This is How Parental Custody Works in Switzerland

According to Article 301a of the Swiss Civil Code (CC), parents have the right to decide on the place of residence of their child. The right to determine the child's place of residence is part of parental responsibility and is therefore granted to the rightful holders of this right. In the event of divorce or separation, a parent who has sole parental responsibility can determine the child's residence in their home.

However, if both parents have joint custody of the child, the child regularly lives in alternating rhythms with both parents in two separate residences. However, in Switzerland, only one legal residence is recognized for citizens. Therefore, a child of separated parents cannot have both parents' residences as its legal residence. In the case of joint custody, both parents must agree on a residence for their child.

What happens if one parent decides to move while the right to determine residence is jointly shared between the parents? According to the CC (Article 301a, Paragraph 2), the consent of the other parent is required for a move if:

• the new residence is abroad

• the new place of residence has significant implications for the parental responsibility of the other parent

However, if the child moves to a new location near the current residence, the other parent does not need to be asked for permission. However, the person moving is obligated to inform the other parent according to Article 301a, Paragraph 4.

The question of relocation can become complicated when both parents share custody of their children. In such a case, the child has two regular residences in the homes of both parents. If you do not agree to the other parent's move to another city or even another country, you can file an objection with a court or the child protection authority.

When making their decision, judicial authorities do not rely on the expediency of the move, but rather on the child's welfare, which is the basis for any decision in this matter. In disputes related to a move abroad, among other factors, the following criteria are crucial for judicial decisions (see Judgment 5A_450/2015):

• Does the child speak the language of the new place of residence?
• Is the country of relocation the country of origin of one of the parents?
• Does the child have family or relatives in the new country of residence?
• Is the country safe and does it guarantee stable living conditions?
• Can the child maintain a relationship with the parent remaining in Switzerland?
• Has the moving parent been the child's primary caregiver so far?
• What is the child's preference?
• Will the child's mobility be restricted by the move?
• Will the move abroad affect the child's education?

Example: Move and Joint Custody

For example, let's assume that you and your ex-spouse share joint custody of your child, and your child primarily lives at your home. You decide to move to the southern part of the country, about 100 kilometers from your current residence and to a region with a different language. Can you decide to move with the child on your own? The answer is no. If your ex-partner also has parental responsibility, you must obtain their consent for such a move. The child must then decide for themselves whether to accept this change of residence, which will significantly affect their life and well-being.

Article 301a of the Civil Code regulates the right to determine residence of parents to ensure that it is used in the child's best interests. This article is not intended to prevent parents from moving, but to ensure that a change in living situation does not have negative effects on the child's well-being. If questions about the child's residence cannot be resolved amicably between the parents, a court or child protection authority can be involved (Article 301a, Paragraph 5 CC).

Withdrawal of the Right to Determine Residence

In a joint custody arrangement, both parents have the right to determine the child's place of residence. However, as provided for in Article 310, Paragraphs 1 and 2 of the CC, this right can be revoked from one or both parents. Therefore, judicial authorities may decide to revoke this right from one or both parents if:

• The child's well-being is jeopardized at the residence of the parent concerned.
• The decision to stay at the place of residence is deemed unreasonable.

The withdrawal of the right to determine residence is considered a last resort when all other solutions, such as mediation, have failed. It is noted that the withdrawal of this right does not affect the access rights or maintenance obligations of the parent concerned.

If you do not agree with a residence-related decision of the other parent or if they have violated their duties, you can bring the matter before a court or the child protection authority. The authorities can then decide:

• To prohibit the move
• To confiscate the child's passport to prevent them from leaving the country
• To withdraw the right to determine residence from the respective parent

According to Article 292 of the Criminal Code, a report of disobedience can also be filed against the parent who has violated the right to determine residence.

Questions of parental authority, custody, and residence are complex and often emotionally charged. However, the consequences for the child's well-being can be significant, and decisions in this area should not be made lightly. This is the case, for example, with relocation issues, where a family law attorney can advise you on the best solution for you and your child. A family law attorney can provide you with comprehensive information about all your rights, duties, and options regarding custody and parental care.

The model of shared custody has been established in Swiss law for some time, but it has only truly become the standard model for separations since 2017. This model, unlike sole parental custody, is considered in the best interest of the child. Not least because every child, by law (Art. 273 CC), is entitled to regular and good relationships with both parents even after a separation or divorce, which are clearly promoted by living with both parents.

Shared custody has many advantages in this regard, including:

• Both the father and mother can regularly spend time with their child and are significantly involved in their upbringing.
• The relationship of both parents with their child remains intact despite the separation.
• The children also maintain a close connection to the family environment of their parents (grandparents, uncles, aunts, etc.).
• The responsibility and educational mandate for the child are evenly distributed between both parents.

In separations and divorces, children's issues are of central importance, and decisions should not be rushed. The future and personal development of the children are significantly at stake here. For parents confronted with this often emotionally difficult situation, legal decision-making can be complicated. Since the consequences of custody decisions are far-reaching, it is advisable to consult a family law attorney who can support you throughout the process. The attorney can advise you on the custody and care arrangement that is best suited for your family.