Facts
The parties married in Rome in 2009 and have a son born in 2013. The family lived primarily in Switzerland, but also partly in Rome. In December 2018, the mother filed for marital protection, whereupon the District Court of March awarded custody of the child in January 2020. Both parties appealed, whereupon the Cantonal Court of Schwyz transferred custody to the father and regulated maintenance payments in June 2021.
The mother and the father filed a complaint against the appeal decision. The Federal Supreme Court overturned the appeal decision regarding the allocation of custody to the father and the mother's maintenance obligation from August 2021.
Considerations
The Federal Supreme Court concluded that the Cantonal Court had misunderstood the rules on international jurisdiction. According to the Hague Convention on Child Protection, jurisdiction generally changes with the change of the child's habitual residence. Since the mother had moved with the child to Italy, the Cantonal Court was no longer competent at the time of its judgment. However, the District Court, which had decided a few months after the departure, had international jurisdiction, as the departure was considered unlawful.
For maintenance, the perpetuatio fori applied, so that the Swiss…