How Courts Can Avoid Artificially Created Images of Conflict

How courts can avoid artificially generated portrayals of conflict

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

Among the recurring criteria in the Federal Court’s case law are the capacity of both parents to raise the child, their ability to communicate and cooperate in matters concerning the child, the geographical situation, the previous care, stability, the child’s age, sibling relationships and the social environment. Communication can also take place in writing; facilitation by third parties does not exclude alternating custody.

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

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

For a balanced decision, it is therefore necessary to compare which care each parent can actually provide, how handovers are organised, how school and medical matters are coordinated, and which solution will enable the child long-term stability and viable relationships with both parents.

Case law:BGE 142 III 612; BGE 142 III 617; Federal Supreme Court 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. Before publication, the legal and case-law situation and the sources must be checked again.