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Family law – Answers regarding custody, child support and co.

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Disputes after a separation regarding child support or custody, problems with authorities, or paternity cases: It’s not always love, peace and harmony in the home – and sometimes only seeing an attorney can help. Family law deals with personal and property relationships between parents and children as well as spouses and life partners – and thus focuses on what is usually a very personal part of life. 

Attorney Isabelle Naef and legal expert Cyrill Senn from AXA-ARAG are very familiar with the complex legal situation in the various areas of family law and answer the most important questions about custody, the child and adult protection authority (KESB), child support, family allowances, paternity, and juvenile criminality in our blog.

What is the difference between sole and joint custody?

Parents sharing joint parental care must make important decisions in the life of the child together. This includes, among other things, issues regarding place of residence, style of upbringing, education, or medical interventions. For example, the mother or father cannot decide alone that he or she will move with the children to another municipality and thus away from the other parent.

If the parents have joint custody, then both are legal representatives of the child and administer the child’s assets. In the case of sole custody, the right of one parent to make parental decisions is revoked. 

Who has custody when the parents are married?

Married parents both share joint custody. 

What can a parent decide by themselves – in the case of joint custody?

The parent who cares for the child can make unilateral decisions regarding day-to-day affairs, such as eating habits, activities, bedtime, or the child’s media consumption. Likewise, in urgent cases, a parent can make decisions by themselves if, for example, the child is in a life-threatening situation.

A decision is not deemed to be an everyday decision if it entails consequences for the child’s life that are difficult to change. For example, a change of school or a medical intervention.

The freedom to make decisions also ends if the child's welfare is at risk.

My partner and I live together – without a contract. Who receives custody?

By law, this is initially granted solely to the mother – if she is over the age of 18 and not under the appointment of a comprehensive guardianship. If the parents are in agreement, they can submit a document declaring their willingness to share responsibility for the child.

Under the law, joint parental care enters into force through the submission of this declaration. If one parent refuses to submit the declaration regarding joint custody, the other parent can involve KESB. This authority decides on joint parental care if, to ensure the welfare of the child, parental care by the mother cannot be maintained or sole parental care cannot be appointed to the father.

Can I, as the father, be granted sole custody?

Yes, if there are significant grounds for doing so, either parent can apply for sole sole custody. Significant grounds for applying for sole custody include neglect of the child, violence, and generally a threat to the child’s welfare.

What is the difference between “parental custody” and “parental care”?

As a rule, even if one parent has sole custody, both parents together exercise parental care. Parental custody is the right to live together with the child in a residential community, and to take care of the child's daily needs. 

If the child primarily lives with one parent, this is called sole custody. If the child lives with both parents, this is called shared or alternating custody.

With the exception of the place of residence, “parental custody” is in fact thus nothing other than responsibility for caring for the child. Even the parent who does not have the child with them very often after a separation or divorce still exercises responsibility of care as soon as the child is with them. 

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My husband and I wish to separate. Will joint custody remain in force?

For three years now, estranged and divorced couples have generally been allowed to share custody. If there are significant reasons, either parent can apply for sole custody, or the court can appoint one parent as sole custodian.

What rights do I have as the parent who does not have custody?

The two most important rights of a parent who does not have parental custody is the right to personal contact (right to contact and visitation) and the right to information.

The right to personal contact is a  mutual claim. In other words, both the parent without custody and the child have the right to see each other regularly and spend time with one another.

The right to information is the right for parents without custody to be informed about special events in the the life of the child – for example, if the child is to take an important exam at school. Such information should be provided before decisions are made that are important for the development of the child. It is the right of the parent without custody to have a say. However, unlike joint parental custody, it is ultimately the parent with sole custody who makes the decision. The parent who has sole custody must inform and listen to the other parent and take them seriously.

Parents without custody are also entitled to obtain information from third parties who care for the child – primarily teachers and doctors – regarding the condition and development of the child.

When does KESB intervene in a custody dispute – and when does the court intervene?

If new arrangements for parental care have to be made as a result of a divorce or settlement proceedings, the family court concerned has jurisdiction. In cases where “only” custody has to be adjusted, KESB is generally responsible.

I have visitation rights to see my children every two weekends. Do I have to make the trip from Romanshorn to Basel every time – or can I require my ex-wife to make the trip?

