Facts
The present case concerns the exercise of the right of access by the divorced father vis-à-vis his two daughters. The Higher Court had restricted the father's claimed right of access, as the children, particularly the older daughter, strongly opposed it. The mother then filed a complaint with the Federal Court.
The Federal Court had to assess whether the restriction of the father's right of access was lawful or whether the right of access should be completely revoked. This raised the question of the extent to which the child's will should be taken into account in the design of the right of access and when a threat to the child's well-being exists that would justify the revocation or restriction of the right of access.
Considerations
The Federal Court stated that the child's will must not be the sole decisive factor in the design of the right of access. While the child's attitude towards the non-custodial parent must be taken into account, the child's resistance does not automatically lead to a threat to the child's well-being that would justify the revocation of the right of access.
Rather, it must be examined in each individual case why the child adopts such a defensive attitude and whether the exercise of the right of access actually endangers the child's well-being. In this regard, the divorce court judge must decide according to Art. 156 of the Swiss Civil Code (ZGB) and the modification court judge according to…