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Joint Custody & Shared Physical Custody in Switzerland Martin Widrig

Joint Custody & Shared Physical Custody in Switzerland Martin Widrig. Joint Custody & Shared Physical Custody in Switzerland. Table of Contents Insight into Switzerland Divorce Behaviour Share of Parental Tasks Custody Shared Physical Custody Conclusion.

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Joint Custody & Shared Physical Custody in Switzerland Martin Widrig

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  1. Joint Custody & Shared Physical Custody in Switzerland Martin Widrig

  2. Joint Custody & Shared Physical Custody in Switzerland Table of Contents Insight into Switzerland Divorce Behaviour Share of Parental Tasks Custody Shared Physical Custody Conclusion

  3. A. Insight into Switzerland (1) • Population: 8 Million (2013) • Federation: 26 Cantons • 4 Languages/Cultures: German (65.6%) French (22.8%) Italian (8.4%) Romanch (0.6%) • Aging population: < 20 : 20% (in 1900: 41%) 20 – 39 : 27% 40 – 64 : 36% > 65 : 17%

  4. A. Insight into Switzerland (2) Births

  5. A. Insight into Switzerland (3) Households

  6. A. Insight into Switzerland (4)Households with Children

  7. A. Insight into Switzerland (5) Public Spending Fig. 5

  8. A. Switzerland, an Overview (6) Poverty Risk Fig. 6 and 7

  9. B. Divorce Behavior (1)

  10. B. Divorce Behavior (2) • Increasing number of divorces: • Duration of marriage: 14.5 years • Requested by husband: in 37% • Divorces involving children:

  11. B. Divorce Behavior (3)Number of Children concerned

  12. B. Divorce Behavior (4)Age of Children concerned Ideal age for Shared Physical Custody

  13. C. Share of Parental Tasks (1)Overview • Dual-earnerfamilies (76%) • Most Motherswork • whenchild < 3 years (58%, OECD: 52%) • with> 2 children (58%, OECD: 44%) • Manywomenwork part-time (47%, OECD: 22%) • Most Fatherswork full time (90%) • Mothersdo most house and familywork Fig. 8 - 11

  14. C. Share of Parental Tasks (2) Fig. 12

  15. C. Share of Parental Tasks (3)Child Related Family Work Fathers are important AttachmentFigures

  16. D. Custody (1)Legal situation

  17. D. Custody (2) Attribution of Custody

  18. D. Custody (3) Regional Differences in attribution of Custody

  19. D. Custody (4) Attribution of Custody to Unmarried Parents (City of Zurich, 60% live together)

  20. D. Custody (5) Discussion • Joint Custody: • Increase since 2000 • Low attribution when unmarried parents did not live together • Regional differences • Big differences to neighbouring countries with same language

  21. D.Custody (6) Discussion • Problems with existing Custody Rules: • Consent“of both parents” • Too little contact rights + low protection  Loss of contact (50%) • Incompatibility with Human Rights (ECHR, 2009):

  22. D. Custody (7) Discussion • ECHR, judgement Zaunegger v. Germany (22028/04), 3.12.2009 • Discrimination of unmarried fathers (Art. 8 + 14 ECHR) •  Protection of custody by Art. 8 ECHR •  Custody includes decisions on: • Education, • Care & • where the Child lives •  Requirement of judicial review (is measure in in Child’s best interest?)

  23. D. Custody (8) Discussion • ECHR, judgement Zaunegger • ?? Right to Joint and Shared Physical Custody ?? • Art. 8 ECHR • Art. 16 UN-Convention of the Rights of the Child • If JC & SPC in child’s best Interest: • no reason for restriction • Right of the Child to have best possible care-solution •  Minimal consequences: • Regulation of SPC in legislation is required • Attribution of JC & SPC without consent must be possible

  24. D. Custody (9) Discussion • Lessons from Joint Custody Revision (2004-2014): • Heavy opposition • Scepticism by Practicians and authorities • But: Wide Acceptance and openness by the Population

  25. E. Shared Physical Custody (1)

  26. E. Shared Physical Custody (2)Attribution • No official data • Büchler/Simoni (NFP 52): 5.1% (28/567 divorces, Zurich & Basel) • Other results: • Mothers happier with JC • More contact between children and fathers with JC • Wealthy fathers had2x more JC • High education  more JC • Paid work with shared physical custody:

  27. E. Shared Physical Custody (3) • Shared physical Custody • very rare • Lack of interest by authorities (no data) • No changes in on-going Revision • Big differences to neighbouring countries with same language • But: Acceptance that SPC is best solution for child if parents live together (Bürgisser, NFP 52)

  28. E. Shared Physical Custody (4) • Possible Reasons for Low Rate of Shared Physical Custody • Lack of possibilities (official argument) • “Care-Taker-Rights” • Lack of Regulation, Recognition and Knowledge • Strong Opposition • Agreements in the Shadow of the law?

  29. E. Shared Physical Custody (5) Care-Takers-Right (Obhutsrechte; Droits de garde) • includes the right to decide: • who cares for child? • how is cared for the child? • where the child lives? • Is attributed to one parent only, unless consent of both parents • Share = Loss of privileges • ?Compatibility with Case Law of ECHR? • But: Possible problems if no regulation in maintenance Law

  30. F. Conclusion • Shared physical Custody… • …is in the best interest of the child • …is the ideal solution for most children concerned • …gives the care-taker more independence and makes him happy • …corresponds to the share of parental tasks before divorce • …is protected by human rights of the child and the parents • …is accepted by the population • There should be regulation and public information • For useful measures concerning other aspects of the child’s best interest check for “Die Cochemer Praxis”

  31. Questions?

  32. Thankyou!

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