According to established practice, the costs incurred for exercising visitation rights must be borne by the parent exercising said rights. However, if the mother or father do not have the financial means to do so – or, for example, do not have enough money for a car or public transportation – the costs can be transferred wholly or in part to the custodian parent.

Family law: What is KESB?

The child and adult protection authority (Kindes- und Erwachsenenschutzbehörde (KESB)) is a specialist authority that is mandated by law. It is appointed by the cantons and makes ts decisions independently. KESB functions similarly to a court.

The authority clarifies reports it receives, determines on account of its office whether a person is in need of protection or assistance and whether the welfare of a child is at risk, and decides whether these cases require legally ordered measures.

KESB only intervenes if voluntary support does not suffice or would not lead to the desired outcome. The decisions it makes are reached by at least three members. Experts from the fields of law and social work must be represented.

Does KESB automatically intervene in the event of a custody dispute?

No, KESB does not automatically get involved in custody disputes. If, however, the welfare of the child is possibly at risk, then the authority may intervene ex officio.

KESB has classified me as “dangerous” to my children and has denied me visitation rights. How can I raise an objection to this decision?

You can apply for the decision regarding visitation rights to be repealed by submitting proof that the argumentation of the child and adult protection authority is incorrect – and, if necessary, appeal to a court of law.

My son and his wife have separated. Do we as grandparents still have the right to see our two grandchildren?

Not necessarily.  But if there are extraordinary circumstances, the entitlement to personal contact can also be granted to other persons – especially relatives such as grandparents – provided this serves the wellbeing of the child.

I fear that my ex-husband hits our children when they are with him on the weekends. Should I involve KESB?

If the welfare of the children is at risk, then the child and adult protection authority should definitely be notified if it is not possible to clarify the situation within the family.

In which cases does KESB appoint a guardianship?

If clarifications show that the parents are struggling with the task of raising and caring for their child, then KESB appoints a guardian to protect the child and support the parents.

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The father of my daughter does not want to acknowledge paternity. What can I do?

If the father of the child does not want to acknowledge paternity, both the mother as well as the child can take action regarding the assessment of the affiliation between the child and supposed father.

My ex-partner says she is pregnant with my baby – I don't believe her. Can she force me to acknowledge paternity of the child?

No, no one can be forced into a paternity acknowledgment. But both the mother and the child may sue for assessment of the affiliation between the child and the supposed father. 

Can I acknowledge paternity of my child against the will of the mother?

Yes, that is possible. However, acknowledgment is not possible if another man has already acknowledged paternity of the child. In such a case, the paternity acknowledgment would first have to be appealed in court.

Do I have to notify the authorities of the name of my child’s father?

A child has the right to know the name of their father. If the mother keeps the name of the father secret, KESB can review whether a guardian should be appointed to ensure paternity can be legally determined. If paternity is proven, the father of the child can acknowledge this status, even against the will of the mother.

How and where can I acknowledge paternity of my child?

If you are a Swiss citizen and are resident in Switzerland, you can declare your acknowledgment at your local civil registry.

If you are not a Swiss citizen or you reside abroad, then it is possible to acknowledge paternity at the civil registry of the place of birth or usual place of residence of the child, at the place or residence or origin of the mother, or – provided you are a Swiss citizen – at your own place of origin.

Usually, you only have to show an ID and residence certificate to do so. The civil registry will tell you which additional documents have to be submitted.

I suspect that my wife has passed off another man’s child as my own. She won’t agree to a DNA test. Can I secretly have a DNA test done?

In Switzerland, genetic analysis to establish relations can only be conducted if it is in the interest of the child concerned. The test therefore requires the consent of the child, provided they are able to exercise sound judgment.

If the child is a minor, the consent of their parents is compulsory. If the child cannot exercise sound judgment, the consent of the person who is entitled to representation of the child is required.

Secret tests are punishable by law and cannot be used in court.

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I have a temp job at a bakery for several hours a week. Am I entitled to family allowances?

Even if you work part-time, you are entitled to full family allowances, provided your salary is at least 597 francs a month or 7,170 francs per year. If your salary is lower, you are entitled to family allowances for the unemployed, provided you meet the requirements.

