Access rights have played an important role in the Swiss legal system for many years. In historical and social terms, it developed in response to changes in family structure and societal attitudes regarding the role of parents and children. Historically, separation or divorce could lead to a breakdown in the relationship between a non-custodial parent and their child. With the evolution of social norms and the recognition of the importance of maintaining a relationship with both parents, Swiss legislation gradually incorporated provisions to ensure the continuity of these relationships.
In the context of divorce or separation, visitation rights take on particular importance, as they enable the child to maintain a meaningful relationship with the non-custodial parent. Studies show that maintaining these relationships can have positive effects on the child’s well-being and contribute to his or her balanced development. Consequently, Swiss courts, as well as the parents themselves, pay particular attention to establishing an access regime that best serves the child’s interests.
Access is a key concept in Swiss family law, and its definition and scope need to be clarified. It is distinct from custody rights, although the two are often mentioned together. Whereas custody rights concern the primary responsibility for the child, including decisions about upbringing and welfare, access rights deal specifically with the non-custodial parent’s ability to spend time with the child.
This distinction is essential because it recognizes that, even if a parent does not have primary custody, he or she nevertheless has a role to play in the child’s life. Visitation rights are therefore a legal mechanism for maintaining and nurturing the parent-child relationship after separation or divorce.
The main players involved in access rights are the parents, the children and the competent authorities, including the courts. The legal framework is provided mainly by art. 273 of the Swiss Civil Code (CC), which lays down the guiding principles for the exercise of this right. It stipulates that the non-custodial parent has the right to visit the child, unless this is contrary to the child’s best interests.
The definition and application of access rights in Switzerland are thus guided by a desire to preserve the relationship between the child and the non-custodial parent, while ensuring that the child’s interests remain paramount.
The allocation of access rights in Switzerland is a complex issue, requiring a delicate, individualized analysis of each family situation. Unlike a rigid, uniform law, the allocation of access rights is often adapted to the specific circumstances of each family. Criteria for determining access rights may include considerations such as the child’s age, the geographical distance between the parents’ residences, the non-custodial parent’s ability to care for the child, and the child’s wishes, if he or she is old enough to express them.
In Switzerland, the division of visiting rights can be determined either by private agreement between the parents, or by judicial intervention. Parents are encouraged to find a mutual solution that takes account of the child’s needs and interests. However, if an amicable agreement is not possible, the courts may intervene to establish a visitation regime. In such cases, the decision is based on the best interests of the child, which is a guiding principle in Swiss family law.
Allocation can be classified as either ordinary or extraordinary. Ordinary division generally refers to regular, structured access rights, often set up at the time of separation or divorce. Extraordinary division may arise in more complex situations, where exceptional circumstances require adaptation or modification of the standard access regime.
The child’s opinion plays an important role in determining access rights in Switzerland. This approach is in line with the United Nations Convention on the Rights of the Child, which states that children who are capable of forming their own views have the right to express those views in all matters affecting them.
In Switzerland, the age at which a child is considered to have the necessary discernment to express a valid opinion is not legally fixed. Instead, the child’s capacity to express an informed opinion is assessed on a case-by-case basis. The judge, often assisted by an expert, assesses whether the child is of discerning age and whether his or her opinion can be taken into account in the decision on visitation rights.
Methods for gathering the child’s opinion can vary. They may include interviews with a judge, psychologist or family mediator. The aim is to create an environment where the child can express himself freely, without pressure or undue influence from parents or other adults.
Although the child’s opinion is taken into consideration, it is not necessarily decisive. The judge must weigh the child’s opinion against other factors such as the child’s general well-being, the parent’s ability to provide for the child, and the continuity and stability of the relationship. The child’s opinion is integrated into a broader assessment of the child’s best interests.
However, this approach is not without its critics. Some may question a child’s ability to express an unbiased opinion, especially in a context where parents may have conflicting interests. Others stress the importance of protecting the child from potential pressure to choose between parents.
Art. 273 of the Swiss Civil Code establishes the concept of personal closeness as a fundamental principle in the regulation of visitation rights. This concept recognizes that maintaining a close and continuous relationship between the child and the non-custodial parent is essential for the child’s emotional well-being and development.
Personal closeness is more than just physical interaction or presence in a child’s life. It encompasses a deeper relationship, characterized by affection, understanding, communication and support. This can include taking part in shared activities, creating shared memories, and building a relationship of trust and mutual respect.
The principle of personal proximity guides the way visitation rights are organized and implemented. It encourages an allocation that enables the non-custodial parent to play an active and meaningful role in the child’s life, even if he or she does not reside with the child. The frequency and duration of visits, arrangements for vacations and special occasions, and other aspects of access are designed to foster and maintain this closeness.
At the same time, the notion of personal proximity must be balanced with other important considerations, such as the stability of the child’s life and the ability of the non-custodial parent to exercise access in a way that supports the child’s best interests. If the non-custodial parent is unable to maintain a healthy, positive relationship with the child, or if personal closeness is compromised by other factors, visitation arrangements may be modified.
Restricting or withdrawing access rights is a serious measure that should only be taken in exceptional circumstances. These measures are guided by the principle of the best interests of the child, which lies at the heart of Swiss family law.
Restriction of access can occur when unrestricted access would be detrimental to the child. This restriction can be temporary or permanent, and can take various forms, such as reducing the frequency of visits, requiring supervised visits, or imposing certain conditions to be respected during visits. It is often used in response to problems such as neglect or non-compliance with visitation rules.
Termination, an even more extreme measure, occurs when the continuation of any form of access presents a serious danger to the child, as in cases of violence or abuse. Withdrawal of visitation rights means that the non-custodial parent completely loses the legal right to see the child. As with restriction, termination is not a measure to be taken lightly, and requires thorough evaluation and sound justification.
In conclusion, although visitation rights are a fundamental principle of Swiss family law, they can be restricted or even abolished in certain circumstances. Such measures are taken with the utmost caution, and are always guided by the principle of the child’s best interests. They reflect a nuanced understanding of the need to balance the non-custodial parent’s right to maintain a relationship with the child with the overriding responsibility to protect the child’s health, safety and well-being.