What BGE 142 III 612 Means for Parents
Alternating custody is not automatic in Switzerland and is not a privilege of one parent. The child's welfare is decisive. If a parent or the child requests shared custody in the case of joint parental responsibility, the court must examine its feasibility on the basis of the concrete circumstances.
Recurring criteria in the Federal Court’s case law include the parenting capacity of both parents, their ability to communicate and cooperate on child-related matters, the geographic situation, prior caregiving, stability, the child’s age, sibling relationships and the social environment. Communication may also take place in writing; third-party mediation 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 is decisive is whether a serious parental conflict also affects other child-related matters to such an extent that the custody arrangement clearly burdens the child. Therefore, a court should not merely establish that a conflict exists, but examine its concrete manifestations, causes and effects on the child.
That a parent impedes communication, withholds information or obstructs 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 the father. Statements must refer to specific, verifiable incidents.
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, in the long term, to have 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 article. Not individual legal advice. Before publication, the status of legislation and case law and the sources must be checked again.