You are using an outdated browser. There may be optical and technical problems.
OK, CLOSE
Post-separation disputes about maintenance, visitation rights, or allowances: It’s not always love, peace and harmony in the home – and sometimes only seeing an attorney can help. You can find out the most important facts about custody in our blog.
Custody law regulates all aspects of childcare. The basic principle is the best interest of the child. In Switzerland, a distinction is made between several terms in this context:
Up to the age of 18, children are under parental supervision. Married couples usually share custody. However, in the event of separation or divorce and the associated custody disputes, a court must subsequently decide on custody, rights of access, custody orders, etc.
Legal issues relating to parental custody fall under family law. In the event of differences of opinion, it therefore makes sense to consult specialist lawyers for family or custody law.
When a child is born, both spouses receive joint custody. If they are not married, the mother receives custody until a joint custody declaration is made or paternity is established by a court. Joint custody remains in place even in the event of divorce and is only withdrawn from one or both parents in certain cases. However, it is possible to divide care and custody if the court decides how to divide care and custody on the basis of the relevant precepts in the proceedings. Parents sharing joint parental care must make important decisions in the life of the child together. These include, but are not limited to:
Everyday matters can be decided by the parent who has custody of the child. Matters are considered day-to-day if they concern the daily care and support of the child, for example determining bedtime.
On the other hand, the mother or father cannot decide alone if she or he moves with the children to another municipality and thus away from the other parent – provided that this move has a significant impact on the exercise of personal contact.
If the parents have joint custody, then both are legal representatives of the child and also administer the child’s assets.
All matters concerning registered partnerships of same-sex couples are not governed by family law. They are set out in the Partnership Act.
In the case of sole custody, the right of one parent to make parental decisions is revoked. As a rule, mothers or fathers are only granted sole custody if there are serious reasons to believe that the child’s welfare is at risk – for example in cases of abuse or physical violence. The right to information is not affected by the withdrawal of parental custody: The parent without parental custody will still be informed about special events in the child’s life. It is also possible to withdraw custody from a parent if the child’s assets are at risk or if the parenting choices are contrary to state values.
If new arrangements for parental care have to be made as a result of a divorce or settlement proceedings, the family court concerned in Switzerland has jurisdiction. In cases where “only” custody has to be adjusted, KESB is generally responsible.
As a rule, even if one parent has sole custody, both parents together exercise parental care. Parental custody is the right to live together with the child in a residential community, and to take care of the child’s daily needs.
If the child primarily lives with one parent, this is called sole custody. If the child lives with both parents, this is called shared or alternating custody.
With the exception of the place of residence, “parental custody” is in fact thus nothing other than responsibility for caring for the child. Even the parent who does not have the child with them very often after a separation or divorce still exercises responsibility of care as soon as the child is with them.
A basic distinction is made between custody and visitation rights. The parent who does not have custody may also maintain contact with the children in accordance with visitation rights. The scope of visitation rights is determined on a case-by-case basis; where alternating custody is possible, this is often by court order. Another well-known model is contact with the child on two weekends. Children’s interests are regulated by the court in an initial arrangement, and KESB then takes care of this if the arrangement is changed by divorced parents.
The parent who cares for the child can make unilateral decisions regarding day-to-day affairs, such as eating habits, activities, bedtime, or the child’s media consumption. Likewise, in urgent cases, a parent can make decisions by themselves if, for example, the child is in a life-threatening situation or the other parent cannot be reached.
A decision is not deemed to be an everyday decision if it entails consequences for the child’s life that are difficult to change – for example, a change of school or a medical procedure.
The freedom to make decisions also ends if the child’s welfare is at risk.
The two most important rights of a parent who does not have parental custody are the right to personal contact (right to contact and visitation) and the right to information.
Parents without parental custody can also obtain information about the child’s condition and development from third parties who are looking after the child.
According to the current legal situation, parental custody is initially the sole responsibility of the mother – as long as she is of legal age and not under comprehensive guardianship. In the case of unmarried parents, the child is either acknowledged or paternity is sued for.
By submitting this declaration for protection in cohabitation, joint custody is established by law even without marriage. If one parent refuses to submit the declaration regarding joint custody, the other parent can involve KESB(Kindes- und Erwachsenenschutzbehörde, Child and Adult Protection Agency). This authority decides on joint parental care if, to ensure the welfare of the child, parental care by the mother cannot be maintained or sole parental care cannot be appointed – solely or jointly – to the father. This also serves to establish the child’s relationship with the father and, if desired, to transfer parental custody to him.
The child and adult protection authority (KESB) is a specialist authority that is mandated by law. It is appointed by the cantons and makes ts decisions independently. With regard to family law, KESB functions in a similar way to a court.
The authority clarifies reports it receives, determines on account of its office whether a person is in need of protection or assistance and whether the welfare of the child is at risk, and decides whether these cases require legally ordered measures.
KESB only intervenes if voluntary support does not suffice or would not lead to the desired outcome. As a rule, the decisions it makes are reached by at least three members. Experts from the fields of law and social work must be represented.
Parents can prove the opposite by providing evidence that the arguments of the child and adult protection authority are incorrect. If measures are ordered by KESB, the parent concerned can take the appropriate legal action.
If the welfare of the children is at risk, then the child and adult protection authority should definitely be notified if it is not possible to clarify the situation within the family. The authorities will then clarify whether one parent must relinquish custody.
There is often a need for clarification between spouses, particularly in the area of child allowances and maintenance.
When do parents receive allowances and how much are they? These and similar questions are often clarified in court.
Provided this is not otherwise regulated by law, the parent who has custody or with whom the child primarily lives receives the family allowances.
Both parents are obligated to jointly pay for the support of their child – until the child has completed an adequate level of education. How the amount of support is divided and the time of care depends on the agreed or court ordered model for care. The more equitable the parents arrange the custody and care, the lower the cash amount for support will be.
Family judges calculate alimony and determine it according to the place of residence and financial situation.
The amount of child maintenance is determined either by a joint agreement between the parents – and corresponding approval by KESB – or by the court.
Child maintenance includes the care and upbringing of a child on the one hand and monetary payments to cover various costs on the other – such as those for:
According to established practice, the costs incurred for exercising visitation rights must be borne by the parent exercising said rights. However, if the mother or father do not have the financial means to do so – or, for example, do not have enough money for a car or public transportation – the costs can be transferred wholly or in part to the parent with custody.
The cost of an attorney is usually between CHF 200 and CHF 500 per hour. The hourly rate varies depending on the degree of specialization.
If there are extraordinary circumstances, the entitlement to personal contact can also be granted to other persons – especially relatives such as grandparents – provided this serves the wellbeing of the child.
Swiss citizens who are resident in Switzerland can apply for recognition at any civil registry office. If you are not a Swiss citizen or live abroad, recognition is possible at the following authorities:
Usually, you only have to show an ID and residence certificate to do so. The civil registry will tell you which additional documents have to be submitted.
Recognition against the mother’s will is possible, but only if another man has not already recognized the child or the mother is unmarried – in the latter case, the husband is considered the father by law. If another man has recognized the child, his recognition must first be contested in court.
Severin Stillhard is a theme manager who writes texts for AXA on topics related to legal protection, retirement planning and more.
