Parental custody - moving in with mum or dad?

It was always clear to Jacqueline and Matthias that they wanted to look after their children equally . They both worked part-time: Jacqueline in an event agency in Bern and Matthias as a computer scientist with the Swiss government. Their children Jonas and Tim are now five and eight years old.

Jacqueline and Matthias are now going their separate ways, but continue to look after their sons together. As part of a separation agreement, they have agreed the following in court: Jacqueline will look after the children from Sunday evening to Wednesday evening, Matthias from Wednesday evening to Friday evening, and they will alternate at the weekends.

If one parent wants to move

While the divorce is still pending, Jacqueline is unexpectedly offered a new job in Lausanne. This is not only an interesting offer from a professional point of view; Jacqueline has been thinking about returning to French-speaking Switzerland for some time. She grew up in Lausanne and still has close ties to the city, as her family and her new partner live there.

However, moving without her children is out of the question for Jacqueline. Especially as her children, with whom she has only spoken French from an early age, love spending time with their grandparents and cousins in Lausanne.

Given the distance between their home in Bern and their future home in Lausanne, it would not be possible for Jacqueline and Matthias to maintain the current division of childcare, particularly because Tim is now at school and Jonas is in kindergarten. Can Jacqueline still move with the children without further ado?

Who decides where the child lives?

The right to determine a child's place of residence is part of parental custody. If one parent exercises parental custody alone, they only need to inform the other parent of their relocation plans in good time. If the parents exercise parental custody jointly and one parent wishes to relocate with the child within Switzerland, the consent of the other parent is required if the relocation of the children will have a significant impact on contact between the child and the other parent.

It is decided individually whether a move requires approval.

If one parent wishes to move abroad with the child, the consent of the other parent is required in the case of joint parental custody. If the other parent does not agree to the child moving, the parent wishing to move can contact a court or a child protection authority (KESB) so that they can find a new arrangement for the child's care.

Jacqueline and Matthias have joint parental responsibility. The distance between Lausanne and Bern is more than 100 kilometres. Regardless of which household Jonas and Tim will live in in future, the current care model can no longer be maintained, meaning that the children's move is dependent on the consent of Matthias or the court.

A case for the court

Whether a move requires authorisation must be decided on a case-by-case basis. The situation would be different, for example, if Jacqueline were to move from Ostermundigen to Zollikofen, around 15 minutes away by car.

Matthias does not agree to the children moving. He vehemently opposes it and threatens Jacqueline with legal action, as he has no sympathy for Jacqueline's sudden wish to move to Lausanne. Jacqueline cannot take the children to Lausanne without Matthias' consent. However, she can apply to the court, which is also responsible for the divorce, to for authorisation to change the children's place of residence.

While the court proceedings are still ongoing, Jacqueline is not (yet) allowed to move with the children. The children should remain in their familiar surroundings until the court has made its decision. This applies in particular in the event that both parents are able and willing to look after the children, as the continuity of the care situation has a major influence on the court's subsequent decision.

The law is designed to ensure that the parent wishing to relocate approaches the other parent, or the court or the KESB, in advance in order to find a joint solution.

The law does not actually penalise relocation without consent. In this case, however, the court may examine whether it makes sense to assign the children to the other parent.

No ban on relocation for caring parents

The court or the KESB will always authorise a move if it is in the child's best interests to move away with the parent instead of staying with the other parent in the previous environment. The starting point is always the previous care model.

If a child is mainly cared for by one parent on a day-to-day basis, which is still the standard today, the Federal Supreme Court usually assumes that it is in the child's best interests to continue living with their main carer. This applies in particular to younger children, as their care and upbringing should be as constant as possible.

Only the relocation of the child can be prevented.

The older the children are, the more likely it is that it is in the child's best interests to remain in their current place of residence, because school and friends become more important as they get older.

However, even with older children, the prerequisite is that this choice exists at all. This means that the other parent must be able and willing to provide appropriate care for the child. This is often not the case if one parent has previously looked after the child on their own, while the other parent has only looked after the child every other weekend.

Refusing consent is pointless if you are not prepared to look after the child yourself - only the child's move can be prevented, not that of the other parent. The need for consent to the move relates solely to the move of the children; there is no «ban on moving» for caring parents.

Jacqueline and Matthias' starting position is neutral, so to speak. They have shared half of the childcare up to now and are both prepared to take over the care of the children in the future.

Where is the child better off?

The court is now faced with the difficult question of whether it is better for a child to move away with one parent or stay with the other parent at their current place of residence. In such cases, a court uses various criteria to determine which parent is in the best interests of the child.

It looks at all facets of a specific case, as it makes a difference to children whether, for example, they already speak the language in their new place of residence and can therefore attend school without any problems or not, whether they already know part of their environment in their new place of residence or whether everything will be completely foreign to them. Or whether the children are moving to an economically secure environment or whether their circumstances will be less stable in the future.

It is also relevant which parent has the opportunity to look after the children personally and how strong a parent's ability is to promote the child's personal contact with the other parent. The motives of the parent who wishes to relocate do not play a major role in court. However, if there are no plausible reasons for a move and it appears that the parent only wants to move in order to alienate the children from the other parent, this tends to speak in favour of the child remaining at the previous place of residence.

In the case of Jacqueline and Matthias , the court has ruled that the children should stay with their father in Bern if Jacqueline moves to Lausanne. On the one hand, this was in line with the clear wishes of Tim and Jonas. On the other hand, because the children would have been looked after by the grandparents in Lausanne in particular, as Jacqueline's new job involves a lot of travelling, while Matthias can look after the children himself in Bern thanks to flexible working hours.