Under this title, the NZZ published the Swiss Bar Association's response to the consultation on September 2, 2009.
Read the article and GeCoBi's statement here:
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To the detriment of children The proposal on joint parental custody creates new conflicts
From the consultation committee of the Swiss Bar Association*
The Federal Council wants to introduce joint custody as the norm for divorced and unmarried parents. The proposal is meeting with resistance in legal circles: they argue that the plan focuses too heavily on the equality of fathers and mothers and would be detrimental to the primary caregiver and the children.
The Federal Council intends to establish joint custody as the default legal arrangement for divorced and unmarried parents. This would apply even in contested divorces or when unmarried parents live on different continents. Sole custody would only be awarded to one parent if paternity is established not through acknowledgment but through a paternity suit, or if the divorce judge deems the removal of one parent's custody rights necessary for the child's welfare. The Federal Council is thus proposing a legislative amendment that implements joint custody more radically than most other European countries.
Idealized notions The consultation committee appointed by the Swiss Bar Association regrets that the primary goal of the proposal is not the child's welfare, but rather the legal equality of fathers and mothers. Upon closer examination, the promotion of the child's welfare becomes a mere pretext. Joint custody as the norm is intended to force parents to improve communication and cooperation regarding the child. However, whether this will actually succeed in "educating" parents in the desired way must be seriously questioned. The positive effects of the planned amendment on the child's welfare are idealized in the report accompanying the preliminary draft. It is a misconception to believe that all, or even the majority, parents will be able to cooperate harmoniously after a divorce simply because of joint custody. The report acknowledges that an amicable agreement between the parents is key to the practical success of joint custody. However, this is not reflected in the text of the law itself. The text provides no guidelines for the judge to decide whether to grant sole custody to one parent. In our view, the judge should be explicitly obligated to assess the child's welfare in every divorce case and to decide on custody based on a set of criteria. Parental custody should only be left jointly to both parents if their communication and cooperation skills in matters concerning children have been established and they have agreed on a care plan.
Far-reaching pressure to reach an agreement
Whether joint custody is practical and serves the best interests of the child depends significantly on the competencies associated with the concept of parental custody. The preliminary draft implies that, with the exception of everyday and urgent matters, all other issues must be decided jointly by the parents. This far-reaching requirement for agreement significantly hinders the parent who primarily cares for the children. Therefore, the law should include a practical list of decisions that must be made jointly. All other decisions, such as determining the child's residence in Switzerland, should be made autonomously by the parent with primary custody. The preliminary draft ignores the fact that even parents who have mutually agreed on joint custody largely live according to a traditional family model, in which the mother is responsible for the children's daily care and the father visits. Even now, a third of these mothers would prefer sole custody in retrospect. It doesn't take a prophet to predict that this percentage will increase dramatically if joint custody is imposed on virtually all parents. The preliminary draft proposes to automatically grant joint custody to unmarried parents, provided the child is acknowledged by the father. This is based on the ideal scenario of cohabitation. Whether children of unmarried parents actually live with both parents in the majority of cases is not statistically proven and does not correspond with practical experience. Therefore, automatic joint custody is not appropriate even for unmarried parents. However, it should be possible for the parents to apply for joint custody.
Threat of punishment against parent
The new law proposes that the holder of custody rights be punished for denying visitation rights. While the threat of punishment can certainly have positive effects, it is welcomed, albeit with reservations. However, it must not be overlooked that the refusal to visit the other parent often originates with the child, and the primary caregiver could be unjustly subjected to criminal proceedings in such cases. To avoid unnecessary criminal proceedings, the right to file a complaint should therefore be reserved for the child protection authority. It is perplexing that the penal provision only targets situations involving sole custody, while the refusal to hand over the child in cases of joint custody, where visitation rights are superseded by shared custody, remains unpunished. Maintaining joint custody after divorce is generally desirable as the standard and objective. However, the proposal as a whole is insufficiently thought through. The preliminary draft creates new conflicts without resolving existing ones. The primary caregivers and children would bear the brunt of the cost of achieving this ideal. Therefore, the preliminary draft urgently requires thorough revision. * The consultation committee of the Swiss Bar Association on the topic of parental custody consists of the following specialist lawyers: Jasmin Brechbühler, Kai Burkart, Claudia Giusto, Hedi M´erillat-Holenstein, Andrea Metzler, Helen Schmid, Bettina von Koenig. |
Letter to the editor from the President of GeCoBi: (printed version on September 8, 2009) The shared parental responsibility that parents' organizations have long advocated encompasses far more than just joint custody. It also includes the responsibility to reach reasonable and mutual agreements in cases of separation and divorce. To this end, litigious measures such as court proceedings with legal representation should be avoided as much as possible in favor of mediation or arbitration. It's obvious that the Swiss Bar Association doesn't like this. To cite the child's welfare 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 run. Children are At the same time, thousands of children still lose their fathers every year without any apparent reason, simply because our outdated legal system automatically assigns them to their mothers. Joint custody as the norm is well-suited to correcting this one-sided situation. Oliver Hunziker, |
Letter to the editor from the President of GeCoBi: (Original version)
To the detriment of the children? Could it be that certain representatives of the legal profession are getting cold feet and fear losing their lucrative, contentious divorce cases? The shared parental responsibility that parents' organizations have long advocated encompasses far more than just joint custody. It also includes the responsibility to reach reasonable and mutual agreements in cases of separation and divorce. To this end, litigious measures such as court proceedings with legal representation should be avoided as much as possible in favor of mediation or arbitration. It includes the understanding that parents remain parents, even when they go their separate ways as a couple. It is obvious that the Swiss Bar Association is not pleased with this. Tragically, however, this apparent displeasure is so clearly evident, as it significantly diminishes the quality of the statement made in the article, in my opinion. As always, the lawyers are arguing in this case with the so-called "best interests of the child." The fact that this term is an empty phrase that can be used for any abusive purpose only adds insult to injury. To this day, there is no universally accepted definition of the term "best interests of the child." To use 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 run. Maintaining these relationships should be the noble duty of state authorities; instead, greedy lawyers still drive their clients (and especially female clients) into contentious divorces every day, which, after several proceedings and the airing of dirty laundry, inevitably lead to the parents losing all means of communication. Children are no longer solely a woman's responsibility, as is so often claimed. More and more fathers are actively involved in childcare and upbringing. More and more children actually have fathers. At the same time, thousands of children still lose their fathers every year without any apparent reason, simply because our outdated legal system automatically assigns them to their mothers. I would have expected more openness and foresight from the expert commission of the Swiss Bar Association. It's good that there are also more open and modern representatives among the members of the bar association. It is to be hoped that our politicians, although mostly also from the ranks of lawyers, will base their votes in the council more on the real circumstances than on the short-sighted interests of the legal profession. Oliver Hunziker, |