To receive family allowances for the unemployed, the applicant must be deemed unemployed within the meaning of the AHV and reside in Switzerland. Your taxable income may not exceed 43,020 francs per year.

Until what age is a child entitled to family allowances?

Entitlement to the training allowance continues until the child finishes school or training, but not past their 25th birthday.

Our daughter is studying in Germany. Can we still receive child allowances?

Yes. An entitlement to family allowances for children who reside abroad applies if this is stipulated in an intergovernmental agreement. Switzerland has such agreements EU and EFTA states as well as with Bosnia and Herzegovina.

My husband was declared unfit to work for several months because of illness. Will he still receive child allowances or do I need to apply for these now?

The entitlement to family allowances arises and expires with the salary entitlement. In the event of incapacity to work – for example, as the result of illness or an accident – family allowances will be paid for the month in which the incapacity began, and for the three subsequent months – regardless of whether a salary or insurance benefit was paid.

Which parent can claim family allowances after a divorce or separation?

Provided this is not otherwise regulated by law, the parent who has custody or with whom the child primarily lives receives the family allowances.

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Who decides the amount of child support?

The amount of child support is set either by joint agreement – and approval of KESB or the court – or by the court or KESB.

What costs does child support cover?

Child support includes the care and upbringing of a child and cash payments to cover the costs of care, upbringing, and education, as well as for required protective measures.

Who has to pay child support?

Both parents are obligated to jointly pay for the support of their child – until the child has completed an adequate level of education. How the amount of support is divided and the time of care depends on the agreed or court ordered model. The more equitable the parents arrange the custody and care, the lower the cash amount for support will be.

Our son is 23 and has already quit his training four times. How long do we have to pay child support?

The parents’ obligation to pay child support lasts until the completion of a suitable level of education of the child. The law does not stipulate any strict age limits. However, the obligation to pay support for the child after the age of majority depends on whether it is reasonable for the parents to continue to do so.

Unfinished training is in itself not a reason to discontinue support payments. Every child in professional training – whether it be an apprenticeship or university studies – is entitled to have an orientation phase that corresponds to their situation in life, age, and stage of development. No across-the-board answers can be given. It always depends on the circumstances of the individual case as to whether or not an entitlement to support expires.

I will be taken off of unemployment insurance by the regional employment office in two months. Will I then be exempt from paying child support for my children?

The obligation to pay child support does not just simply lapse. Due to your changed financial possibilities, it may be possible to request an adjustment in the amount of support or to have this option reviewed by the court.

The limit for the support obligation is the subsistence minimum of the parent who owes support payments. The entitlement to support for minor children lapses completely if the parent who owes support is no longer able to make support payments because they do not have the financial means to cover their own cost of living.

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My daughter has been summoned by the juvenile district attorney. What should I do?

Summons must be complied with. Otherwise, the criminal authorities can impose compulsory attendance – in other words, the police will come and pick up the accused person. As legal representative, you can serve as a party to the juvenile proceedings: You can communicate directly with the criminal authorities. And, of course, you can accompany your child to the interrogation.

When does my child need a juvenile attorney?

The protection and upbringing of a minor is the main focus of juvenile criminal proceedings. The Swiss Code of Juvenile Criminal Procedure prescribes from when a juvenile must be represented by an attorney. This is the case if the accused faces imprisonment of more than one month, for example. In severe cases, qualified legal representation will be organized automatically. However, you always have the option of including legal representation of your choosing.

My 12-year-old son graffitied the wall of the school gym. What legal ramifications does this offense entail?

Graffiti is property damage. That means that the school can claim compensation for having the wall cleaned. This can quickly add up to several thousand francs. The sentences in juvenile criminal code are less stringent than for adults. If the juvenile strives to make reparations, it may even be possible for the sentence to be waived. Otherwise, an entry in the criminal record or community service for the benefit of a social institution may be possible.

From the age of 15, fines of up to 2,000 francs or, in severe cases, even imprisonment are also possible. But if you are only dealing with one “day” and your child strives to make amends, it is certainly possible that the sentence will be waived.

I’m worried that my 16-year-old daughter smokes weed. What happens if she is caught?

Cannabis is increasingly becoming decriminalized in Switzerland. Possession of up to 10 grams of cannabis goes unpunished. Consumption is punished with a fine. In mild cases, a warning can be issued or the sanction can be waived.

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