Facts

The dispute opposes the parents, A. and B., who are separated and have a daughter, C., born in 2013, placed under their joint parental authority and alternating custody. A guardianship was established in 2015 under art. 308 al. 1 and 2 CC. The mother requested a new assessment of the custody situation in October 2017. The KESB regulated the parents' custody shares in June 2018, but the father appealed this decision, which was rejected by the Cantonal Court. The father then appealed to the Federal Court, requesting the annulment of the lower instances' decisions for lack of competence.

The key facts are as follows

  • The KESB regulated the parents' custody shares in June 2018.
  • The father appealed this decision, which was rejected by the Cantonal Court.
  • The father then appealed to the Federal Court, requesting the annulment of the lower instances' decisions for lack of competence.

Considerations

The Federal Court examined the question of the KESB's competence in regulating the interests of minor children. According to art. 315 CC, the KESB is competent to regulate the interests of minor children, unless a court is already seized of the case. In this case, the Federal Court considered that the KESB had competence to regulate the parents' custody shares, but that the court seized of the case had competence to regulate questions related to the child's maintenance.

The Federal Court also examined the question of the nullity of the lower instances' decisions. According to case law, a decision is null if it is tainted with a serious flaw, if it is contrary to the…