Facts
The proceedings concern a divorce and the allocation of parental care for two joint children. The parties, [X.] and [Y.] , married in 2000 and have two children, [A.] (2005) and [B.] (2008). Since February 2009, the parties have been living separately. In the context of the marital protection proceedings, custody of the children was allocated to the mother. In the divorce proceedings, the father requested the allocation of parental care to him. The District Court of Zurich divorced the couple and placed the children under the parental care of the mother. The High Court of the Canton of Zurich dismissed the father's appeal without hearing the children.
The father lodged a complaint and requested the allocation of parental care to him or the remittal of the case to the lower court. The Federal Court partially upheld the complaint and remitted the case to the High Court for the hearing of the children and a new decision.
Considerations
The Federal Court established that a child hearing in the sense of Art. 298 para. 1 CPC can be requested if the child has reached the relevant age threshold of six years or if important reasons exist. In the present case, the High Court rejected the child hearing, although the daughter had exceeded the relevant age threshold and the son was about to reach it.
The Federal Court further established that the investigation maxim and the official maxim (Art. 296 para. 1 and 3 CPC) are applicable when determining parental ability to educate. However, an anticipated assessment of evidence is also admissible in this area. The High Court extensively expressed its opinion on the parents' ability to educate and the previous course of exercising custody and visitation rights and established that a certain calming had occurred since the…