In a controversial ruling, the Federal Supreme Court is attempting to undermine the recently introduced joint custody law. In a press release, GeCoBi criticizes this attempt by Switzerland's highest court to interfere with political autonomy. Politicians have (belatedly, but at least…) determined that after a separation or divorce, both parents should remain responsible for their children. We do not want the Federal Supreme Court to dismantle this fundamental right through the back door.
Here is the press release from August 27, 2015:
Almost a year after the introduction of joint custody on July 1, 2014, the Federal Supreme Court today officially addressed for the first time when and under what conditions this principle can be deviated from.
In its ruling, the Federal Court concludes that "even a serious, ongoing conflict or a persistent inability to communicate between the parents necessitates sole custody if the deficiency negatively affects the child's welfare and an improvement can be expected from sole custody.".
GeCoBi considers this stance of the Federal Court to be explosive. The legislature has always made it clear that the principle of joint parental custody means that children have a right to contact with both parents even after separation, and that, in particular, both parents remain responsible and obligated to care for the children, legally enshrined in joint parental custody.
The Federal Court clarifies that it is necessary in every case "that the conflict or the breakdown in communication be significant and chronic. There is no justification for sole custody in the case of occasional disputes or disagreements, such as those that occur in all families and can particularly accompany a separation or divorce. Sole custody must remain the narrowly defined exception."
Nevertheless, this ruling sends a dangerous political signal. The very fact that persistent uncooperative behavior could lead to one parent being sidelined was one of the central aspects of the legal revision. The aim was to ensure that both parents retained responsibility in the future and to prioritize this responsibility over communication breakdowns between them. With this decision, however, the Federal Supreme Court is now reversing this principle and once again making it possible for contentious behavior to be rewarded, at best, by granting sole custody.
GeCoBi assumes that the courts will study the entire text carefully and thoroughly and will pay close attention to it in the application of this ruling.
Otherwise, the legislator's original intention will be reversed. Instead of deciding which parent is better at arguing, the courts should focus much more on who is more willing to compromise in the children's best interests. Long ago, the biblical King Solomon did precisely this – it's high time that courts in this country also adopted this principle more frequently.
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