Child Custody in Switzerland: Criteria Used by the Court

Joint Parental Authority

Since 1 July 2014, joint parental authority is the rule even after separation or divorce (art. 296 para. 2 CC). Sole parental authority is only attributed if the child's best interest requires it (art. 298 para. 1 CC). Parental authority covers important decisions; custody concerns day-to-day living arrangements.

Criteria (ATF 142 III 481, ATF 144 III 481)

The determining criterion is the child's best interest (art. 296 para. 1 CC):

1. Educational capacity: ability to provide care, education and emotional stability
2. Personal availability: time for personal care, especially for young children
3. Stability and continuity: maintaining familiar environment, school continuity
4. Child's wishes: considered based on age and maturity; hearing mandatory (art. 314a CC)
5. Siblings: the principle of not separating siblings (ATF 136 III 353)

Alternating Custody

Since ATF 142 III 612, may be ordered even against a parent's will if it serves the child's best interest. Requires: educational capacity of both parents, geographical proximity, minimum communication ability, and availability.

Curator and Child Protection Services

In complex situations, a representative curator may be appointed (art. 299 CPC). Child protection services may prepare a parental competency assessment report.

Modification

Possible if important new facts justify it (art. 134 para. 1 CC). The threshold is high (ATF 141 III 472).