SWITZERLAND Trends and Developments Contributed by: Giovanna Bonafede, Manuela Brenneis-Hobi, Prof Dr Annette Spycher and Vanessa Thompson, Kellerhals Carrard
Parental care and contacts In the case of joint parental responsibility, if the par ‑ ents separate, the question of how to organise care and contacts will arise. Joint parental responsibility does not necessarily imply the establishment of shared/joint care; care (formerly referred to as custody) of the child may therefore be assigned to only one parent. However, when the parents cannot agree on custody, the CPA (or the judge, in some cases) must determine whether establishing shared care is in the child’s best interests. When determining the attribution of parental rights, the well-being of the child is the fundamental princi ‑ ple under Swiss law. The CPA or judge must assess whether establishing shared/joint custody is actually in the best interests of the child. To this end, they must consider several criteria, primarily the parents’ educational abilities and their capacity and willingness to communicate and co-operate. If these abilities are present, the CPA or judge must then assess other cri ‑ teria, such as: • the geographical location and distance between the two parents’ homes; • each parent’s capacity and willingness to encour ‑ age contact between the other parent and the child; • the stability that maintaining the previous situation can bring to the child; • the ability of each parent to take personal care of the child; • the child’s age and membership of a sibling group or social circle; and • the child’s preferences regarding their own care, even if they do not have the capacity to make an informed decision on this matter.
The above criteria are interdependent and their impor ‑ tance varies depending on each individual case. If the CPA or the judge concludes that shared/joint custody is not in the child’s best interests, they must then determine which parent should be assigned pri ‑ mary custody, taking into account the same assess ‑ ment criteria outlined above. The CPA/judge has broad discretion in assessing these criteria. The child’s family name The child’s surname is strictly linked to the exercise of parental responsibility and may be determined by the parents. If, at the time of birth, parental responsibility is exer ‑ cised exclusively by one parent, usually the mother, the child takes that parent’s surname. If, at the time of birth, the parents share parental responsibility, they decide which of their surnames their children should take. If the father obtains joint parental responsibility after the child’s birth, the parents may, within one year of its establishment, declare before the civil registrar that the child should take the other parent’s surname. The surname will then be the same for all future common children.
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