Shared parental custody becomes the rule

In the event of a divorce, parental responsibility is now usually assigned to one parent alone. If the mother and father are not married to each other, the mother alone has parental responsibility according to current law. Today, joint parental custody is only possible if the unmarried or divorced parents submit a joint application and can agree on the maintenance and care of the child. The current law therefore disregards the equality of men and women.

In the future, both parents will receive parental custody after a divorce. In the event of a divorce, however, the court must ensure that the requirements for shared parental custody are met. In the case of a divorce, the court decides whether parental responsibility should be allocated to one parent alone for the well-being of the child and, in the case of a child born out of wedlock, the child protection authority decides. Possible reasons for the withdrawal of parental custody include inexperience, illness, infirmity, violence or being away from home.

The introduction of shared parental custody as a rule represents a significant change for parents who are not married to each other. If the parents cannot communicate, shared parental custody will not “automatically” arise in the future either. In these cases, a parent can contact the child protection authority. This will grant joint parental responsibility unless this is not in the child's interests.

Shared parental responsibility means that the parents basically regulate everything that concerns the child together. However, this principle should not be abused by one parent to make life difficult for the other parent. Therefore, the parent who looks after the child is allowed to make decisions about everyday or urgent matters alone. Questions of nutrition, clothing and leisure activities should be considered.

The revision also regulates the determination of the place of residence. If a parent wants to change their place of residence or that of the child, this generally requires the consent of the other parent. Consent is not necessary if the change of residence occurs within Switzerland and does not have a significant impact on the exercise of parental responsibility. This is the case, for example, if the travel route is no longer or even shorter after the move. If the parents cannot agree, the court or the child protection authority decides the whereabouts.

For the time being, the Federal Council has decided not to explicitly criminalize the thwarting of the right to visitation by the person entitled to care. If a parent were punished, the child might also suffer. Furthermore, the courts and the child protection authority have the option of threatening parents with a fine if they do not adhere to agreements regarding visitation rights (Art. 292 StGB disobedience to official orders).

Parental responsibility includes the right and obligation to care for the child and to jointly support the child. With regard to the second aspect, the current law is incomplete and outdated. This applies in particular to the unmarried mother, whose maintenance - unlike in the case of the divorced woman - is not secured, from which the child also indirectly suffers. If the income is not enough for two households, the current law unilaterally affects the parent caring for the child and is affected by the financial shortcomings (cases of shortcomings). He is dependent on social assistance benefits, which he will have to pay back if he later regains his assets. The Federal Court described this regulation as unsatisfactory and called for a correction. The Federal Council will therefore submit proposals for a new regulation of maintenance law for consultation in the first half of 2012. Like parental custody, maintenance law should be regulated in such a way that the child does not suffer any disadvantages due to the marital status of the parents.