Federal Council adopts message on the revision of the Civil Code
(Press release, The Federal Council, 17 November 2011)
Bern. Joint custody will become the norm in the future, regardless of the parents' marital status. The child's welfare is central to this new regulation. Custody can only be denied to one parent if the child's interests must be protected. The Federal Council adopted the dispatch on the corresponding revision of the Civil Code (ZGB) on Wednesday. In a second step, the Federal Council will revise the maintenance law for unmarried and divorced parents.
In divorce proceedings, parental custody is generally awarded to one parent alone. If the mother and father are not married, current law grants sole custody to the mother. Joint custody is only possible if the unmarried or divorced parents submit a joint application and can reach an agreement regarding child support and care. Current law thus disregards gender equality.
In the future, both parents will have parental custody after a divorce. However, the court must ensure that the conditions for joint custody are met. Whether sole custody should be awarded to one parent in the best interests of the child is decided by the court in a divorce case, and by the child protection authority in the case of a child born out of wedlock. Possible grounds for revoking parental custody include inexperience, illness, disability, violence, or absence from the child's place of residence.
The introduction of joint custody as the norm represents a significant change for unmarried parents. If the parents cannot reach an agreement, joint custody will not automatically be granted. In such cases, one parent can contact the child protection agency. This agency will then order joint custody unless it is not in the best interests of the child.
Joint custody means that, in principle, the parents make all decisions concerning the child together. However, this principle should not be abused by one parent to make life difficult for the other. Therefore, the parent who primarily cares for the child may make decisions alone regarding everyday or urgent matters. This includes issues such as nutrition, clothing, and leisure activities.
The revision also regulates the determination of the child's place of residence. If one parent wishes to change their own residence or that of the child, this generally requires the consent of the other parent. Consent is not required if the change of residence takes place within Switzerland and has no significant impact on the exercise of parental responsibility. This is the case, for example, if the commute is no longer or even shorter after the move. If the parents cannot agree, the court or the child protection authority decides on the child's place of residence.
The Federal Council is temporarily refraining from explicitly criminalizing the obstruction of visitation rights by the custodial parent. Punishing a parent could potentially harm the child. Furthermore, the courts and child protection authorities have the option of threatening parents with a fine if they fail to comply with visitation agreements (Art. 292 of the Swiss Criminal Code, Disobedience to Official Orders).
Parental responsibility encompasses the right and the duty to care for the child and to jointly provide for its maintenance. Regarding the latter aspect, current law is incomplete and outdated. This is particularly true for single mothers, whose maintenance—unlike that of divorced mothers—is not guaranteed, which indirectly also affects the child. If the income is insufficient to support two households, current law unilaterally burdens the custodial parent with the financial shortfall. They are dependent on social assistance, which they must repay if they later acquire assets. The Federal Supreme Court has deemed this regulation unsatisfactory and called for its revision. The Federal Council will therefore submit proposals for a new maintenance law for public consultation in the first half of 2012. Maintenance law, like parental custody, should be regulated in such a way that the child does not suffer any disadvantages as a result of the parents' marital status.