Switzerland's supreme court has set what it calls principles for deciding cases involving parents who live apart and want to move elsewhere in the country or even abroad, but share custody of children.
The Federal Court in Lausanne said in a ruling on Thursday that “the decisive question is to determine where, given the new situation, the best interests of the child will be preserved given the specific circumstances”.
The ruling was handed down in a case involving a woman from Bern who shares custody of her daughter with the father. The mother wanted to move to Spain with her daughter because of a new relationship with another man, but the girl’s father objected.
The mother then asked Bernese authorities to consent to her relocation, but they refused and a lower court upheld that decision. The Federal Court, ruling on the mother’s appeal, concluded that she may not move abroad with her daughter because it was in the girl’s best interests to be with her two parents in Switzerland.
The Federal Court said other key factors were that the mother’s new relationship was “not yet stable” and that moving to a country with a language and culture unfamiliar to both the mother and daughter was not in the child’s best interest.
Joint custody the new rule
After years of generally favoring the mother in disputed custody cases the Swiss federal law changed in July 2014 to become more father friendly. It now makes joint custody the rule rather than the exception in cases where it is feasible and in the best interests of the child. The law applies to “parental authority”, which includes the right to determine where a child resides.
“When parents have joint parental authority and one of them wants to change the child's place of residence by departing abroad, they must obtain the consent of the other parent or, in cases of disagreement, the child protection authorities, respective of the court,” the Federal Court said in an online statement to the press, published in German and French, on Thursday.
“The central point is the welfare of the child is determined by the specific circumstances of the case,” the court said. “If children were previously supported more or less equally by both parents and they are willing to continue this support, a move must be determined on the basis of the circumstances of the case which solution will guarantee the future best interests of the child.”