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Peter Liatowitsch (66) is a lawyer, notary and mediator with his own law firm in Basel. He believes that the new equality in custody will even fuel disputes.
In the future, divorced spouses and separated cohabiting partners should have joint parental responsibility as a rule. This is what a bill drawn up by the Federal Council wants. How do you assess this paradigm shift?
I think the change from the current status of one-sided and then mostly maternal care to shared care as the norm is only logical. It is a signal that divorced spouses are no longer partners, intimate partners or life partners, but remain parents who share the care of their offspring. We are thus introducing equal rights in custody. This makes sense as a credo and confession for all those who are up to this task. But, and here I put a big but: Joint custody means that even deeply divided parents should be able to come to an agreement on matters of upbringing, care, school and residence. The problem of the lack of agreement and the associated disputes will remain and even worsen.
What kind of problems do you expect?
Joint custody inevitably requires personal contact between the parents. The basic rule is that everything that concerns the child is handled by the parents together. Article 301 says: The parent who looks after the child can decide alone if - but only if! – firstly, the matter is everyday or urgent and secondly, the other parent cannot be reached with reasonable effort. This means whoever looks after the child can decide whether the child can wear pink or blue socks. But what if the mother wants the child to grow up vegan? Or what if the father doesn't want his 13-year-old daughter to go to the gynecologist? These are no longer everyday matters. And if one person constantly wants to have the shoe in the other's life, he can make his life hell. With the endless calls on child protection authorities and the police and everything he - or she - can think of.
Shared concern also includes a certain spatial proximity. What happens if a parent wants to change their place of residence?
Things are also getting very tricky here, especially in this time of ever-increasing mobility. So far, the Federal Court has said that whoever has custody can decide where they live with the child. Now we have a totally opposite provision which I fear will, in effect, be very detrimental to the primary carer parent. It now says: “Parental custody includes the right to determine the child’s whereabouts. If the parents exercise parental responsibility jointly and one parent wants to change the place of residence or that of the child, this requires the consent of the other parent or the decision of the court or the child protection authority if a) the new place of residence is abroad or b) the A change of residence has a significant impact on the exercise of parental responsibility by the other parent.” This will cause huge controversy. I also understand from the wording that even if the child is in the care of the mother and the father has to change his place of residence for professional or personal reasons, he needs the mother's consent to do so. And things get even worse where the parents were not married. There the child's mother only receives a maintenance contribution for the child and nothing for herself. This means that he expects her to take care of herself, but is allowed to persuade her to take a job and live with the child. I think that is extremely problematic!
Let's stay with the care, the daily care of the child. What does the new law mean for custody?
Single mothers - and it is the mothers who take on 80 to 90 percent of the care - have it difficult enough, and I do not believe that we are only helping them with this revision of the law.
My biggest concern is that the balance is not right for the person who has the primary caregiving role, who is seriously struggling with the daily grind of childcare and parenting. Fortunately, the majority of the world consists of people who, despite everything, behave well in a difficult situation and have already settled their divorce amicably under the old regime. For those who are already doing well and who are caring for the children amicably, shared custody will hardly change anything. The others have to come to terms with the fact that, in the worst case scenario, someone will get involved everywhere. Which can logically become very difficult with a difficult, jealous, quarreling or controlling ex-partner.
Today, if the mother is stuck, a father can hardly enforce his visitation rights. Will he have better handling in the future?
No, if the mother wants something bad, then it will still be very difficult. And depending on the authority, the fathers then get the answer: “Yes, what do you want: Should we have the police pick up the children?” This gives these fathers a very dark conscience, and they often withdraw sadly and deeply hurt because they believe that they are acting against the child's interests if they insist on personal contact. The new legal regulation of custody will not change this, especially since the criminal sanctions provided for in the first draft of the law have unfortunately been deleted without replacement.
Unfortunately you say...
I believe that one should have had the courage to create certain means of pressure for the very few, but very extreme cases in which it is only a matter of making the other person's life hell and taking revenge by giving them their child withheld. Today we know that the longer visitation rights are interrupted, the more difficult it becomes for children to re-establish contact with the other parent.
They sound like the best interests of the child. Does the new custody bring an improvement for the children?
In the sense of demanding shared responsibility for the child, certainly. The child's best interests, i.e. the child's interest, must be the priority. That's right, and it can't be said often enough. But, and here I unfortunately see another big but: paper is patient, and the term child welfare is probably the most misused term of all. Every parent – of course – ostensibly only acts “for the good of the child”. In reality, however, it is usually just projections of one's own wishes that the child is exploited for. The objective determination of the child's best interests remains the major challenge for child protection authorities. What matters most is who is in the child protection authorities. As a lawyer, I experience the entire spectrum: from excellent and highly diplomatic to absolute catastrophe - partisan, domineering, impatient, feudalistic.
What reasons are there for taking custody away from a parent?
Article 298 states that the court deciding on a divorce shall grant sole parental responsibility to one parent if this is necessary to protect the interests of the child. But only then. This means: if a parent is clearly unable to take care of the child, for example for psychological reasons; if someone has abused the child; if someone shows a complete lack of interest in the child or it is foreseeable that he or she (I am explicitly talking about both parents) is acting against the child's best interests. But you have to imagine these hurdles to be relatively high, otherwise the whole change in the law wouldn't make any sense at all.
Joint custody should also apply retroactively if one parent requests this. However, only for cases that occurred no more than five years ago. What does that mean?
This means that we negotiate custody issues in a vacuum for ongoing divorce cases. It makes almost no sense to hold on to sole custody in negotiations if, after the change in the law comes into force, this can be converted back into shared custody against the will of the custody holder. This means that all the mothers who received sole custody for whatever reason in the last five years before it came into force and who have been driving their child alone and without any problems up to now must expect that their ex-partner will contact them contact the child protection authority and insist on joint custody. Sometimes there were valid reasons why the mother withheld custody from the father. But that also means that where there was no such good reason, the father now has the chance to have a say with the child again. And I think that's right, as long as it's handled sensibly.