Shared parenting responsibilities even after divorce

What do you think of these requirements? 
The demand for a custody plan was futile because, firstly, the law doesn't require a minimum level of care from the second parent, and secondly, the custody plan isn't legally enforceable because there are no sanctions for non-compliance. It would have been more sensible to require proof of actual shared custody after the separation, instead of a custody plan.

The Federal Department of Justice and Police is currently drafting legislation that would make joint custody the standard in divorce cases. What significance do you believe this change will have?
If joint custody becomes the norm, it's less about reducing conflict between parents and more about raising awareness that both parents' responsibility for raising their children continues after the dissolution of their relationship. Furthermore, joint custody as the rule after a divorce makes it more difficult for one parent to easily shirk their parental responsibilities, because a special modification procedure is always required to retroactively award exclusive custody to one parent.

How can we prevent joint custody, if it becomes the norm, from becoming a mere token gesture in favor of fathers who currently feel disadvantaged?
Legal measures alone are ineffective in countering this danger. Fairness cannot be enforced. The law would have to employ sanctions to address abuses of parental custody, but this would undermine the foundation for productive and responsible cooperation between parents.

In which cases is joint custody not advisable?
When both parents jointly request exclusive custody from the court. If one spouse claims sole custody during divorce proceedings, the judge must decide. In such a case, the party claiming sole custody will likely always prevail, because there is strong evidence that the conditions for productive cooperation between the parents are not met.

The new law does not provide for joint custody as the default for unmarried parents. How do you assess this regulation?
It contradicts the principle of equal treatment for children born in and out of wedlock.

Is the transition from joint custody to sole custody, or vice versa, problematic?
It's crucial that custody arrangements can be changed at all after a divorce, as family circumstances can change very quickly. Subsequent proceedings to change custody arrangements, with a joint application from both parents for sole custody, should not present any particular problems. However, in the reverse situation, there is a risk that the concept of the child's best interests could be used to prevent joint custody.

What role will the hearing of children affected by a divorce play in cases of joint custody as the norm?
Since 2000, hearing the children's perspectives has been mandatory for divorce judges. However, the fulfillment of this obligation is far from ideal, and this will not change unless judges receive systematic psychological training from specialists.

Peter Balscheit was president of the district courts of Sissach and Gelterkinden from 1970 to 2001, a part-time federal judge from 1982 to 1987, and president of the Swiss Judges' Association from 1988 to 1992. Since 2001, he has worked as a lawyer and mediator.

Comment by Max Peter, mediator, Bülach 

It is highly desirable that the dedicated advocates for joint custody continue their vigilant efforts. Considerable persuasion is still needed before the principle of shared and equal parental responsibility after the dissolution of a relationship becomes the norm and is firmly established in the public consciousness. Only then will the  arbitrary and abusive denial of joint custody – and likewise of contact between children and the other parent –  ​​no longer go unchallenged.

Authorities and courts will then seriously question the unfortunately still widespread view that the party claiming sole custody will always prevail. They will recommend to, or if necessary require, quarreling parents to seek professional support (e.g., mediation) and learn to prioritize their children's interests despite disagreements and – whenever possible – to pursue them jointly. A deliberately parent-centered approach relieves the burden on affected children and releases them from the shared responsibility they often assume for their parents' divorce or post-divorce conflicts. It strengthens parental competence and creates favorable conditions for a more respectful relationship between the parents.

Based on my experience, there is a growing need for child-specific programs, such as groups for children of divorce, where children can gradually return to their age-appropriate role in a protected environment and learn to trust their perceptions again, express their wishes, form their own opinion about family changes, and recognize the limits of their influence.

Children's hearings

The question of hearing children, like most other topics, is controversial in public and professional circles. I wholeheartedly agree with the opinion of the German child psychotherapist and educational consultant Dr. Helmuth Figdor. He considers hearings and questioning of children by judges, expert witnesses, and youth welfare office psychologists, unless they are part of therapy or a long-term relationship, to be unhelpful and even warns of an exacerbation of the problems for children. Figdor concludes: 'My position is certainly that it is wisest to refrain from such questioning.' (1)

 Disreputable sanctions 

Violations of the child's welfare are not trivial offenses. The uncertainty, reluctance, or even refusal of some professionals, authorities, and courts to threaten sanctions against parents who act contrary to the child's welfare is astonishing. Through their passivity, authorities and courts support the parent who, with their uncooperative strategy, inflicts serious psychological harm on the child, Remo Largo notes. (2)

Highly contentious divorced parents are in a state of emergency that makes it impossible for them to consider the interests and needs of their children. We must face this fact. Largo: 'An uncooperative parent must be made unequivocally aware that the child must have access to the other parent. If one parent denies the other visitation rights, that is reason enough to renegotiate custody arrangements.'3 

Practical experience with imposing sanctions for non-compliance with official instructions contradicts the often-expressed reservations about such measures. Parents are generally quite willing to engage in productive and responsible cooperation with professionals when the objectives and procedures are clearly defined.  They are transparent and comprehensible when they feel respected, are aware of the rules of the game for cooperation, and experience that they are supported unconditionally, competently, and concretely in finding a solution, for example, within the framework of mandatory mediation.

Furthermore, the willingness of parents to cooperate is largely determined by prevailing societal norms and values. If it is eventually considered perfectly normal for children to be jointly cared for after a divorce, this will also become the norm and thus a matter of course for most parents. There will always be exceptions; the law should not be geared towards these exceptions, but rather towards the needs and abilities of the majority of those affected, whose own resources it should promote and strengthen with appropriate measures, if necessary including proportionate sanctions. 

Violations of the child's welfare must be recognized and addressed as such. This requires a keen awareness of wrongdoing and the explicit willingness of all representatives of the various professions currently involved, and potentially later in appeal proceedings, to base their assessment of specific situations solely on the child's interests and rights, and to form a working alliance.

There is still much to be done, even for pioneers. 

(1) Helmuth Figdor, in Ingeborg Schwenzer / Andrea Büchler, "Fifth Swiss Family Law Days" 28/29 January 2010 in Basel, FAMPRA Family Law Series, Volume 15  (2) Observer 07/08 4.4.2008 

Max Peter, freelance family mediator SVM/SDM, co-leader of groups for children of divorce, expert for highly contentious divorced parents, Bülach