The Commission strongly advocates that the principle of joint parental responsibility between mother and father be enshrined in the Civil Code, regardless of their marital status.
The commission adopted the draft amendment to the Civil Code (CC; 11.070) by a vote of 11 to 0, with 8 abstentions. It concurs with the Federal Council's version on most issues. It debated at length the relationship between parental custody and the right to determine the child's place of residence (Art. 301a). The commission concluded that this right is an integral part of parental custody. If the consent of both parents were no longer required for a change of residence that significantly impacts the exercise of parental custody, the objective of the new regulation would be fundamentally undermined.
In particular, the majority of the Commission requests deviations from the draft on the following points:
– By a vote of 13 to 2 with 3 abstentions, it requires, in the case of unmarried parents who do not live in the same household, an additional requirement for the allocation of joint parental custody: a maintenance agreement approved by the Child and Adult Protection Authority (Art. 298a).
– By a vote of 15 to 6, the Commission proposes – as a consequence of the repeal of Article 309 of the Civil Code – to expressly mention in Article 308 the possibility of transferring to the guardian the authority to represent the child in establishing the child's relationship with the father.
– In the transitional provisions, the Federal Council had proposed that a parental custody arrangement reached in the context of a divorce could only be revisited if the divorce had taken place less than five years prior to the entry into force of the new law. By a vote of 13 to 7, with 2 abstentions, the commission rejected this restriction (Art. 12 para. 5 Final Title).
Various minority groups are requesting further changes.