Observer 17/08 Text: Conny Schmid, Image: Jupiterimages
Would joint custody be better for the child in a divorce? The parent organizations are arguing. The fronts seem hardened as if in a battle.
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| When mom and dad break up: Children actually only want one thing - that everything goes back to how it used to be. |
It is not uncommon for what began with love and confidence to end in bitter arguments: almost half of all marriages in Switzerland end in divorce. If there are children in common, custody must be reorganized. It is usually attributed to the mother. One in ten divorces involves a battle over custody. In the end there are often only losers: a father who is allowed to pay but not have a say; a mother who often lives alone on the edge of subsistence; Children who are missing a parent and who actually only want one thing – for everything to go back to how it used to be (see also article on the topic: Divorce: “It is difficult to remain a child”).
Since the new divorce law came into force eight years ago, joint parental custody has been possible. However, the condition for this is that both parents agree. “Because the mother can usually expect to receive custody in case of doubt, she de facto has the right to veto against joint custody,” criticizes Oliver Hunziker. The president of the Swiss Association for Shared Parenthood (Gecobi) is calling for joint custody to be introduced as a rule in Switzerland. It should automatically apply by law in the event of a separation. The idea: You should not have to apply for joint custody in the event of a separation, but rather sole custody. “Parents remain parents, even if they go their separate ways. Today's practice leads to fathers losing their children and children losing their fathers," argues Hunziker. Joint custody would therefore, above all, be in the child's best interests.
The mother is caregiver number one
It is quite possible that this requirement will soon be implemented. Divorce law is facing further revision; the Federal Office of Justice is currently drawing up a draft law that is expected to go into consultation in October. The custody arrangement is one of the central points. However, it is not yet clear whether and in what form joint custody will be accepted as a rule.
As vehemently as one side - especially organizations of divorced fathers - calls for joint custody, the other side clearly rejects it. Anna Hausherr, central secretary of the Swiss Association of Single Mothers and Fathers (SVAMV), doubts that such a regulation will solve the problems between divorcees. “It is undisputed that fathers should be more involved in looking after their children, even after divorce. But automatic joint custody is not the right means for this,” she says.
It would be better if couples made a corresponding agreement when the child was born and then dealt with a possible later separation. The majority still practice traditional family models, even with divorced parents who already exercise joint custody. This means that the mother takes care of the children and the household and only works part-time at most, while the father works full-time. The mother therefore provides a large part of the childcare and shares custody with a father who has little knowledge of the children's everyday life. Conflicts are programmed.
In a survey of parents living apart in 2003, one in three mothers with shared custody wanted a different arrangement in retrospect. “Anyone who actually raises the children alone, but still has to obtain the consent of their former partner for almost all decisions affecting the offspring, is understandably frustrated,” explains lawyer Linus Cantieni, operational manager of the study. It is a fallacy to believe that the equal distribution of parental rights automatically leads to a better situation for the children. “It depends more on the actual care provided by the parents.”
Joint custody: normal in Europe
This is shown by a look abroad. Among other things, Cantieni compared the different custody regulations in Europe. Today, joint custody is usually the norm. But there are big differences in the respective design. “In some countries, despite shared custody, the decision-making authority for children's matters rests with the main parent, with a few exceptions. But there are also countries in which the main parent is allowed to decide the child's everyday affairs alone, but is dependent on the consent of the other parent for the remaining decisions," explains Cantieni. England belongs to the first group and Germany to the second. The second model harbors significantly more potential for conflict. “The parent who does not primarily look after the child has to be involved in many decisions. However, it is often unclear which decisions this parent has a say in. Of course, this often leads to arguments between the former spouses.”
Joint custody is not automatically better for the child. “There is no study that would show that children have more contact with the parent who is not the primary carer simply because of joint custody. Or that their payment behavior or willingness to cooperate improves,” says Cantieni. A sense of responsibility, love and care cannot be prescribed.
Nevertheless, the lawyer supports the introduction of joint custody as a rule. He relies on the psychological effect: fathers should feel just as responsible for their children even after a divorce. In addition, the current regulation is anything but satisfactory because it creates losers and winners. According to Cantieni, it would be better to completely exclude the question of custody from the divorce proceedings by introducing automatic joint custody, but to enshrine the decision-making powers of the parents in a clear catalog in the law. This is intended to reduce conflicts over who can decide what. He has already submitted a corresponding proposal.
But this is not met with approval everywhere. The umbrella organization of Swiss family organizations, Pro Familia, wants to use it as a basis for discussion, but there is still disagreement. “We will only take a position during the consultation,” says Secretary General and CVP National Councilor Lucrezia Meier-Schatz. She suggests that shared custody is sometimes met with fundamental opposition internally.
Anna Hausherr from SVAMV, who is also a board member at Pro Familia, finds the relatively extensive options for taking action against the other parent's decisions via the guardianship authority in Cantieni's proposal "not practical". There would be many options for objections for the parent who is not the main carer, for example in the event of a change of residence or if a child wants to play a dangerous sport.
“Wilting down the idea”
Gecobi President Oliver Hunziker, on the other hand, sees the catalog of decision-making powers as a “watering down of the idea of shared parental custody”. In the event of disagreements, it is better to prescribe mediation, he believes (see also side article “Divorce: “Intervene when things get emotional”, above).
The discussion seems to run along familiar lines: one side feels it is right for the mother, as the children's main carer, to be given a stronger legal position. The other feels disadvantaged, powerless and wants to get her rights. We can only hope that the welfare of the child is not neglected in this debate.