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The right of visitation
The right of visitation holds a significant place in the Swiss legal system and has done so for many years. In a historical and social context, it has developed in response to changes in family structure and societal attitudes regarding the roles 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 evolving social norms and the recognition of the importance of maintaining a relationship with both parents, Swiss legislation has progressively incorporated provisions to ensure the continuity of these relationships.
In the context of divorce or separation, the right of visitation takes on particular importance, as it allows 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 their balanced development. Consequently, Swiss courts, as well as the parents themselves, pay special attention to establishing a visitation regime that best serves the child’s interests.
Definition of the right of visitation
The right of visitation is a key concept in Swiss family law, whose understanding requires a clarification of its definition and scope. It is distinct from custody rights, though the two are often mentioned together. While custody rights concern the primary responsibility for the child, including decisions about education and well-being, the right of visitation specifically addresses the non-custodial parent’s opportunity to spend time with the child.
This distinction is crucial as it acknowledges that, even if a parent does not have primary custody, they still have a role to play in the child’s life. The right of visitation is thus a legal mechanism to maintain and nurture the parent-child relationship after a separation or divorce.
The main actors involved in the right of visitation are the parents, the children, and the competent authorities, including the courts. The legal framework is primarily constituted by art. 273 of the Swiss Civil Code (CC), which establishes the guiding principles for exercising 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.
Thus, the definition and application of the right of visitation in Switzerland are guided by a desire to preserve the relationship between the child and the non-custodial parent, while ensuring that the child’s interests remain at the forefront.
Allocation of visitation rights
The allocation of visitation rights in Switzerland is a complex issue, requiring a delicate and individualized analysis of each family situation. Contrary to a rigid and uniform right, the allocation of visitation rights is often adapted to the specific circumstances of each family. Criteria for determining visitation 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 they are of age to express them.
In Switzerland, the allocation of visitation rights can be determined either by a private agreement between the parents or by judicial intervention. Parents are encouraged to find a mutual solution that takes into account the needs and interests of the child. However, if an amicable agreement is not possible, the courts can intervene to establish a visitation regime. In this case, the decision is based on the child’s best interests, a guiding principle in Swiss family law.
The allocation can be categorized as ordinary or extraordinary. Ordinary allocation generally refers to a regular and structured visitation right, often established during a separation or divorce. Extraordinary allocation can occur in more complex situations where exceptional circumstances require adaptation or modification of the standard visitation regime.
The child’s opinion
The child’s opinion holds significant importance in determining the right of visitation in Switzerland. This approach is in line with the United Nations Convention on the Rights of the Child, which establishes that children 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, evaluates whether the child is of discerning age and if their opinion can be taken into account in the decision on visitation rights.
Methods for gathering the child’s opinion can vary. This may include interviews with a judge, a psychologist, or a family mediator. The goal is to create an environment where the child can express themselves freely, without pressure or undue influence from parents or other adults.
While 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 overall well-being of the child, the parent’s ability to provide for the child’s needs, and the continuity and stability of relationships. The child’s opinion is integrated into a broader assessment of the child’s best interests.
However, this approach is not without criticism. Some may question a child’s ability to express an impartial opinion, especially in a context where parents may have conflicting interests. Others emphasize the importance of protecting the child against potential pressure to choose between parents.
Personal proximity (art. 273 CC)
Art. 273 of the Swiss Civil Code establishes the notion of personal proximity as a fundamental principle in regulating 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 proximity is not limited to mere physical interaction or presence in the child’s life. It encompasses a deeper relationship, characterized by affection, understanding, communication, and support. This can include participating in common activities, creating shared memories, and building a relationship of mutual trust and respect.
The principle of personal proximity guides how visitation rights are organized and implemented. It encourages an allocation that allows the non-custodial parent to play an active and meaningful role in the child’s life, even if they do not reside with them. The frequency and duration of visits, arrangements for holidays and special occasions, and other aspects of visitation rights are designed to foster and maintain this proximity.
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 non-custodial parent’s ability to exercise visitation rights in a way that supports the child’s best interests. If the non-custodial parent is incapable of maintaining a healthy and positive relationship with the child, or if personal proximity is compromised by other factors, visitation arrangements can be modified.
Restriction and removal of visitation rights
The restriction or removal of visitation rights are serious measures taken only in exceptional circumstances. These measures are guided by the principle of the child’s best interests, which is at the heart of Swiss family law.
The restriction of visitation rights may occur when maintaining unrestricted visitation rights 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 observed during visits. It is often used in response to issues such as neglect or non-compliance with visitation rules.
Removal, an even more extreme measure, occurs when the continuation of any form of visitation rights presents a serious danger to the child, such as in cases of violence or abuse. The removal of visitation rights means that the non-custodial parent completely loses the legal right to see the child. As with restriction, removal is not a measure taken lightly and requires thorough evaluation and solid justification.
In conclusion, while the right of visitation is a fundamental principle in Swiss family law, it can be restricted or even removed in certain circumstances. These 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 and the primary responsibility to protect the child’s health, safety, and well-being.
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PBM Avocats – Law firm based in Geneva and Lausanne. Lawyers registered at the bars of Geneva and Vaud.
PBM Avocats in Geneva
Boulevard Georges-Favon 26
1204 Genève
T. : +41 22 348 32 35
PBM Avocats in Geneva
Boulevard Georges-Favon 26
1204 Genève
T. : +41 22 348 32 35
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