Binational separation: Dad lives in America

One in three new marriages in Switzerland today is a binational marriage. Mixing cultures in a family and partners leaving their home country for their new family is therefore no longer a rarity. «I see this as a great enrichment, especially for the child, who can grow up with two cultures and two languages,» says Esther Hubacher from frabina, the counselling centre for women and men in binational relationships in Bern.

Hubacher cannot confirm the common prejudice that such constellations are fragile: «The divorce rate is no higher than for couples of the same origin.» However, when it comes to separation, binational couples face additional challenges. When it comes to who will take on how much time caring for the children in the future, the question also arises: will the partner with a different passport stay in Switzerland?

Families do not always have a free choice. For example, if the father or mother comes from a third country (non-EU/EFTA country) and the marriage has lasted less than three years, it is possible that the father or mother will lose their right of residence - even if the child has a Swiss passport.

«Migration law is being interpreted more and more strictly. The Federal Supreme Court has already ruled in several cases that contact with the child via Skype is sufficient and that residence in Switzerland is not necessary to fulfil the right of contact,» explains Hubacher. The child's attachment to the foreign parent plays a role in the decision, as does the question of whether the partner in Switzerland can support themselves alone or is dependent on support.

The choice is not an easy one: do I plague myself with an unhappy partnership, or do I lose my right of residence and with it my child?

As a result, many couples are tormented by unhappy partnerships in order to prevent one parent from being deported and having to live separately from the child. «Depending on how intense the conflicts are, this is not necessarily the best solution for the child,» Hubacher points out. «The legal conditions make it difficult to find a solution that feels good for everyone.» The head of frabina, who also conducts counselling sessions with binational couples, therefore understands the motive. «It is particularly important for children with binational parents to have contact with both parents so that they can integrate both roots into their own personality,» she says.

Why cases of child abduction have increased

Sandra Hotz, a lawyer at the University of Fribourg, also points out that with the revision of parental custody law (ZGB), which came into force in 2014, it is no longer so easy to take the child to another country if the former partner does not agree. This is because joint parental custody for both parents is the legal rule.

Part of joint parental custody is the right to determine the child's place of residence. «Anyone who takes the child to their home country against the will of their partner is committing child abduction, a breach of custody or a breach of visiting rights. The number of these cases has risen sharply in recent years,» she reports. Ifthe child is in a contracting state, an international Hague Convention and the Federal Child Abduction Act regulate how the child can then be returned to Switzerland, even with the help of the police if necessary.

If the parents are not happy in Switzerland, it is also more difficult for the child to feel at home.

Esther Hubacher

If there is no threat of deportation, the foreign partner has the choice of staying close to the child, but far away from their home country. «We see cases like this very often,» reports Hubacher. «Parents who emphasise that they are only staying in the country because of the child.»

Depending on how well the person is integrated and how much of a burden the fact that they cannot return to their home country without losing their child is, this parental sacrifice is not easy for the child either. «If the parents are not happy in Switzerland, it is also more difficult for the child to feel at home,» says Hubacher.

Childcare relationship is maintained after separation

However, the fact that joint parental custody is the rule does not automatically mean that alternating de facto custody must come into force, in which both partners also take on childcare responsibilities. In particular, if one person has already borne the main responsibility for care during the marriage, while the partner has supported the family financially, it is often assumed that it is in the best interests of the child for this care relationship to be maintained.

This also means that the foreign mother, who has never worked in Switzerland because she was busy looking after the child, is not simply deprived of the child or sent out of the country without the child.

However, if the child or one of the partners wishes to have alternating custody, it is up to the Kesb or the courts to decide whether this wish can be honoured. «The best interests of the child are the most important decision-making principle here,» says Sandra Hotz.

Is it fundamentally important for the child's welfare that both parents live nearby so that the child can see them at all times? «There's no simple, generalised answer to this question,» says Sandra Hotz. «It also depends on the quality of the time spent together, not just how often it can take place.»

After all, even in functioning marriages today, one partner is often separated from the family, for example if they have to commute or travel for work. And there is the possibility of bridging the time apart with video calls, for example. «The law should also move with the times here,» says the lawyer.