal focuses too much on equality between fathers and mothers, while child welfare is neglected. In principle, the foundation has no objection to joint parental custody as a rule, but a child welfare check must be carried out in each individual case to find out whether this option is the best for the child. This includes listening to the children affected. Children already enjoy the right to be heard, but Hauri believes that the courts often make it too easy for themselves.
Optimize instead of win
One person who has been conducting divorces since 1997 is Judge Thomas Hiltpold from the X court district in Thun. He does not consider the proposed change to the Civil Code to be mandatory. Anyone who meets the requirements for joint custody can have it today, he says. The trend is increasing. If the parents' relationship is strained by a massive rift, joint custody is out of the question anyway. Experience shows Hiltpold that the formal regulation of custody for the children does not play a major role. Children want clear conditions, lived relationships, and they are also satisfied with regulated visitation rights that have been tried and tested during the separation period. The more time passes, says Hiltpold, the less the legal form of custody plays a role. The content is crucial for everyone affected.
Psychologist Heidi Simoni from the Marie Meierhofer Institute for Children, together with Zurich law professor Andrea Büchler, examined the influence that legal practice has on children, mothers and fathers. The findings confirm Hiltpold's experience. A few years after the divorce, the majority of those affected are satisfied with life. However, 75 percent of fathers without custody and a third of mothers with shared custody experience conflicts.
Heidi Simoni therefore advocates for a form of custody that is both legally harmonious and suitable for everyday use. Simoni believes that it is wrong that a parent is only deprived of parental authority due to a change in marital status - i.e. a divorce. Instead, with a view to the child's best interests, the parents should be obliged to present the judge with a comprehensive agreement that explains which parent can assume which responsibilities for care and material security. The children would be helped, she says, if regulating children's concerns was less about winning and losing and more about finding everyday solutions. The implementation of children’s participation rights is also central to Simoni.