Jurisdiction of Swiss authorities in cases of a child’s relocation to a non-contracting state and assessment of joint parental custody

Facts

The unmarried parents of child C. (born 2006) had been living separately since the child’s birth. Parental custody was held by the mother, with whom C. resided. In the summer of 2013, conflicts over visitation rights intensified, prompting the Child and Adult Protection Authority (KESB) to order guardianship under Article 308 paragraph 2 CC.

In spring 2014, the mother informed the father that she intended to move with C. and her partner to Doha (Qatar), where her partner would be working. The father then filed a risk report and applied for transfer of parental custody to himself and for a prohibition on the relocation. The KESB granted the parents joint parental custody and permitted the mother to relocate to Qatar. The District Council of Meilen dismissed the father’s appeal. Both parents appealed this decision to the Higher Court of Zurich. At the beginning of 2015, the mother moved with C. to Qatar, where the child attended school. The Higher Court did not entertain the appeals, as it considered that Swiss authorities’ jurisdiction had lapsed due to the relocation to Qatar (a non-contracting state). The mother filed an appeal against this decision with the Federal Supreme Court.

Considerations

The Federal Supreme Court first examined the international jurisdiction of the Swiss authorities. Under Article 85 paragraph 1 PILA and Article 5 HCCH Child Abduction Convention, the authorities at the child’s habitual residence are generally competent. If the habitual residence changes to a contracting state of the HCCH Child Abduction Convention, jurisdiction transfers to the authorities of that state. For non-contracting states such as Qatar, however, the principle of perpetuatio fori applies: once established, jurisdiction remains, as it cannot be ensured that the receiving state would take child protection measures or continue proceedings. Otherwise, this could lead to a jurisdictional gap that might endanger the child’s welfare.

The Court then assessed the allocation of parental custody. Since the 2014 custody reform, parental custody is generally held jointly by both parents (Article 296 paragraph 2, Article 298a paragraph 1, Article 298b paragraph 2 CC). Sole custody is only permissible in exceptional cases where the child’s welfare so requires. The legislator assumes that joint custody generally serves the child’s welfare best. Sole custody is only justified in cases of serious, chronic conflicts that concretely endanger the child’s welfare.

In the present case, although parental conflicts had intensified due to the planned and subsequently executed…