Observer 17/08 Text: Conny Schmid, Image: Jupiterimages
Would joint custody be better for the child in divorce cases? Parents' organizations are arguing. The opposing sides seem as entrenched as in a contentious divorce.
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| When mom and dad separate: children really only want one thing – for everything to go back to the way it was before. |
What begins full of love and hope often ends in bitter conflict: Nearly half of all marriages in Switzerland end in divorce. If there are children, custody must be renegotiated. It is usually awarded to the mother. One in ten divorces involves a custody battle. In the end, there are often only losers: a father who has to pay child support but no say in the matter; a mother who frequently struggles to make ends meet on her own, often barely scraping by; children who are missing a parent and who really only want one thing – for everything to go back to the way it was before (see also the article on this topic: Divorce: "It's difficult to remain a child").
Since the new divorce law came into effect eight years ago, joint custody has been possible. However, this requires the agreement of both parents. "Because the mother can usually expect to be granted sole custody in case of doubt, she effectively has a veto over joint custody," criticizes Oliver Hunziker. The president of the Swiss Association for Joint Parenting (Gecobi) demands that joint custody be introduced as the standard in Switzerland. It should apply automatically by law upon separation. The idea: Sole custody, not joint custody, should be the sole legal requirement in the event of a separation. "Parents remain parents, even if they go their separate ways. Current practice leads to fathers losing their children and children losing their fathers," argues Hunziker. Joint custody would therefore be primarily in the best interests of the child.
The mother is the number one caregiver
It's quite possible this demand will soon be implemented. Divorce law is facing another revision; the Federal Office of Justice is currently drafting a bill that is expected to go into consultation in October. Child custody arrangements are one of the key points. However, it is still unclear whether and in what form joint custody will be included as the standard arrangement.
While one side – especially organizations of divorced fathers – vehemently demands joint custody, the other side clearly rejects it. Anna Hausherr, General Secretary of the Swiss Association of Single Mothers and Fathers (SVAMV), doubts that such a regulation would solve the problems between divorced parents. "It is undisputed that fathers should be more involved in the care of their children, even after the divorce. But automatic joint custody is not the right way to achieve this," she says.
It would be better if couples made a corresponding agreement at the birth of their child and also addressed the possibility of a future separation. Traditional family models are still prevalent, even among divorced parents who already share custody. This means the mother takes care of the children and household and works part-time at most, while the father works full-time. As a result, the mother provides the majority of childcare and shares custody with a father who is barely familiar with the children's daily lives. Conflicts are inevitable.
In a 2003 survey of separated parents, one in three mothers with joint custody later wished for a different arrangement. "Those who effectively raise their children alone, yet still have to obtain the consent of their former partner for almost every decision concerning their offspring, are understandably frustrated," explains lawyer Linus Cantieni, head of operations for the study. It is a misconception to believe that an equal distribution of parental rights automatically leads to a better situation for the children. "Rather, it depends on the actual level of care provided by each parent."
Joint custody: normal in Europe
This is evident when looking abroad. Cantieni has compared, among other things, the various custody arrangements in Europe. Joint custody is now generally the norm. However, there are significant differences in its implementation. "In some countries, despite joint custody, with few exceptions, the decision-making authority regarding children's matters rests with the primary caregiver. But there are also countries where the primary caregiver may make decisions about the child's day-to-day affairs, but requires the other parent's consent for all other decisions," explains Cantieni. England belongs to the first group, Germany to the second. The second model harbors considerably more potential for conflict. "The parent who does not primarily care for the child must be involved in a great many decisions. However, it is often unclear which decisions this parent is allowed to participate in. This, of course, frequently leads to disputes between the former spouses."
Joint custody is therefore not automatically better for the child. "There is no study that proves, for example, that children have more contact with the non-primary caregiver simply because of joint custody. Or that the non-primary caregiver's payment record or willingness to cooperate improves," says Cantieni. Responsibility, love, and care cannot be mandated.
Nevertheless, the legal expert advocates for the introduction of joint custody as the standard. He emphasizes the psychological impact: fathers should feel equally responsible for their children even after a divorce. Furthermore, he argues that the current system is far from satisfactory because it creates winners and losers. Cantieni suggests that it would be better to completely remove the custody issue from divorce proceedings by introducing automatic joint custody, while defining the parents' decision-making powers in a clear legal framework. This, he believes, should reduce conflicts over who gets to decide what. He has already submitted a corresponding proposal.
But this proposal is not universally popular. The umbrella organization of Swiss family organizations, Pro Familia, intends to use it as a basis for discussion, but is still divided. "We will only take a position during the consultation process," says Secretary General and CVP National Councillor Lucrezia Meier-Schatz. She indicates that joint custody is encountering fundamental opposition within the organization.
Anna Hausherr of SVAMV, who is also a board member of Pro Familia, finds the relatively far-reaching possibilities for challenging decisions of the other parent via the guardianship authority in Cantieni's proposal "not practical." She argues that there are already many avenues for the non-primary caregiver to object, for example, in the case of a change of residence or if a child wants to participate in a dangerous sport.
"Dilution of 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 joint parental custody." He believes that mediation should be prescribed in cases of disagreement (see also the sidebar "Contested Divorce: 'Intervene when things get emotional', above).".
The discussion seems to be following familiar lines: One side feels it's right that the mother, as the primary caregiver of the children, should also have a stronger legal position. The other feels disadvantaged, powerless, and wants to assert their rights. Let's hope that the well-being of the children isn't ultimately neglected in this debate.