Jurisdiction of the guardianship authority at the place of residence of the children for the appointment of a guardian

Facts

R., born in 2000, and S., born in 2003, are two of the three minor sons of A. and B. The parents separated on August 30, 2003 and were granted the right to live separately. The Matrimonial Protection Court in Winterthur placed the two children under the parental care of the mother. On November 11, 2004, the guardianship authority of Rüdlingen withdrew the parental care from the mother. On July 12, 2005, the social welfare authority of the municipality of Zell placed the children R. and S. permanently in the home in Herrliberg, where they have been residing since August 23, 2005. On March 7, 2006, the District Court of Winterthur deprived both parents of parental custody, placed the three children under guardianship, and requested the Guardianship Authority of Winterthur to appoint a guardian. The Guardianship Authority of Winterthur disputed its jurisdiction to appoint a guardian for the three children and designated the guardianship authorities at the respective place of residence of the children as competent. The Guardianship Authority of Herrliberg, in turn, denied its jurisdiction.

Considerations

The court that is responsible for arranging the relations between the parents and the children according to the provisions on divorce is also competent for ordering the necessary child protection measures, pursuant to Art. 315a para. 1 CC, while the guardianship authorities are responsible for their implementation. The guardianship authorities must implement the court order, but are not entitled to refuse the implementation because they consider the child protection measure to be unsuitable.

In the area of child protection measures, the guardianship authorities at the child's place of residence are generally competent. The place of residence of a child under parental care is the place of residence of the parents or, if the parents do not have a common place of residence, the place of residence of the parent with whom the child is living; in all other cases, the child's place of stay is considered the place of residence.

Although…