Federal Court 5A_195/2024 on capacity to cooperate
Alternating custody is not automatic in Switzerland and is not a privilege of one parent. The child’s welfare is decisive. If a parent or the child requests shared care in the case of joint parental custody, the court must examine its feasibility based on the specific circumstances.
Recurring criteria in the Federal Court’s case law include the parenting capacity of both parents, their ability to communicate and cooperate on matters concerning the child, the geographical situation, the previous care arrangement, stability, the child’s age, sibling relationships and the social environment. Communication may also take place in writing; mediation by third parties likewise does not preclude alternating custody.
Especially important: The mere opposition of one parent to shared custody does not by itself prove a lack of ability to cooperate. What is decisive is whether a serious parental conflict also encompasses other child-related matters to such an extent that the custody arrangement obviously burdens the child. Therefore a court should not merely determine that a conflict exists, but should examine its concrete manifestation, causes and effects on the child.
That a parent impedes communication, withholds information or blocks care arrangements must be assessed in a gender-neutral manner. Such behaviours may be relevant to the assessment, but must not be attributed categorically to the mother or the father. Statements must be linked to concrete, verifiable events.
For a balanced decision, it is therefore necessary to compare which caregiving capacities both parents can actually provide, how handovers are organised, how school and medical matters are coordinated, and which solution will enable the child to have long-term stability and viable relationships with both parents.
Case law: BGE 142 III 612; BGE 142 III 617; Bundesgericht 5A_748/2022 vom 9. Februar 2023; 5A_195/2024 vom 9. Oktober 2024; 5A_102/2025 vom 20. März 2026.
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Editorial specialist article. Not individual legal advice. Prior to publication, the statutory and case-law status and the sources must be checked again.