10 years have passed since shared parental custody was introduced as the norm.
So time for a look back and an outlook. With the introduction of joint parental custody as a rule, a major omission in the revision of divorce law could be corrected. While fathers in particular were at risk of being stripped of parental responsibility (custody) in the event of a divorce, now at least married fathers' legal status as a co-responsible parent has been ensured even after the divorce.
Unfortunately, it was not possible to ensure the same starting position for unmarried fathers. They had to be content with a slimmed-down solution, namely that they could apply for joint custody. A current initiative (24,419) by NR Philipp Nantermod aims to eliminate this disadvantage.
One of the most important aspects of joint custody is the shared determination of the children's place of residence. Article 301 of the Civil Code, known as the “Rein Article”, was intended to ensure that no child could be “restrained” without the consent of the other parent.
Unfortunately, practice has shown that this failed due to practical problems. It is only in the last two years that municipalities and cities have begun to be more restrictive when it comes to re-registering children. Before that, it was unfortunately far too easy to simply re-register a child. Even if the courts generally agreed with the other parent afterwards, it was often too late for the child to start school in the new place and so the child had essentially “fallen into the well”.
Our main criticism is directed at those municipalities and cities that are still not consistently implementing this important aspect. In doing so, they thwart the valid rights of parents and, in particular, children. Another criticism is aimed at authorities and especially schools, some of which have still not managed to properly implement the right to information in accordance with ZGB 275a and to ensure that both parents receive the same information. Although this has nothing directly to do with custody, it is at the same time an integral prerequisite for being able to exercise the rights and obligations arising from custody.