When divorced women take children away from their fathers without cause, the rule of law often stands idly by. CVP National Councillor Reto Wehrli wants to change that and is calling for more rights, but also more responsibilities. (c) 26.3.2011 Bieler Tagblatt. By Lotti Teuscher . Mr. Wehrli, do you understand that I absolutely do not want to be a man during a divorce?
Reto Wehrli: I can't make much sense of that statement.
As a woman, I receive child support and alimony, possibly also spousal support. I can falsely accuse the father of abuse or deprive him of the children despite visitation rights without facing any consequences.
This is a stark, and in most cases exaggerated, exaggeration, but it contains a grain of truth. The enforcement of court rulings seems to be a particular problem. If the rulings are not followed, for example, if visitation rights are denied, the rule of law should state: "Right now, the children will be returned to the non-custodial parent immediately, or we will enforce this by force." Unfortunately, this no longer happens with the necessary clarity.
Why?
This can almost only be answered psychologically. Judges in particular—and I emphasize, judges, not female judges—have developed a somewhat flawed understanding. They believe they must approach the matter with incredible leniency. This is a misunderstanding of the role of a judge, who must apply and enforce the law.
Recently, the media has increasingly focused on cases of men having their children taken away by the mothers, despite having visitation rights. Is this a phenomenon that's suddenly being sensationalized?
Fortunately, this is far from the norm. Nevertheless, even though it's a small percentage, we mustn't ignore such cases. We can't allow a gray area to emerge that we leave to the whims of just anyone.
What options do judges have to compel a mother to grant visitation rights?
When I was a court clerk 20 years ago, it was still common practice to issue an order stating: The child will be handed over, or the police will come in plainclothes and take the child away. Today everyone cries: No, that can't be right! Yet in most cases, the mere threat is sufficient. Ultimately, the rule of law must take itself seriously and enforce what it has previously decided.
It is said that children become traumatized when visitation rights are enforced by the police.
Such parents say: "I won't hand over my child, and if you don't agree with me, the child will be traumatized." But it is the parent who denies the other parent access to the child who bears the responsibility for any negative consequences. You cannot blackmail the other parent and the rule of law by withholding your own child.
No one seems to consider that a child can be traumatized if they are not allowed to see their father.
This brings us back to the realm of normalcy, as we have only discussed exceptional cases so far. My motion in the National Council is not aimed at child abduction or the withholding of children, but rather at a solution for the 90 percent of divorces that are the norm. The goal of my motion is that children should be allowed to have a fully legitimate relationship with both parents. Both parents should be able to exercise their rights and fulfill their responsibilities.
You're now addressing your fight for joint custody and demanding that it become the norm.
Exactly. This is the foundation of everything. We rarely know exactly what children want, yet we talk about the child's best interests; everyone uses this term to justify their own desires. The only thing we can say with certainty is this: children generally want a healthy relationship with both parents, a relationship that is approached responsibly and where time is invested.
Parents who have amicably agreed to joint custody are very satisfied with it. But how is joint custody supposed to work if the parents are hopelessly at odds and can no longer communicate reasonably?
I have never experienced a divorce where the parents said: "We have a wonderful relationship, but we are divorcing now because of the children." It's the other way around: The relationship between the man and woman no longer works, but the relationship with the children does. Therefore, it's unnecessary to even include the issue of the children in the parental dispute. Rather, one should assume that the relationship with the children remains stable. Both parents continue to have responsibilities, rights, and obligations, regardless of their marital status.
What role does the court play in this?
The legislature and society must clearly express this: You, as parents, have a responsibility for your children simply by virtue of being a father and mother. Society must raise awareness, addressing all parents: You cannot escape your responsibility for your children. Regardless of your marital status, where you live, or your profession, you must provide for your children until they reach the age of 18. This would send a clear message and represent a small paradigm shift.
Let's take the example of a couple from the Seeland region who have been separated for years and therefore share joint custody: The mother refuses all communication and denies the father the opportunity to exercise his rights and responsibilities towards the child. What now?
There are already measures in guardianship law for joint parental custody, which need to be refined in the revised law. If one parent behaves in a completely defiant manner and prevents even minimal constructive cooperation with the other, then there must be consequences.
The responsible guardianship authority says its hands are tied because there's no court ruling on visitation rights.
