Facts
In this case, it was about a divorce settlement in which the parties had agreed that parental responsibility would be held jointly by both parents and that the father would have extensive visitation and vacation rights. However, both the District Court and the Cantonal Court refused to approve the settlement on these two points.
The Cantonal Court justified the rejection of joint custody on the grounds that according to Art. 297 para. 3 CC, parental responsibility after divorce must be assigned to one parent. With regard to the extensive visitation and vacation rights, the Cantonal Court referred to the practice of the Grisons courts, according to which a visitation right of one weekend per month and three weeks of vacation per year is considered appropriate.
The father appealed against this judgment.
Considerations
The Federal Supreme Court first confirmed the case law that, according to Art. 297 para. 3 CC, joint parental responsibility after divorce is excluded. It saw no reason to deviate from this case law, as the legislator had consciously decided that after divorce, parental responsibility should be assigned to one parent in order to best ensure the child's well-being.
However, with regard to the visitation rights, the Federal Supreme Court came to a different conclusion. It stated that the Cantonal Court, in the question of approving the extensive visitation rights agreed by the parties, was not allowed to simply refer to…