Parents’ Rights to Determine Residence and Possible Sanctions

Parents’ Rights to Determine Residence and Possible Sanctions

Parental custody includes the right to determine the child’s place of residence (Art. 301a para. 1 ZGB).

Determination of Residence and Relocation in the Case of Sole Parental Custody
The parent exercising parental authority alone is entitled to determine the child’s place of residence. The custodial parent is only obliged to inform the non-custodial parent about a change of the child’s habitual residence.

Determination of Residence and Relocation in the Case of Joint Parental Custody
If the parents exercise joint parental custody and one parent wishes to change the child’s place of residence, this requires the consent of the other parent or the decision of the court or the child protection authority, provided that:

  • the new place of residence is abroad, or
  • the change has significant effects on the exercise of parental authority and personal interac-tion or care by the other parent (Art. 301a para. 2 ZGB).

The need for consent to the move must not be understood as meaning that the parent with custody who wishes to move could be prohibited from moving. The freedom of establishment and movement must be respected (BGE 142 III 481). In the event of a dispute, it must be assumed that the parent concerned will move, and it must be examined whether this will necessitate an adjustment of the care and visitation rights regulations. The decisive question is whether the welfare of the child is better safeguarded if it is with the parent who wishes to leave or if it is with the parent who remains behind (BGE 142 III 502).

Sanctions in the Event of Abusive Relocation
Art. 301a ZGB does not provide for a direct civil sanction in the case of a violation of the right to determine residence. The other parent thus has no possibility of effectively preventing or reversing the departure (BGE 144 III 10).

A division of custody from the primary carer to the other parent could result in indirect sanctioning. However, this presupposes that the child would be better looked after by the other parent in view of the overall circumstances and that the other parent can and will actually look after the child (BGE 142 III 481 E. 2.7, BGE 142 III 502).

In the context of child protection measures, the child protection authority can issue a directive within the meaning of Art. 307 para. 3 of the Swiss Civil Code concerning the place of residence of the children. The standard of assessment is always the best interests of the child, which is why this measure is ordered if the change of the place of residence puts the children in immediate danger or if the reversal of the change of place eliminates this danger.

In the case of unauthorised removal abroad, a repatriation procedure should be considered.

-MLaw Leutrime Asani, Attorney at Law at Studhalter & Pfister Rechtsanwälte AG