Facts
The boy M. E., born in 1981, has been living with his paternal grandparents, the H. family, since his discharge from the hospital after birth. He is under the parental authority of his mother K. E. The mother initially lived with the child and the father H. H. at the grandparents' home in B. In July 1983, she moved to her parents' home in X. and attempted to take the child with her. This attempt failed due to the resistance of the H. family and the child's guardian.
The father H. H. appealed the decision of the Regierungsstatthalter, who had rejected the relocation of the child to his mother, to the Regierungsrat of the Canton of Lucerne. The Regierungsrat upheld the appeal and rejected the relocation. Thereupon, the mother filed a constitutional appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court found that the Regierungsrat had incorrectly assessed the case. Instead of considering the particularities of the case, it had treated the case like a typical foster care relationship and had relied primarily on Art. 310 para. 3 CC.
The Federal Supreme Court emphasized that the mother had cared for the child together with the paternal grandparents since his birth and only lost custody when she moved away. Therefore, Art. 310 para. 3 CC cannot simply be applied. Rather, the decisive factor is whether the relationship…