Facts
The High Court of the Canton of Lucerne had, in a divorce judgment dated December 21, 1992, placed the children M. and D. under the parental authority of the mother E. H. The father O. H. was granted a right of access, which, however, had to be exercised under the supervision of a third party. The mother E. H. appealed against this access arrangement.
The Federal Supreme Court set aside the decision of the High Court regarding the regulation of the right of access and remanded the matter to the lower court for a new decision.
Considerations
The Federal Supreme Court stated that in divorce proceedings, the principle of ex officio investigation applies without restriction to the allocation of the children and the regulation of the right of access. Neither are new claims excluded, nor is the Federal Supreme Court bound by the parties' motions.
The High Court had assumed that the evidence of sexual abuse of the child M. by the father had not been proven, but the suspicion was justified. Furthermore, the child's well-being was endangered in the exercise of the right of access due to the disturbed relationship of trust between the parents. The Federal Supreme Court considered the arrangement ordered by the High Court, according to which the right of access may only be exercised under supervision, as…