Shared parenting responsibilities even after the divorce

What do you think of these requirements? 
The demand for a care plan was helpless because, firstly, the law does not require minimum care for the second parent, and secondly, the care plan is not legally enforceable because there are no sanctions for non-compliance. It would have made more sense to require proof of the crime, i.e. proof of joint care after starting to live apart, instead of a care plan.

The Federal Department of Justice and Police is currently drafting a law in which joint custody should become the norm in the event of a divorce in the future.
What do you think is the significance of this change? If joint custody creates the hurdle to the normal situation, then this is less a contribution to reducing conflicts between the parents than an important step in raising awareness that the parenting responsibility of both parents continues after the dissolution of their relationship. Joint custody as a rule after a divorce also makes it more difficult for a parent to easily sneak out of parental responsibility because a special change procedure is always required for the subsequent exclusive allocation of children to one parent.

How can we prevent joint custody, if it becomes the norm, from becoming an alibi exercise for the benefit of fathers who have previously felt disadvantaged?
This danger cannot be effectively countered with legal means. You can't force fairness. The law would have to use sanctions to counteract abuses in dealing with parental custody. However, this would remove the foundation for fruitful and responsible cooperation between parents.

In which cases is joint custody not recommended?
If both parents submit a joint application to the court for exclusive allocation. If one spouse claims sole custody in the divorce proceedings, the judge must decide. In such a case, the party claiming sole custody will probably always prevail, because then there is much to suggest that the conditions for fruitful cooperation between the parents are not met.

The new law does not provide for joint custody as a rule for unmarried parents.
What do you think of this regulation? It contradicts the principle of equal treatment of legitimate and illegitimate children.

Is the transition from joint custody to sole custody or vice versa problematic?
It is important that custody can be changed after the divorce, because the family constellation can change very quickly. No particular problems are likely to arise in subsequent proceedings to change custody with a joint application by the parents for sole custody, while in the opposite case the risk cannot be ruled out that the concept of the best interests of the child will have to be used to prevent joint custody.

What role will hearing the children affected by a divorce play in joint custody as a rule?
Since 2000, it has been mandatory for the children to be heard by the divorce judge. However, things are not going well with the fulfillment of this duty, and that will not change as long as judges do not systematically receive the necessary psychological training from experts.

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 Association of Judges from 1988 to 1992. He has been working as a lawyer and mediator since 2001.

Comment by Max Peter, mediator, Bülach 

It is very much to be hoped that the deserving champions of joint custody will continue to do so attentively.  It still takes a lot of persuasion before the principle of shared and equal parenting responsibility for both parents after the dissolution of their relationship creates the hurdle to normality and is anchored in social consciousness. Only then will the arbitrary and abusive denial of joint custody - and also the child's contact with the other parent -  no longer be accepted unchallenged.

Authorities and courts will then seriously question the view, which is unfortunately still widespread today, that the party claiming sole custody is always able to prevail. They will recommend or, if necessary, oblige parents who are at odds to seek professional support (e.g. mediation) and to learn to put their children's interests first despite disagreements and - wherever possible - to look after them together. The consciously parent-focused approach relieves the affected children and releases them from the shared responsibility they usually assume for their parents' divorce or post-divorce conflicts. It strengthens parental competence and creates favorable conditions for more respectful interaction between parents.

Based on my experiences, more specifically child-related offers such as groups for children of divorce need to be created, where children gradually find their way back into their age-appropriate child role in a protected environment and learn to trust their perceptions again, to express wishes, to form their own opinion about the family changes to recognize the limits of their influence.

Children's hearings

The question of hearing children, like most other topics, is controversial among the public and among experts. Out of conviction, I agree with the opinion of the German child psychotherapist and educational consultant Dr. Helmuth Figdor. He believes that hearings and questioning of children by judges, experts and youth welfare office psychologists, unless they are involved in therapy or long-term contact, are not helpful and even warns that the problem in children is getting worse. Figdor draws the conclusion: 'My position is that it is wisest to avoid this type of questioning.(1)

 Sanctions frowned upon 

Violations against the welfare of children are not trivial offenses. The uncertainty, shyness or even refusal of some experts, authorities and courts to threaten sanctions against parents who act contrary to the child's best interests is astonishing. Through their passivity, authorities and courts support the parent who causes serious psychological harm to the child with his uncooperative strategy, Remo Largo states. (2)

Highly contentious divorced parents find themselves in a 'state of emergency' that makes it impossible for them to look after the interests and needs of their children. We have to face this fact. Largo: 'An uncooperative parent must be made abundantly clear that the child must have access to the other parent. If one parent denies the other parent visitation rights, this is reason enough to re-arrange custody arrangements.'3  

Practical experience with setting sanctions for non-compliance with official instructions contradicts the reservations often expressed about such measures. As a rule, parents are willing to cooperate fruitfully and responsibly with experts if the goals and approach are set   are transparent and comprehensible for them if they feel respected, if they know the rules of the game for cooperation and if they experience that, for example, B. receive unconditional, competent and concrete support in finding a solution as part of mandatory mediation.

The willingness of parents to cooperate is also largely determined by the respective social norms and values. If it is one day considered completely normal for children to be cared for together after a divorce, this will also become normal and therefore a matter of course for most parents. There will always be exceptions; The law should not be based on them, but rather on the needs and abilities of the majority of those affected, whose own resources it promotes and strengthens with appropriate measures, including, if necessary, proportionate sanctions.  

Violations of the child’s best interests should be recognized and dealt with as such. The prerequisite for this is a keen awareness of injustice and the declared willingness of all representatives of the various professions who are currently involved and, if necessary, later in the appeal case, to orientate themselves exclusively on the child's interests and rights when assessing specific situations and to come together to form a working alliance.

There is still a lot to do, including for pioneers. 

(1) Helmuth Figdor, in Ingeborg Schwenzer / Andrea Büchler, "Fifth Swiss Family Law Days" 28/29. January 2010 in Basel, series of publications on family law FAMPRA, volume 15   (2) Observer 07/08 April 4, 2008 

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