Facts
On 20 November 1973, the communal council of X decided, based on Article 284 of the Swiss Civil Code (CC), to withdraw custody of child A.Z. from their widowed father and to obligate him to pay a monthly maintenance allowance of 300 Swiss francs. The father, Z, contested this decision before the district court, disputing in particular the territorial jurisdiction of the communal council of X, arguing that he had been domiciled in the canton of Zurich since 15 November 1973. The district court rejected his complaint on 6 March 1974. Z then brought the case before the cantonal court of the canton of Aargau, which also rejected his complaint on 12 September 1974. Finally, Z appealed to the Federal Court on 19 January 1975, filing both a request for annulment and a constitutional appeal against the decision of the cantonal court.
Considerations
The Federal Court examined the issue of territorial jurisdiction for the withdrawal of child custody under Article 284 of the CC. It recalled that the law does not contain any specific provision on territorial jurisdiction in this matter, but that case law has filled this gap by applying by analogy Article 376, paragraph 1, of the CC (curatelle). Thus, the competent authority is that of the child's domicile or of one of the parents whose parental authority must be restricted by the withdrawal of custody.
The Federal Court also considered that, on a temporal level, it is the opening of the administrative procedure that is determinative, in accordance with the practice in matters of curatelle. It found that, in the canton of Aargau, the communal council is the competent authority in matters of guardianship (Article 59, paragraph 1, of…