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Parental authority

Preliminary note: Swiss legislation on parental authority was revised in parliament in 2012 and early 2013 and will soon enter into force. The following information concerns the currently applicable law. For questions regarding the content and the date of application of the new law, we invite you to contact us directly.

Parental authority is handled differently in different countries, both terminologically ("parental authority" can be "parental responsibility") and rights thereunder (what decisions must be made jointly and what decisions can a parent take alone?).

Parental authority in Switzerland

Parental authority abroad

Recognition of domestic and foreign decisions concerning parental authority

 


 

Parental authority in Switzerland

Married parents have joint parental authority. During a separation or divorce, parental authority was, in the past, most often given to one parent, but in recent years it is increasingly common for courts to decide maintaining the joint parental authority if the parents agree . The percentages between single versus joint parental authority strongly vary amongst Swiss regions. With the entry into force of the revised Civil Code, as decided by parliament in 2013, joint parental authority will become the rule, however subject to certain exceptions. The fact that parents are not geographically close does not, in itself, qualify as grounds for withdrawal of joint parental authority.

For unmarried parents, the current law still gives sole parental responsibility to the mother. However, the child protection authority may give joint parental authority if parents submit an agreement that determines their involvement in the care of the child and alimony (art. 298a CC).

Parental authority provides that parents have the obligation and the right to care for their child. Even if the parents are separated, they are responsible to communicate and make decisions in the best interests of the child. If this is not possible, the court may give parental responsibility to one parent.

According to a decision of the Swiss Federal Court, the concept of right to determine the place of residence of the child is not related to parental authority, but to custody. This implies that the parent with custody (" Obhut ") can decide alone the place of residence of the child. Upon entry into force of the new law however, the right to choose the place of residence of the child will result from parental authority and will normally be exercised jointly by both parents (new art. 301a Civil Code)

Important: Visitation rights are also of great importance. Even when parental authority is exercised by one parent only, the child still has the right to maintain regular and close contact and have a meaningful relationship with the other parent.

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Parental authority abroad

Many countries do not distinguish between married and unmarried parents: the law provides for joint parental authority regardless of the marital status of parents.

Married or not: the parent, who lives with the child, even if they have sole parental authority, has in most cases the right to decide the issues of everyday life. In many countries, moving the child abroad, and in some countries even a simple trip abroad, requires the consent of the other parent, even if they do not live with the child, and cares little for it. Therefore, a parent who desires to leave his home country to settle in Switzerland must ensure that they have the right to do so and if so, obtain the consent of the other parent. Otherwise, they may be stopped at the border or see the child forced to return to the country of residency under the Hague Convention 80.

Legal bases vary internationally from country to country and rights granted to each parent under foreign law can therefore be determined only on a case-by-case basis.

Relocation to another country

Relocation to another country can also affect parental authority since it is the law of the new place of residence of the child that will apply and many national laws provide for joint parental authority as a basic principle. Therefore, if a mother leaves Switzerland for example with the child to relocate permanently in a country that also provides for joint parental authority for unmarried parents, the father will get in turn parental authority in this country. This means that if the mother leaves the country again without authorization of the father, it is legally possible that a return order could be initiated against her.  

Important :

After relocation, the former legal situation remains valid and the law of the new country of residence of the child becomes applicable as soon as the child has acquired habitual residence in the country.

In addition, among the signatory states to the Hague Convention of 1996 on Protection of Children, there is another special regulation: that parental authority can be obtained after relocation but can not be lost subsequent to relocation.

Recognition of Swiss and foreign decisions on parental authority

While it is clear that a court decision deploys effects in the country where it was taken, it is difficult to determine whether and how such a decision is recognized abroad. It is commonly accepted that the decision may be recognized, however, that often requires country specific procedures. Again, international rules help: If the States are bound by international conventions, notably the European Convention on parental authority and the Hague Convention of 1996 on child protection, recognition and enforcement of decisions is generally not a problem. It is different in non-Contracting States where necessary recognition-proceedings are often long and complex and do not guarantee satisfactory results.

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