Previous care as an important criterion

Previous care as an important criterion

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 custody in cases of joint parental responsibility, the court must examine the possibility of such an arrangement on the basis of the specific circumstances.

Recurring criteria in the Federal Supreme Court’s case law include both parents’ capacity to parent, 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 occur in writing; third-party mediation likewise does not preclude alternating custody.

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

That a parent impedes communication, withholds information or blocks care arrangements must be assessed without regard to gender. Such behaviours may be relevant to the prognosis, but must not be attributed categorically to the mother or the father. Statements must refer to concrete, verifiable events.

For a balanced decision, it is therefore necessary to compare the care each parent can actually provide, how handovers are organized, how school and medical matters are coordinated, and which solution will provide the child with 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 of 9 February 2023; 5A_195/2024 of 9 October 2024; 5A_102/2025 of 20 March 2026.

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