They're now calling it an isolated case, the circumstances of which I'm not familiar with. However, in principle, the guardianship authority has the option of taking graduated measures. It should intervene constructively as early as possible and tell the parents: "Excuse me, you have a responsibility, your dispute isn't our concern, and we're now ordering mediation, for example, for the child's well-being. And if one of you doesn't cooperate, they'll face consequences." But sometimes the guardianship authorities are a bit too passive.
Her motion for joint custody was progressing well. Now, Federal Councillor Simonetta Sommaruga – reportedly under pressure from SP women – has linked the motion to a second proposal: Maintenance payments from divorced fathers should be set so high that they are left with less than the subsistence level. Why?
You would have to ask Ms. Sommaruga; I don't know. The two proposals must not be linked, as they are unrelated. Under Federal Councillor Blocher and Federal Councillor Widmer-Schlumpf, we had done excellent preparatory work. The project went through the consultation process, was revised again, and would now be ready for debate in Parliament. The crux of the matter is that Ms. Sommaruga's maneuver is delaying parliamentary consideration.
What are the SP women trying to achieve?
Hardly anyone in parliament understood Ms. Sommaruga's decision. The impression has been created that the linkage was made to appease SP women.
The Association of Responsible Fathers and Mothers is therefore sending Simonetta Sommaruga paving stones; so far, she has received over 1,500. Is it having any effect?
I don't know. But the action demonstrates that shared parental care is a very serious concern for society, supported by broad segments of the population, including women. Since I submitted the motion in 2004, there has been an intense discussion; the matter is, to put it colloquially, "settled." Once a month, a torchlight vigil is now held in front of the Federal Palace on Mondays. This, too, is a symbol of acceptance. It is truly incomprehensible that Ms. Sommaruga is now delaying the issue in Parliament.
For years now, the question of fault has played no role in divorces. From your perspective as a lawyer, is that good or bad?
I believe that, in principle, it's correct. In a relationship, which in most cases has lasted for years, there are such complex internal issues that the question of fault can hardly be resolved. The old saying that it always takes two to tango has a grain of truth to it.
But there are exceptions.
In isolated cases, it seems as if one partner is simply taking the easy way out of the marriage. This person follows a momentary impulse, a wish, or an idea, says "ciao," and may even take the children with them. The other partner is astonished and then also has to pay alimony. But, as mentioned, this is the exception.
Should the question of fault play a role in such extreme cases?
I ask myself this too. I believe that in such extreme cases, there is no satisfactory solution. Of course, one could decide that there should be legal consequences if someone leaves a marriage without cause. But that is hardly practical, because the lawyer will say in court: My client had reasons; she suffered severe emotional distress. How can one assess emotional distress? This is extremely difficult.
If the question of fault were clarified, couples could air their dirty laundry in court, which could have a cathartic and relieving effect.
I understand this argument, but believe me: airing dirty laundry in court, especially with the help of lawyers, is incredibly destructive. Most couples have already vented their frustrations before the divorce. They've accused each other of all sorts of petty grievances. It would be helpful if those seeking a divorce were required to undergo mediation; that is, to enter into a process where they learn to interact with each other in a minimally constructive way again.
Mediation is often touted as a panacea. But what if one parent refuses to find a solution and simply rejects every suggestion from the other?
Mediation isn't a magic bullet, but it is a viable tool for de-escalating tensions in a large number of cases. If one parent behaves in a blatantly obstructive manner, if they refuse any positive approach, legal consequences should be considered. In such cases, it must be determined that this person is unsuitable for joint custody. If necessary, parental rights must be revoked.
Which is not the case at the moment.
Yes, but that's precisely why we're aiming for new legislation. Again: That's exactly why it's so unfortunate that Ms. Sommaruga is now blocking the discussion. Parental custody is accepted, but we still need to find good solutions to certain issues.
We've been talking at length about couples who are arguing. You yourself have been married for a long time and are a father. Do you know the secret to a good marriage?
If there really were a magic bullet for a good marriage, someone would be making a business out of it. No, there is no secret to a good marriage. At most, what Goethe said in Faust applies: "He who strives ever onward, him can we redeem."
What does this mean for a couple with children?
It's a constant, never-ending task of personal and shared growth, of continually striving to improve. Then you will experience wonderfully beautiful moments, but also difficult ones that you can manage and overcome. What a prospect for happiness!