Taïsa Tadè-Klinkenbergh and Francesca Ranzanici Ciresa are partners at Klinkenbergh Legal, a law firm specializing in family law in the heart of Locarno, Switzerland. The law firm, founded at the beginning of 2023, accompanies and supports its clients throughout the entire process and promotes dispute prevention and alternative solutions. Join us as we delve into the insightful perspectives of Klinkenbergh Legal’s groundbreaking partners as they share their unique approach to family law and their commitment to advancing dispute prevention and resolution around the picturesque town of Locarno, Switzerland.
How does the Swiss legal system deal with the concept of shared custody and what criteria must parents meet to be eligible for such an arrangement?
Since 2014, parents have had the same rights and obligations in the upbringing and care of their children in the event of a divorce, the so-called shared parental responsibility. It is important not to confuse this principle with child custody. Joint legal custody is not automatically granted by a judge in the event of a separation or divorce; Each case is assessed individually. The judge will establish a custody arrangement that ensures the child’s stability and regular contact with both parents. In all matters involving children, the judge must put the child’s best interests first. Maintaining a close relationship with both parents is crucial to a child’s harmonious development, with the child’s ability to maintain such relationships whenever possible being particularly important.
In addition to assessing both parents’ parenting skills, the court also assesses their ability to communicate and cooperate consistently regarding their children. It is important to note that a parent’s resistance to shared custody does not automatically indicate a lack of necessary cooperation. The geographical distance between the parents’ homes is also an important factor. The primary concern is to ensure the child’s continued growth and development in a supportive and loving environment. In addition, stability, particularly in relation to the child’s previous living situation, is of utmost importance. Joint custody is even more suitable if the parents shared custody responsibilities before the separation. Other factors taken into account are the child’s age, relationships with (half) siblings and integration into the larger social community. All of these elements contribute to determining the most appropriate custody arrangement in the best interests of the child.
Joint custody should only be disregarded if the relationship between the parents regarding the welfare of their other children is so hostile as to give rise to a reasonable belief that joint custody would expose the child to significant conflict between the parents, which is clearly the opposite of what is best for the child.
Can you explain how the child’s preferences play a role in custody decisions? At what age do their opinions typically carry weight in court?
The child’s wishes are one of several criteria when deciding on access and custody. When examining the child’s will, the child’s age and ability to form their own will must be taken into account. It is assumed that this ability is present from around the age of 12.
According to Section 314a Paragraph 1 of the German Civil Code (BGB), the child must be heard personally and appropriately by the court or a third party commissioned by the court, unless the age of the child or other valid reasons conflict with this. The child’s participation in the hearing is anchored in his or her fundamental rights and serves to establish the facts of the case. For older children, the focus is on protecting their individual rights and granting them the right to participate. For younger children, the hearing serves primarily as an evidentiary hearing, allowing the judge to form a personal perspective and gather additional information to accurately understand the situation. Therefore, parents, as parties to the proceedings, can request the child’s hearing, but this is usually automatic, regardless of the parties’ submissions.
The child’s capacity to make judgments within the meaning of Article 16 of the Civil Code is not a prerequisite for the hearing. According to the guidelines of the Federal Court of Justice, a child can be heard from the age of six. This age requirement applies regardless of the fact that it is generally assumed that formal logical thinking develops between the ages of eleven and thirteen and that the ability to differentiate and verbal abstraction typically matures during this time. Before reaching this age, the primary purpose of the child’s hearing is to give the judge the opportunity to form a personal opinion and gain a comprehensive understanding of the child’s situation, which will be helpful in establishing the facts and making a decision. The choice of the person who may conduct the child’s hearing is generally at the discretion of the judge. However, it is contrary to the legal principle to systematically transfer this responsibility to a third party, since it is essential for the court to form its own, immediate opinion. Therefore, the responsible court usually conducts the hearing itself. In exceptional cases, the hearing can also be carried out by a pediatrician, for example a child psychiatrist (particularly in the case of expert examinations), or an employee of the child protection service. These issues are particularly sensitive cases in which special skills are required to avoid damage to the child’s health, for example in cases of suspected pathogenic family relationships, acute family conflicts, noticeable disorders in the child or age-related considerations.
If the judge has to intervene several times in the same domestic dispute or if the original decision is appealed, the child does not necessarily have to be heard each time. In addition, if the child has already been heard by a third party, often as part of an expert report, the judge may waive a new hearing if this would place an intolerable burden on the child, for example in the case of acute conflicts of loyalty. In such situations, if no new result is expected from a further hearing or if the expected benefits do not adequately outweigh the burden of the new hearing, the judge may rely on the results of the third party’s previous hearing. This assumes that the third party is an independent and qualified professional, that the child is interviewed on the relevant aspects of the case and that the hearing or its results are current. It is important to emphasize that any decision to waive a new hearing assumes that the child has been given the opportunity to express his or her opinion and that the results of the previous hearing remain relevant to the decision-making process.
The “valid reasons” for waiving the child’s hearing in accordance with Section 314a Paragraph 1 BGB include the risk of endangering the child’s physical or mental well-being. It is important to note that the mere fear of inflicting the stress of a hearing on the child is not sufficient reason for waiver. To justify missing the hearing, that fear must be well-founded and the risk must exceed the inherent burden of a procedure where the interests of children are at stake.
Have there been any recent legal developments in the area of custody arrangements in Swiss family law?
On September 25, 2023, the People’s Chamber largely supported a motion that proposes alternating custody arrangements as the standard arrangement when parents separate. When parents divorce in Switzerland, alternating custody of children could become standard practice after Marco Romano approved a motion in the National Assembly with 112 votes in favor and 42 against. The motion calls for changes to the Civil Code to facilitate this change.
However, the Federal Council expressed reservations about alternating custody and pointed to challenges not only in parental contact, but also to practical factors such as the distance between the parents’ homes and the associated increases in costs. In addition, there are structural concerns such as the labor market and the availability of out-of-home childcare facilities, which are not always easy to reconcile. The Federal Council emphasized the importance of prioritizing individualized solutions that enable the child to maintain relationships with both parents while placing the child’s best interests at the center, rather than imposing alternating custody obligations. The decision now lies with the Council of States.
Contact details:
Taïsa Tadè-Klinkenbergh, founder
Klinkenbergh Legal
Piazza Grande 14, 6600 Locarno
Tel: +41 91 760 00 50
E: tk@tklegal.ch
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