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Gatekeeping and Guardianship Decision: What Courts Should Examine

Gatekeeping and Custody Decisions: What Courts Should Examine: neutral expert analysis of Swiss family and procedural law with focus on criteria, evidence, the child’s best interests and fair proceedings.

Sun Sep 13
Source
01
BGE 142 III 612 ↗

09/13/2026, 07:58:31 PM · Europe/Zurich · indexed

02
5A_748/2022 ↗

09/13/2026, 07:58:31 PM · Europe/Zurich · indexed

03
5A_102/2025 ↗

09/13/2026, 07:58:31 PM · Europe/Zurich · indexed

Gatekeeping and the Guardianship Decision: What Courts Should Examine

Alternating custody is not automatic in Switzerland and is not a privilege of one parent. What matters is the best interests of the child. If a parent or the child requests shared care in cases of joint parental custody, the court must examine its feasibility based on the concrete circumstances.

Recurring criteria of the Federal Supreme Court's case law include the parental capacity of both parents to provide care, their ability to communicate and cooperate on child-related matters, the geographical situation, the previous care arrangements, 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 an alternating custody arrangement.

Particularly important: A parent's mere opposition to shared custody does not by itself prove a lack of ability to cooperate. What is decisive is whether a serious parental conflict also affects other matters concerning the child to such an extent that the custody arrangement clearly burdens the child. Therefore, a court should not only determine that a conflict exists, but should examine its concrete manifestations, causes and effects on the child.

That a parent obstructs communication, withholds information or blocks childcare arrangements must be assessed in a gender-neutral manner. Such behaviours can be relevant to the prognosis, but must not be attributed categorically to the mother or the father. Statements must be tied to concrete, verifiable events.

For a balanced decision it is therefore necessary to compare which care provision both parents can actually provide, how exchanges are organized, how school and medical matters are coordinated and which solution enables the child long-term stability and sustainable relationships with both parents.

Case law:BGE 142 III 612; BGE 142 III 617; Federal Supreme Court 5A_748/2022 of 9 February 2023; 5A_195/2024 of 9 October 2024; 5A_102/2025 of 20 March 2026.

Further articles

Editorial specialist article. Not individual legal advice. Before publication, the status of legislation and case law as well as the sources must be checked again.

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