Facts

Parties: [A.A.] (appellant) and [B.A.] (respondent), parents of the children [C.A.] (born 2009) and [D.A.] (born 2012).

Institutions: Family Court of Aarau, Higher Court of the Canton of Aargau, Chamber for Child and Adult Protection, Federal Supreme Court.

Main Facts:

  • The parents live separately, and the children are under the custody of the mother [B.A.] . The visitation rights of the father [A.A.] were restricted and supervised due to a mental illness (schizophrenic disorder) and incidents of violence against the mother.
  • The Family Court of Aarau ordered supervised visitation rights for [A.A.] on June 25, 2019, which was confirmed by the Higher Court of the Canton of Aargau with a decision on December 10, 2019.
  • [A.A.] filed an appeal with the Federal Supreme Court and requested the lifting of the supervised visitation rights as well as an expansion of the visitation rights.

Considerations

1. Admissibility of the Appeal The appeal is admissible as it is directed against a final decision of a higher cantonal court as an appellate instance, and the appellant has a protectable interest in the lifting of the challenged decision. The appeal has been filed in a timely manner and is generally to be considered.

2. Violation of the Principle of Proportionality and the Right to Family Life: The appellant alleges that the order of supervised visitation rights violates the principle of proportionality (Art. 5 para. 2, Art. 36 para. 3 Cst.) and the right to family life (Art. 13 para. 1 Cst.). However, the Federal Supreme Court notes that the allegation of a constitutional violation no longer has independent significance since the provisions of the CC are to be interpreted in the light of the constitution. The allegation of arbitrariness is also rejected as the Higher Court considers the regulation as a transitional solution and the guardian is to submit a progress report.

3. Violation of Art. 274 para. 2 CC The appellant alleges that the prerequisite for the restriction of personal contact, namely the endangerment of the child's well-being, has not been proven. The Federal Supreme Court notes that while the Higher Court refers to the mental illness of the appellant and his behavior, it does not provide concrete indications of an endangerment of the child's well-being. General and vague findings are not suitable to prove an endangerment of the child's well-being and to justify a restriction of personal contact.

4. Justification of the Restriction of Visitation Rights The Federal Supreme Court notes that the reasons given by the Higher Court for the…