Visiting rights

In Switzerland, access rights are a vital part of the legal system, shaped by years of social and family evolution.
Historically, separation and divorce could create a significant distance between the non-custodial parent and the child.
However, with a gradual shift in social norms, recognizing the importance of a sustained relationship with both parents, Swiss law has adapted its provisions to facilitate the maintenance of these crucial relationships.

In the event of divorce or separation, access becomes crucial, offering the child a chance to nurture an enriching relationship with the non-custodial parent.
Research indicates that these relationships, when nurtured, can positively influence the child’s well-being, facilitating harmonious development.
Accordingly, Swiss courts, as well as parents, strive to create an access plan that best serves the child’s best interests.

Definition of visiting rights

Access, a central term in Swiss family law, requires a detailed explanation of its meaning and scope.
It differs from custody rights, although the two terms are often used interchangeably.
Custody rights refer to the primary responsibility for the child, encompassing decisions relating to upbringing and welfare, while access rights relate exclusively to the time the non-custodial parent can spend with the child.

This distinction is vital to note, as it highlights the significant role that the non-custodial parent continues to play in the child’s life.
Access, as a legal device, serves to nurture and strengthen this parent-child relationship after separation.
The main players in this field are parents, children and judicial authorities, who rely primarily on article 273 of the Swiss Civil Code to guide the guiding principles of access rights.

In Swiss law, access rights are designed to help maintain the relationship between the child and the non-custodial parent, while putting the child’s needs and interests first.

Distribution of visiting rights

The allocation of visitation rights in Switzerland is a complex task, requiring a careful, individualized study of each family’s situation.
Rather than imposing a strict, uniform rule, it is often modulated according to the particularities of each family.
Factors influencing the determination of visitation rights may include the child’s age, the distance between the parents’ homes, the non-custodial parent’s ability to care for the child, and the child’s preferences, if he or she is old enough to express them.

In the Swiss context, visitation rights can be determined by mutual agreement between the parents or by a court decision.
It is encouraged to find a consensual solution, centered on the needs and interests of the child.
In the event of an impasse, the courts can intervene to establish a visitation regime, always taking into account the best interests of the child, a guiding principle in Swiss family law.

The breakdown can be either ordinary, involving regular, structured visits, or extraordinary, requiring adjustments in response to exceptional circumstances that affect the standard visitation regime.

The child’s opinion

In the Swiss legal sphere, the child’s opinion is a primary consideration when awarding access rights.
This approach is in line with the United Nations Convention on the Rights of the Child, which stipulates that children who are capable of forming their own views should have the right to express them in all decisions affecting them.

In Switzerland, the precise age at which a child can formulate a valid opinion is not legally fixed.
Instead, it is assessed on a case-by-case basis whether the child has the necessary maturity to provide a considered opinion, which can then influence the decision on visitation rights.
The child’s opinions can be gathered through interviews with a judge, psychologist or family mediator, aimed at providing an environment where the child can express himself without external pressure.

Although the child’s opinion is taken into account, it is not the only determining factor.
Judges balance this opinion with other crucial elements such as the child’s well-being, the parent’s ability to provide for the child, and the stability of existing relationships.
This opinion forms part of an overall assessment of the child’s best interests.

Personal proximity (art. 273 CC)

Article 273 of the Swiss Civil Code anchors the concept of personal closeness as a cardinal element in the management of visitation rights.
This notion transcends mere physical interaction, emphasizing the need for a deep relationship marked by compassion, understanding and ongoing communication.
This includes participating in shared activities, creating memorable moments, and building a relationship based on trust and mutual respect.

This principle guides the organization and execution of visitation rights, encouraging an allocation that enables the non-custodial parent to become significantly involved in the child’s life.
The wording of visitation rights takes into account various factors, promoting and preserving this closeness.

Restricting and withdrawing access rights

Restricting or withdrawing visitation rights in Switzerland is a harsh decision, and is generally the last resort in exceptional circumstances.
Reasons for such measures may include endangerment of the child, serious conflicts between the parents that disrupt the child’s stability, or persistent violation of access agreements.

The main objective is always to protect the child’s well-being.
By carefully analyzing all the circumstances, judges seek to reach a balanced decision that safeguards the child’s best interests.
In extreme cases, a restriction or total abolition may be put in place, although efforts are generally made to avoid reaching such an extreme.

Access rights intrinsically focused on the child’s well-being

In summary, access in Switzerland is an area of family law that is intrinsically focused on the well-being of the child.
By maintaining meaningful personal proximity, listening to the child’s views and carefully navigating situations where restriction or removal may be necessary, the Swiss legal system strives to create an environment that fosters the child’s healthy and balanced development.

Drawing on a wealth of case law and legislation, the Swiss legal landscape continues to evolve in response to society’s changing dynamics, with a renewed focus on protecting and promoting children’s interests in access arrangements.