SWITZERLAND Trends and Developments Contributed by: Giovanna Bonafede, Manuela Brenneis-Hobi, Prof Dr Annette Spycher and Vanessa Thompson, Kellerhals Carrard
If custody is shared equally, each parent contributes both in kind and financially, based on their capacity, ie, income exceeding their own essential needs. If the custody shares are unequal, but both sides are actively involved, and their financial capacities are the same or very similar, the financial contributions should be allocated in inverse proportion to the share of care provided. If both parents take care of the child, it must still be assessed whether one parent is unable meet their own needs. This can occur even if both parents work and share childcare responsibilities. The care contribution will therefore be borne by the parent with the higher financial capacity. Childcare maintenance in patchwork families Patchwork families are those with children from dif ‑ ferent unions. There is no established case law on how to calculate and allocate the care contribution when the parent who takes care of the child faces a shortfall due to the birth of another child from a different relationship. To date, the Federal Court has only found empirical solutions adapted to individual cases, whereas legal commentators have differing opinions regarding how maintenance should be calculated in such situations. Selected Questions Regarding Children Born to Unmarried Cohabiting Parents Recognition and parental responsibility Children of unmarried parents are treated equally by law to those born within marriage. However, if the parents of a child are not married, they will have to complete a few additional formali ‑ ties, particularly with regard to establishing the child’s parentage. Under Swiss law, except in cases of adoption, mater ‑ nal filiation is established at birth. Regarding paternal filiation, for children of married parents, Swiss law establishes the presumption that the mother’s husband is the legal father of a child born
during the marriage. However, this presumption does not apply to children of unmarried parents. Therefore, paternal filiation must be established by recognition or by court declaration. The father may recognise the child when the parent- child relationship exists only with the mother. The child cannot be recognised if a paternal filiation link already exists with the mother’s husband either through the legal presumption, a prior recognition or a paternity judgment, unless the previous paternal filiation link is legally terminated. The child may be recognised either before or after birth. Recognition takes place by a declaration before the civil registrar, by will or, if an action to estab ‑ lish paternity is pending, by a declaration made to the court. Recognition establishes the filiation link between the declarant (legal father) and the child. If it takes place after the child’s birth, its effects are retro ‑ active to the date of birth. When the father recognises the child, the parents may also choose to exercise joint parental respon ‑ sibility over their child. Parental responsibility covers all important decisions concerning the welfare and upbringing of children, including decisions relating to health, education, religious upbringing, schooling, administration of property, etc. It also includes the right to determine the child’s place of residence. While married parents automatically have joint paren ‑ tal responsibility from the child’s birth, if the parents are not married, the father will only obtain joint paren ‑ tal responsibility if both parents make a joint declara ‑ tion to that effect. If one of the parents, typically the mother, refuses to submit a joint declaration, the other parent may apply to the Child Protection Authority (CPA) at the child’s domicile to request joint parental responsibility. The CPA will, in principle, grant joint parental responsibil ‑ ity, unless the child’s best interests require that the mother retains sole responsibility or that it be assigned exclusively to the father. In practice, joint parental responsibility is now the standard, and the conditions for it not to be granted are quite strict.
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