It is important to a child’s harmonious development that he or she be able, as far as possible, to maintain a close relationship with both parents. As of July 1, 2014, separated or divorced parents as a rule will share (in the case of separated parents, continue to share) custody for children they have together. There are exceptions in cases where joint care would conflict with the child’s welfare. Priority is given to children’s welfare. And a child has the right to an independent relationship to each parent, but that is not all. A child also has the right to stable and dependable conditions of care and the right to financial security.

Joint custody also applies for unmarried couples. For this, a joint statement is required; this is most easily provided at the same time as acknowledgment of paternity at the civil registry office. The joint statement can also be provided at a later time at the Child and Adult Protection Authority (KESB, Kindes- und Erwachsenenschutzbehörde, formerly Vormundschaftsbehörde, Guardianship Authority). Without a joint statement, the mother continues to have sole parental custody. If the mother refuses to provide a joint care statement, the affected father may call the KESB in the child’s place of residence. If there is no rationale against joint care, the KESB will issue an order in that regard. The application must be done latest one year after the new law enters into force (application before July 1, 2015).

As of July 1, 2014, divorced parents who do not have joint care pursuant to the new law may contact the KESB in the child’s place of residence and apply for joint care. If only one divorced parent submits the application, there is a deadline of one year after the new law enters into force (application before July 1, 2015) and the divorce ruling may not have been more than five years before the law enters into force (divorces after July 1, 2009).

Joint parental care means:

• The parents decide together (as previously in a marital relationship), e.g. about names, general childrearing, education, medical matters, religion, other matters that set the course for or significantly influence the child’s life, the child’s income and property, etc.
• New: The parent who is caring for the child may make decisions alone if:  1. the matter is a routine or urgent one, e.g..: food, clothing, recreational activities, contact with friends, etc or 2. the other parent cannot be reached with a reasonable amount of effort.

• New: The concepts of caregiving and custodial care are not spelled out in the law. The concept of actual custodial care: The parent with whom the child lives most of the time. The concept of caregiving goes further: A parent who does not provide official custodial care is giving care when the child is with him or her within the scope of the law governing visits.

• New: Parental care includes the right to determine the child’s domicile. In the case of joint parental care, either the other parent’s approval or a decision by the court or the KESB is necessary in order to change the child’s domicile if: 1. the new domicile is in another country or 2. the change of domicile has significant effects on the other parent’s ability to provide parental care and maintain personal contact. Requirement for consent only in the case of significant effects, i.e., if the move results in significant restriction of visiting rights. Legal consequences in the case of violation and of a move to another country: Repatriation proceedings due to international child abduction.

Responsibilities in the case of disputes:

For divorced parents, the KESB in the child’s place of residence is responsible. If a divorce judgment must be changed (custodial care, custody, child support), the court is responsible.

For unmarried parents, the KESB in the child’s place of residence is responsible. The court is responsible for new regulations concerning child support.

If the parents repeatedly cannot agree about important questions in the child’s life, such that the child’s welfare is seriously jeopardized, the question arises of whether parental care should be taken away from (both or just one of) them. Legal questions related to child support and caregiving are not addressed by the new law. Legal questions related to child support and caregiving should, like parental care, be arranged in such a way that no disadvantages to the child arise from the parents’ marital status.

Recognition of paternity

In the case of married couples, the mother’s husband is considered to be the child’s father. Paternity needs to be regulated for children of unmarried parents (ZGB art. 260). In addition, a maintenance contract (ZGB art. 279 ff) needs to be concluded and – if the parents do not live together – visiting rights need to be regulated. Parents can do this of their own accord, i.e. they inform the responsible registry office of the paternity. Otherwise, the guardianship authority will establish a declaration of legal support in the interest of the child with the aim of regulating paternity and maintenance (ZGB art. 309). The interests and rights of the child are the main objective here. If a mother keeps the paternity a secret and/or forgoes maintenance, this damages the interests of the child. Keeping paternity secret and/or renouncing maintenance by a mother may be detrimental to the child’s interests.