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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 law will actually exacerbate disputes.
In the future, divorced spouses and separated cohabiting partners should, as a rule, receive joint parental custody. This is the aim of a draft law prepared by the Federal Council. What is your assessment of this paradigm shift?
The shift from the current system of unilateral, and usually maternal, custody to joint custody as the norm seems only logical to me. It signals that divorced spouses, while no longer partners, intimate partners, or life partners, remain parents who share the responsibility for their children. We are thus introducing equality in custody law. This makes sense as a credo and commitment for all those who are up to the task. But, and here I add a big but: Joint custody requires that even deeply divided parents should be able to reach an agreement on matters of upbringing, care, schooling, and residence. The problem of disagreement and the resulting disputes will persist and may even worsen.
What problems do you anticipate?
Joint custody inevitably necessitates personal contact between the parents. The basic principle is: everything concerning the child is decided jointly by the parents. Article 301 states: The parent with primary care can decide alone if – but only if! – firstly, the matter is routine or urgent, and secondly, the other parent cannot be reached with reasonable effort. This means that the parent with primary care can decide whether the child may wear pink or blue socks. But what if the mother wants the child to be raised vegan? Or if the father doesn't want his 13-year-old daughter to go to the gynecologist? These are no longer routine matters. And if one parent constantly tries to interfere in the other's life, they can make life a living hell. This can involve endlessly contacting child protection services and the police, and anything else they – or she – might think of.
Joint custody also implies a certain degree of physical proximity. What happens if one parent wants to change their place of residence?
This is where things get really tricky, especially in this age of ever-increasing mobility. Previously, the Federal Supreme Court ruled that the parent with custody could decide where they lived with the child. Now we have a completely opposite provision, which I fear will be very detrimental to the primary caregiver. The new wording is: "Parental custody includes the right to determine the child's place of residence. If the parents share custody and one parent wishes to change their place of residence or the child's residence, this requires the consent of the other parent or a decision by the court or child protection authority if a) the new place of residence is abroad or b) the change of residence has a significant impact on the other parent's exercise of parental custody." This will cause enormous conflict. I also gather from the wording that even if the child is in the mother's custody and the father has to change his place of residence for professional or personal reasons, he needs the mother's consent. And it gets even worse where the parents weren't married. In those cases, the mother only receives child support and nothing for herself. This means he expects her to be completely self-sufficient, yet he's allowed to interfere when she takes a job and lives with the child. I find that extremely problematic!
Let's stay with the topic of custody, the daily care of the child. What does the new law mean for custody?
Single mothers – and it is, after all, mothers who take on 80 to 90 percent of childcare – have it hard enough, and I don't believe this legislative revision will only help them.
My biggest concern is that the balance isn't right for the parent who has the primary caregiving responsibility, the one who seriously struggles with the daily grind of childcare and upbringing. Fortunately, the world is mostly made up of people who, despite everything, behave decently in difficult situations and who, even under the old system, managed to settle their divorces amicably. For those who are already doing well, who arrange childcare amicably, joint custody will hardly change anything. The others will have to accept that, in the worst-case scenario, one parent will now be involved in everything. Which, logically, can be very difficult with a difficult, jealous, quarrelsome, or controlling ex-partner.
If the mother is uncooperative today, a father can hardly enforce his visitation rights. Will he have better leverage in the future?
No, if the mother is being malicious, it will remain very difficult. And depending on the authority, the fathers then receive the response: "Well, what do you want? Should we have the police pick up the children?" This instills a terrible conscience in these fathers, and they often withdraw, saddened and deeply hurt, because they believe they are acting against the child's best interests by insisting on personal contact. The new legal regulations regarding custody will not change this, especially since the criminal sanctions included in the initial draft of the law have unfortunately been removed without replacement.
Unfortunately, they say…
I believe they should have had the courage to create certain means of exerting pressure for the very few, but extremely extreme cases where the sole aim is to make the other parent's life a living hell and to take revenge by withholding the child. 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 emphasize the child's welfare. Will the new custody law bring about an improvement for children?
Certainly in the sense of demanding shared responsibility for the child. The child's welfare, that is, the child's best interests, must be paramount. 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 acts – of course – ostensibly only "for the child's good." In reality, however, it's usually just projections of their own desires, for which they instrumentalize the child. Objectively determining the child's welfare remains the major challenge for child protection authorities. Above all, it depends on who works in these authorities. As a lawyer, I experience the whole spectrum: from outstanding and highly diplomatic to an absolute disaster – biased, domineering, impatient, and feudal.
What reasons are there for taking custody away from a parent?
Article 298 states that the court deciding on a divorce may grant sole custody to one parent if this is necessary to protect the child's best interests. But only then. That means: if one parent is clearly incapable of exercising custody, for example, due to mental health reasons; if someone has abused the child; if someone shows a complete lack of interest in the child; or if it is foreseeable that he or she (I am explicitly referring to both parents) will act against the child's best interests. These hurdles must be considered quite high, otherwise the entire legal amendment would be pointless.
Joint custody should also apply retroactively if one parent requests it. However, this only applies to cases that date back no more than five years. What does that mean?
This means that we are currently negotiating custody issues in ongoing divorce cases in a kind of vacuum. It makes almost no sense to insist on sole custody in negotiations if, after the law changes, it can be reversed against the will of the current custodian. This means that all mothers who, for whatever reason, were granted sole custody in the five years prior to the law's implementation and who have been managing their child alone and without problems until now, must expect their ex-partner to contact child protection services and insist on joint custody. Sometimes there were valid reasons why the mother withheld custody from the father. However, this also means that where there was no such valid reason, the father now has the opportunity to have a say in the child's life again. And I think that's right, as long as it's handled reasonably.