Third-party mediation as practical assistance in high-conflict cases

Third-party mediation as practical assistance in high-conflict cases

Shared custody is not automatic in Switzerland and is not a privilege of one parent. The decisive factor is the child’s welfare. If a parent or the child requests shared custody in cases of joint parental authority, the court must examine its feasibility on the basis of the specific circumstances.

Recurring criteria in the Federal Court’s case law include the parenting ability of both parents, their ability to communicate and cooperate in matters concerning the child, the geographic 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 likewise does not preclude alternating custody.

Particularly important: The mere opposition of one parent to shared custody does not by itself prove a lack of ability to cooperate. What matters is whether a serious parental conflict also affects 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 examine its concrete manifestations, causes and effects on the child.

That a parent hinders communication, withholds information or obstructs care arrangements must be assessed without gender bias. Such behaviours may be relevant for the prognosis, but must not be attributed categorically to the mother or to the father. Statements must be linked to concrete, verifiable events.

For a balanced decision, it is therefore necessary to compare which caregiving services both parents can actually provide, how handovers are organised, how schooling and medical issues are coordinated, and which solution will provide the child with 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 vom 9. Februar 2023; 5A_195/2024 vom 9. Oktober 2024; 5A_102/2025 vom 20. März 2026.

Further contributions

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