Protective Measures for Minors in Divorce Proceedings Between Foreign Spouses

Facts

On 13 February 1989, Mr. [B.] initiated divorce proceedings before the District Court of Zurich. By decision of 15 February 1990, the court ordered interim measures for the duration of the proceedings, granting Mr. [B.] visitation rights for the three children placed in the custody of D. [B.] and setting the amount of child support. Mr. [B.] appealed the decision regarding the visitation rights, but the appeal was dismissed by the High Court of the Canton of Zurich.

Mr. [B.] then filed an "appeal" seeking the annulment of the decision of the High Court and the obligation for the latter to consider the appeal concerning the visitation rights, as well as a re-evaluation of the amount of child support.

Considerations

The Federal Tribunal considers that the contested decision concerns the issue of the competence of the Swiss judge to order interim measures in the divorce proceedings. Only a nullity appeal is admissible against such decisions on competence, pursuant to Art. 49(1) of the Federal Judicial Administration Act (FJA).

Regarding the protection of minors, the Federal Tribunal considers that the Hague Convention of 5 October 1961 applies by virtue of Art. 85(1) of the Federal Act on Private International Law (PILA), and…