In a controversial decision, the Federal Supreme Court is trying to overturn the recently introduced joint custody system.
In a media communiqué, GeCoBi criticizes this attempt by the highest Swiss court to intervene in the sovereignty of politics. Politicians have (lately, but still...) decided that after a separation or divorce, both parents should remain responsible for their children. We don't want the federal court to take away this fundamental right through the back door. Here is the Communiqué from August 27th, 2015:
Almost a year after the introduction of joint custody on July 1st, 2014, the Federal Supreme Court issued an official statement today for the first time on when and under what conditions this principle can be deviated from.
In its decision, the Federal Supreme Court came to the conclusion that "even a serious permanent conflict or a persistent inability of the parents to communicate requires sole allocation if the deficiency has a negative effect on the child's well-being and an improvement can be expected from sole allocation".
This attitude of the Federal Supreme Court is explosive in the eyes of GeCoBi. The legislator has always made it clear that the principle of joint parental care consists in the fact that children are entitled to contact with both parents even after the separation and that both parents in particular remain responsible and obliged to look after the children worries, legally held by joint parental care.
The Federal Supreme Court specifies that it is necessary in any case "that the conflict or the disrupted communication is significant and chronic. There is no reason for sole allocation in the case of isolated disputes or differences of opinion, as they occur in all families and can particularly accompany a separation or divorce. Sole allocation must remain the narrowly limited exception.”
Nevertheless, this judgment sends a dangerous political signal. The fact that a parent could be booted out as a result of persistently uncooperative behavior was one of the central aspects for the revision of the law. The aim was to keep both parents responsible in the future and to give this responsibility more weight than communicative disturbances between the parents. With the present decision, however, the Federal Supreme Court is now reversing this principle and making it possible again for disputes to be rewarded at best by the allocation of sole parental responsibility.
GeCoBi assumes that the courts will study the entire text carefully and thoroughly and will pay close attention to it when applying this judgment.
Otherwise, the original intention of the legislature is reversed. Rather than deciding which of the parents is better at arguing, the courts should focus much more on who is more likely to concede in favor of the children. A long time ago, the biblical King Solomon did exactly that - it is about time that the courts in this country would live more of this basic attitude.
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