The Right to Determine Residence in Shared Custody (Alternating Custody Model)

There are two models for parental custody after a separation or divorce: sole parental custody by one parent or joint or alternating custody. The latter model has been legally the norm since July 2014 (Article 296 CC). Thus, after a separation, both parents usually retain parental custody, often including parental care. For some time now, a shared custody arrangement, known as alternating custody, has been increasingly agreed upon.

Parental custody according to Articles 301-305 CC includes the right to decide on the child's daily affairs (parental care), the right to make important and urgent decisions regarding the child, and to manage their assets. It also includes decision-making authority on matters of education and upbringing, as well as the right to determine residence.

When separated parents share parental custody and wish to arrange for alternating custody, the well-being of the child always takes precedence in this decision (Art. 298 CC). Ideally, the child should be able to spend equal time with both parents. In this way, they can maintain relationships with both parents and their family environment. For example, the child may change their residence every one to two weeks—hence the name "alternating custody." It is also less common for a child to spend one month with their father and the next with their mother. However, a 50% split is not always possible and depends on the individual availability of the parents. For example, it is also possible for the child to spend time with the second parent only every other weekend.

What Is the Right to Determine Residence?

The right to determine the child's place of residence is part of parental custody (Article 301a CC). While parental care determines with whom the child lives and who cares for them in daily life, parental custody gives its holders rights regarding the legal representation of the child, the management of their money, and the right to determine the child's residence (domicile). A parent who does not have sole parental care but has parental custody is also a decision-maker regarding the child's residence.

In the event of a separation or divorce, and if both parents retain parental custody, they also share the right to determine residence. It is important to note that Swiss citizens can only have one official residence. For this reason, the parents must agree on which of their two residences the child should officially be registered to live in.

Can the Right to Determine Residence Be Revoked from Parents?

If staying in one parent's home becomes unreasonable or dangerous for the child, the right to determine residence can be revoked from the respective parent according to Article 310 CC. The application for this revocation can be made by both parents or the child themselves to the child protection authority. The authority can also revoke the right to determine residence without a corresponding application if it recognizes a serious endangerment to the child's well-being.

If separated parents share parental custody based on alternating custody, they must cooperate and communicate well regarding the right to determine residence. According to the right to determine residence with shared parental custody, a parent can only move with the child with mutual consent. According to Article 301a of the Civil Code, the consent of the other parent with joint parental custody must be obtained before the move if...

• the new place of residence is outside of Switzerland.
• the move to a new home is associated with a significant disruption in the child's social environment and school commute.

For example, if the father, who has custody of the child during the week, decides to move to another canton, he must obtain the mother's consent. Both parents must then weigh the well-being of the child to determine if this change of residence is acceptable for the child. Furthermore, the parental custody of the other parent should not be restricted by the move in principle. However, according to Article 301a Para. 5 CC, a renegotiation of parental custody is possible.

Decision by the Child Protection Authority

In cases of disagreement between parents, the child protection authority can be called upon to decide solely based on the child's well-being. However, if one parent decides to move to the neighboring village, which does not involve a change in the child's social environment or an additional burden for the child, they do not need the consent of the other parent. However, in such a case, the obligation to inform about the child's new place of residence still applies according to Article 301a Para. 3 and 4 CC.

Special Case: Relocation with Sole Parental Custody

However, the situation is different if, unlike the alternating custody model, only one parent has been assigned sole parental care. Article 301a Para. 3 CC stipulates that this parent does not need to ask the other parent for consent to relocate with the common child. However, the obligation to inform about the child's new place of residence still applies.

The model of joint custody has only been the norm in Switzerland for a few years and is therefore still in its infancy. However, the questions of joint custody and determining the child's residence are crucial for the further development and well-being of your shared child. Therefore, you should always make a decision regarding the place of residence well-informed and taking into account the interests of your child.

It is therefore advisable to consult a family law attorney who can advise you on your rights and obligations regarding parental custody and care. In case of a dispute over the relocation of the other parent, the assistance of a family law attorney may be necessary to reach an amicable agreement and prevent escalation of the dispute, particularly in the interest of your child.