On September 2, 2009, the NZZ published the Swiss Bar Association's response to the consultation under this title.
Read the article and statement from GeCoBi here:
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To the detriment of children Submission on shared parental custody creates new conflicts
From the consultation commission of the Swiss Bar Association*
The Federal Council wants to introduce shared parental custody as a rule for divorced and unmarried parents. The proposal is met with resistance in legal circles: the project is based too heavily on the equality of father and mother and has a detrimental effect on the main parent and the children.
The Federal Council wants to make joint parental custody a legal norm for divorced and unmarried parents. This should even apply to contentious divorces or to unmarried parents who live on different continents. Parental responsibility is only assigned to one parent alone if the child relationship is not established through recognition but rather as part of a paternity process or if the divorce judge considers the withdrawal of custody rights from one parent to be necessary for the well-being of the child. The Federal Council is thus proposing an amendment to the law that will enforce joint custody more radically than most other European countries.
Idealized ideas The consultation commission set up by the Swiss Bar Association regrets that the primary aim of the proposal was not the best interests of the child, but rather the legal equality of father and mother. On closer inspection, the promotion of children's well-being turns into a mere pretext. By making joint parental custody the norm, the parents are supposed to be forced to communicate better and cooperate more with regard to the child. However, whether it is possible to “educate” parents in the desired sense must be seriously questioned. The positive effects of the planned change on child welfare are idealized in the preliminary draft report. It is a misconception to believe that in the future all or at least the majority of parents after divorce will be able to cooperate harmoniously with one another simply because of shared parental responsibility. The report on the preliminary draft admits that an amicable arrangement between the parents is the key to the practical success of joint custody. However, this is not clear from the text of the law. This does not give the judge any guidelines for his decision to assign parental custody to one parent alone. In our view, the judge should be expressly obliged to carry out an examination of the child's best interests in every divorce case and to decide on parental custody based on a list of criteria. Parental responsibility should only be shared between both parents if their ability to communicate and cooperate in child-related matters has been established and they have agreed on a care plan.
Far-reaching compulsion to reach agreement
Whether joint parental custody is practical and whether it serves the child's best interests depends to a large extent on which competencies are assigned to the concept of parental custody. It must be derived from the preliminary draft that, with the exception of everyday and urgent matters, all other questions must be decided by the parents together. This far-reaching compulsion to reach an agreement results in a significant handicap for the parent who primarily cares for the children. The law should therefore include a list of the decisions that must be made together in a way that is suitable for everyday use. The main parent should be able to make all other decisions autonomously, such as determining the place of residence in Switzerland. The preliminary draft ignores the fact that even parents who have mutually decided to have joint parental custody largely live a traditional family model in which the mother is responsible for the children in everyday life and the father visits the children. Already today, a third of these mothers would, in retrospect, prefer sole parental responsibility. It doesn't take a prophet to predict that this proportion will rise massively if shared parental responsibility is imposed on virtually all parents. The preliminary draft also wants to automatically grant unmarried parents joint parental responsibility, provided the child is recognized by the father. The ideal case of cohabitation is assumed. Whether children of unmarried parents actually live with both parents in the majority of cases is not statistically proven and does not correspond to practical experience. Even for unmarried parents, the automaticity of joint custody is not appropriate. However, it should be possible for the parents to apply for joint custody.
Threat of punishment against parent
The holder of custody rights should now be punished if they refuse visitation rights. A threat of punishment can certainly have positive effects and is therefore welcomed with reservations. However, it should not be overlooked that the refusal to visit the other parent often comes from the child and in these cases the main parent could be unfairly exposed to criminal proceedings. In order to avoid unnecessary criminal proceedings, the right to apply should therefore be reserved for the child protection authority. What is strange is that the criminal provision only targets situations with sole custody and the refusal to hand over the child in the case of joint parental custody, where the right to visitation is superseded by joint custody. remains unpunished. Maintaining joint custody after divorce is generally desirable as a rule and as an objective. However, the template as a whole is not well thought out. The preliminary draft creates new conflicts without resolving existing ones. The main carer parents and children would have to pay the price for the desired ideal. The preliminary draft therefore absolutely needs to be thoroughly revised. * The consultation commission of the Swiss Bar Association on the subject of parental custody is composed of the following specialist lawyers: Jasmin Brechbühler, Kai Burkart, Claudia Giusto, Hedi M'e rillat -Holenstein, Andrea Metzler, Helen Schmid, Bettina von Koenig. |
Letter to the editor from the President GeCoBi: (version printed on September 8, 2009) Shared parental responsibility, as parent organizations have been calling for for a long time, encompasses much more than just shared custody. It also includes the responsibility to reach reasonable and collaborative agreement in the event of separation and divorce. To this end, means of combat such as legal proceedings with legal representation should be avoided as far as possible, in favor of mediation procedures such as mediation or arbitration. It is obvious that the Swiss Bar Association does not like this. Citing the best interests of the child as an argument against shared parental responsibility is almost cynical. International studies show that an equal relationship with both parents is best for children in the long term. At the same time, thousands of children still lose their fathers every year for no apparent reason, simply because our outdated legal system dismisses them as mothers. In order to correct this one-sided initial situation, the approach of joint custody is well suited as a rule. Oliver Hunziker, |
Letter to the editor from President GeCoBi: (Original version)
To the detriment of the children? Could it be that certain representatives of the legal fraternity are getting fed up and are seeing their lucrative divorce cases slipping away? Shared parental responsibility, as parent organizations have been calling for for a long time, encompasses much more than just shared custody. It also includes the responsibility to reach reasonable and collaborative agreement in the event of separation and divorce. To this end, means of combat such as legal proceedings with legal representation should be avoided as far as possible, in favor of mediation procedures such as mediation or arbitration. It includes the realization that parents remain parents, even if they go their separate ways as a couple. It is obvious that the Swiss Bar Association does not like this. What is tragic, however, is that this obvious displeasure is so clearly visible; in my opinion, this significantly reduces the quality of the statement made in the article. As always, the lawyers argue in this case with the so-called best interests of the child. The fact that this term is a hollow phrase that can be used for any purpose, no matter how abusive, only adds insult to injury. To this day there is no single, generally valid definition of the term child welfare. Using it here to deny shared parental responsibility is almost cynical. International studies by recognized experts have long shown that an equal relationship with both parents is best for children in the long term. Maintaining these relationships should be the noble duty of the state organs, instead, greedy lawyers are still driving their clients (and especially female clients) into a divorce every day, which, after several proceedings and extensive washing of dirty laundry, will certainly lead to the parents losing all level of communication . Children are no longer women's responsibility, as is emphasized again and again. I would have expected more openness and foresight from the expert commission of the Swiss Bar Association. It's good that there are more open and modern representatives among the members of the bar association. It remains to be hoped that our politicians, although most of them also come from the ranks of lawyers, will base their votes in the Council on real events rather than on the short-sighted interests of the legal caste. Oliver Hunziker |