CHILDREN'S RIGHTS AND PROTECTION

In Switzerland, joint parental authority is encouraged, as it is in the best interests of the child. However, when it is in the child's best interests, parental authority can be granted to just one parent.

If the parents are married, they automatically have joint parental authority. Even in this case, when it is in the child's best interests, the judge may award exclusive parental authority to one of the parents (art. 298 CC).

If, on the other hand, the parents are not married, they obtain joint parental authority on the basis of a joint declaration. Failing agreement and joint declaration, the child will be subject to the mother's exclusive parental authority (art. 298a CC). The other parent will then have to take legal steps to exercise joint parental authority and assert his or her rights.

There are two types of custody:

• Shared custody: the child moves from one home to the other for more or less equal periods, or the child always stays in the family apartment and the parents alternate for more or less equal periods.
• Sole custody: the child lives with one parent most of the time, and the other parent has more or less extensive visiting rights, but at least one weekend in two and half of school vacations (unless special circumstances necessitate restricting or even abolishing visiting rights).

The fact that parental authority is shared does not necessarily mean that, following separation or divorce, custody will be awarded to both parents on an alternating basis (i.e. for more or less equal period).

In the absence of an agreement between the parents on the exercise of custody following separation or divorce, the Court will have to award alternating or sole custody to one of the parents.

In its analysis, the Tribunal will be guided by the best interests of the child, which take priority over the interests of the parents. Several criteria are taken into account in the Tribunal's examination: in particular, the educational capacity of the father and mother, the availability of each parent to personally care for the child, the child's need for stability, the distance between the two homes, but also the ability to collaborate/cooperate with the other parent or the existence of a parental conflict.

These criteria apply irrespective of the status of the parents and the procedure (separation/divorce of married parents, dissolution of partnership/unmarried parents).

Parental authority includes the right to determine the child's place of residence (art. 301 al. 1 CC).

If the parents exercise shared parental authority, they may not change the child's place of residence without the agreement of the other parent, if the place of residence is abroad or if the move would have significant consequences for the other parent's exercise of parental authority and for personal relations (art. 301a para. 2 CC).

In the event of disagreement, a request for authorization to move the child's place of residence must be submitted to the competent authority. The starting point for the Court's analysis of this issue is the pre-existing childcare model.

Where the parent wishing to move had sole custody of the child, or was the reference parent, it will in principle be in the child's best interests to move with him or her, provided that similar care can be guaranteed.

On the other hand, where the child was more or less equally cared for by the parents, and each is willing to continue to do so, the initial situation is neutral, and the judge will apply the relevant criteria for awarding custody.

Since January 1, 2017, the new child maintenance law has come into force with a unified calculation method regarding the child's and spouse's/ex-spouse's support: the minimum living standard method with surplus distribution.

The maintenance contribution for a minor child is set on the basis of several criteria (art. 276 CC):

• the child's needs,
• the parents' financial situation (income and expenses),
• the child's assets and income,
• each parent's contribution to the child's care.

When custody is sole, the maintenance provided in “ nature ”, i.e. by daily care and attention (such as cooking, cleaning, laundry, shopping, homework help, care and presence in the event of illness, daily assistance, etc.) is equivalent to a financial contribution. It is therefore the non-guardian parent who must, barring exceptions, contribute to the maintenance by paying a maintenance contribution.

In the case of shared custody (50/50), each parent contributes to the child's maintenance according to his or her ability to pay. However, if one of the parents has no income and cannot be expected to earn any, the other parent may be required to assume full responsibility for the upkeep of the joint child.

When alternating custody is not exercised equally, adjustments are necessary to take into account both the care and the financial capacities of each parent.

In the context of separation or divorce proceedings, art. 298 para. 1 of the Swiss Civil Code provides that children must be heard personally and in an appropriate manner by the judge or by a third party appointed for this purpose, unless their age or other valid reasons prevent this. Before child protection authorities, art. 314a CC applies, and the principles remain the same.

The  hearing can take place from the age of 6 years old (TF 5A_104/2018 of February 2, 2021) and is essential from the age of 11/13 years old (ATF 131 III 553, TF 5A_93/2020 of August 25, 2020).

The child is auditioned alone and without his or her parents. The judge will ask the child any questions necessary for a proper understanding of the situation, and adapted to the child's age. The child's answers are recorded in a report and provided to the parents.

As mentioned above, the judge may appoint a third person to hear the child and draw up a report. As a general rule, this will be a member of the Service d'évaluation et d'accompagnement de la séparation parentale (SEASP) in Geneva, or the Direction générale de l'enfant et de la jeunesse (DGEJ) in the canton of Vaud.

There are several options:

• Contact the debtor to understand the reasons for the delay and start negotiations;
• Initiate debt collection proceedings for unpaid amounts with the office responsible for the debtor's domicile, in order to recover the arrears;
• Requesting a notice to debtors (art. 291 CC): when certain conditions are met, the notice to debtors enables direct payment of future maintenance contributions by deducting the contribution from the debtor's monthly income (e.g. salary, disability pension, old-age pension, etc.);
• The filing of a complaint for violation of the obligation of maintenance (art. 217 CP) with the competent authority when the debtor voluntarily refuses to provide what he owes when he has the means or could have them.

With regards to family benefits, when the person for whom the benefits are intended (or his/her legal representative) can prove that the beneficiary/debtor is not transmitting them, a request can be made to the debtor's compensation fund to receive direct payment of family benefits and avoid non-payment (art. 9 para. 1 LAFam).