The Role of Judges in Swiss Federal Jurisprudence Regarding Shared Physical Custody

Court judgments must refer to the child’s best interests when determining physical custody arrangements in parental separation cases (Article 3 para. 1, Convention on the Rights of the Child; Article 133, Swiss Civil Code). This paper explores whether the criteria outlined in Swiss federal jurisprudence for evaluating shared physical custody (SPC) in the child’s best interest align with social science findings on children's outcomes in both lone and SPC arrangements. 

Parents with higher socioeconomic status (SES) are more likely to adopt SPC arrangements. SES parents also tend to experience lower conflict and maintain higher quality relationships with their children compared to lower SES parents. These characteristics has partially explained the association between SPC and children’s wellbeing, reflecting social selection in this custody arrangement and its better outcomes for children in SPC compared to those in LPC. However, over the last decade, SPC has gradually spread across social strata, aided by an increasing favorable legal framework. While research on children from disadvantaged backgrounds and high-conflict families remains limited and fragmented, there is growing evidence that SES alone does not explain the advantages experienced by children in SPC. 

Research indicates that three key mediators shape children's well-being in both intact families and in situations of separation or divorce: the quality of parenting, the quality of the child's relationships with respective parents and/or parental figures, and the quality of the relationships between the parents and/or parental figures.

Given the evidence of various children’s outcomes based on custody arrangements, it is crucial to understand the extent to which the arguments in court judgments are consistent with social science findings and, when they are not, what factors contribute to these discrepancies. Schwarzer (2021) analyzed approximately thirty1 Swiss Federal Court (FC) judgments, primarily concerning SPC but also including LPC, as the legal criteria are largely similar with some nuances. The judgments were randomly selected from all judgments issued between July 2014 to March 2021. 

The three main findings are:  a) most judgments refer to social science research’s criteria on the child’s well-being but fail to acknowledge the current state of research, the limitations and open questions in the field; b) judgments differ greatly in the extent to which they evaluate the parents’ pre-separation situation or its potential development over time; and c) the legal criteria are predominantly interpreted according to the “static approach” to the child’s best interests, favoring the status quo, which results in granting LPC  to the mother. The scarce consideration of empirical research on custody arrangements’ impacts and judges’ great interpretative power produce a certain level of unequal treatment for families. The FC generally supports the rulings made by the lower courts. For instance, it confirms both decisions that indicate a young child, due to their age, does not spend any overnight stays with their non-custodial parent2, as well as those3 that favor SPC for young children. We conclude with some suggestions on how to reduce this problem.

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