Parental capacity as a fundamental prerequisite for shared custody
Alternating custody is not automatic in Switzerland and is not a privilege of one parent. The child’s best interests are decisive. If a parent or the child requests shared care in the case of joint parental authority, the court must examine its feasibility on the basis of the concrete circumstances.
Recurring criteria in the Federal Supreme Court’s case law include the parenting capacity of both parents, their ability to communicate and cooperate on child-related matters, the geographical situation, prior custody arrangements, stability, the child’s age, sibling relationships and the social environment. Communication may also take place in writing; mediation by third parties does not exclude shared custody.
Particularly important: A parent’s mere resistance to shared custody does not in itself prove a lack of ability to cooperate. What is decisive is whether a serious parental conflict also affects other matters concerning the child so that the custody arrangement obviously burdens the child. Therefore, a court should not only establish that a conflict exists, but examine its concrete manifestations, causes and effects on the child.
That a parent impedes communication, withholds information or blocks caregiving arrangements must be assessed in a gender-neutral manner. Such behaviors may be relevant to the prognosis, 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 the care each parent 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 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.
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Editorial specialist contribution. Not individual legal advice. Before publication, the status of legislation and case law as well as the sources must be checked again.