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Law Blog

Why Parental Wishes Yield to the Child's Best Interests

Why parental wishes yield to the child's best interests: neutral expert analysis of Swiss family and procedural law with focus on criteria, evidence, the child's best interests and fair procedures.

Sun Sep 13
Source
01
BGE 142 III 612 ↗

09/13/2026, 07:46:33 PM · Europe/Zurich · indexed

02
5A_748/2022 ↗

09/13/2026, 07:46:33 PM · Europe/Zurich · indexed

03
5A_102/2025 ↗

09/13/2026, 07:46:33 PM · Europe/Zurich · indexed

Why parents' wishes must give way to the child's best interests

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 under 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 capacity of both parents, their ability to communicate and cooperate on matters concerning the child, the geographical situation, the previous care arrangements, stability, the child's age, sibling relationships and the social environment. Communication can also take place in writing; mediation through third parties does not preclude alternating custody.

Particularly important: The mere resistance 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 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 should examine its concrete manifestations, causes and effects on the child.

That a parent hinders communication, withholds information or obstructs childcare/care arrangements must be assessed without regard to gender. Such behaviours may be relevant for 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 what care each parent can actually provide, how handovers are organized, how school and medical matters are coordinated, and which solution will offer 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 of 9 February 2023; 5A_195/2024 of 9 October 2024; 5A_102/2025 of 20 March 2026.

Further posts

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

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