Facts
Parties and procedural history:
The appellant [A.B.] (born 1976) and the respondent [C.B.] (born 1969) were married since 2013 and have a common daughter [D.B.] (born 2013). After the respondent moved out of the marital home in July 2015, an interim protection order was issued on 18 September 2015 placing [D.B.] under the mother’s care, regulating the father’s visitation rights and setting monthly alimony at CHF 850.--. In August 2017, the appellant filed a joint divorce petition. Following a risk report from the Zurich Children’s Hospital (suspicion of sexual abuse by the father), the Zurich Child and Adult Protection Authority (KESB) ordered supervised visitation in August 2017. A criminal investigation was closed in June 2018.
In January 2018, the respondent applied to modify the interim measures. After an agreement between the parties in June 2018, a psychological expert report was obtained, which was available in June 2019. In June 2019, the parties agreed to unsupervised contact, which was to be expanded in four phases. In October 2019, the respondent again applied to modify the measures. The Zurich District Court dismissed the application with a judgment dated 10 December 2020 and issued the divorce decree. [D.B.] was placed under the sole parental care and custody of the mother (with reservation of joint parental care in the event of a possible relocation abroad). The respondent was granted visitation rights every other weekend and on Wednesdays, which were later to be extended to overnight stays. The mother was ordered, under threat of penalty, to hand over [D.B.] during visitation times.
The appellant appealed and requested that overnight stays with the respondent be avoided and that visitation rights be limited to regular visits without overnight stays. The respondent filed a cross-appeal and requested an extension of weekend visits to Friday evenings. The Higher Court of the Canton of Zurich set aside the first-instance ruling and, in its judgment dated 19 April 2023, determined that overnight stays with the respondent should be introduced no earlier than August 2023 (Wednesday) and November 2023 (weekend). The penalty order against the appellant to hand over [D.B.] during visitation times was confirmed.
On 24 May 2023, the appellant filed an appeal with the Federal Supreme Court, requesting the annulment of the Higher Court’s judgment and a remittal to the lower court. She argued that the extension of visitation rights to overnight stays endangered the child’s welfare, as [D.B.] strictly rejected overnight stays with the respondent and was capable of forming her own opinion in this regard. She also challenged the penalty order as disproportionate. The Federal Supreme Court dismissed the application for suspensive effect and rejected further procedural requests (e.g., appointment of a child advocate).
Considerations
1. Admissibility of the appeal:
The Federal Supreme Court examines whether the civil appeal is admissible. The appeal concerns the regulation of personal contact between the non-custodial father and the minor daughter, as well as the associated penalty order against the mother. This regulation is a civil matter without pecuniary value, so there is no requirement for a monetary threshold (Art. 72 para. 1 FSCA). The Higher Court, as the last cantonal instance, issued a final decision with its judgment of 19 April 2023, so the appeal period was met (Art. 100 FSCA). The appellant is affected in her protectable interests (Art. 76 para. 1 FSCA). However, to the extent that she challenges the lower court’s decision on procedural costs, the appeal lacks sufficient reasoning (Art. 42 para. 1 FSCA), so the Court will not rule on this aspect. The request for the appointment of a child advocate is moot, as the Higher Court has already appointed a child representative.
2. Scope of review and exercise of discretion:
The Federal Supreme Court reviews discretionary decisions of the lower court only if they deviate without justification from recognised principles, disregard legally relevant circumstances or lead to obviously inequitable results (BGE 142 III 336 para. 5.3.2). In deciding on personal contact, the Higher Court enjoys broad discretion (BGE 142 III 612 para. 4.5). The appellant must raise specific objections that plausibly demonstrate which rights or legal provisions have been violated (Art. 42 para. 2 FSCA; BGE 143 II 283 para. 1.2.2).
3. Extension of visitation rights to overnight stays:
The Higher Court justified the extension of visitation rights to overnight stays on the grounds that [D.B.] is of primary school age and overnight stays are common at this age, provided there are no specific reasons against it. No such reasons had been presented or were apparent. The allegation of sexual abuse had proven unfounded and could therefore not justify a restriction of contact rights. The psychological expert report of 2019 contained no indications of limited parenting ability on the part of the respondent. The lower court emphasised that its decision was based on a prognosis and that a later correction was not ruled out. It argued that an extension of contact would promote the child’s welfare, as a later expansion would be less likely if ordered today. Moreover, if the extension were ordered now, the respondent would have to take the initiative in the event of a later expansion, whereas if it were ordered later, the appellant would have to assume the role of the applicant for modification. The lower court also took into account the recommendation of therapist Dr med. [E.] , who considered a preparation period of up to six months for overnight stays to be appropriate.
The appellant alleges a violation of Arts. 273 and 307 CC and argues that [D.B.] strictly rejects overnight stays with the respondent and is capable of forming her own opinion in this regard. She refers to the child’s consistent and autonomous expression of will, which has opposed overnight stays for years. The Higher Court did not give sufficient weight to this will and thus acted arbitrarily. In addition, she claims that the respondent’s parenting ability is limited, as he has not made any effort to build trust and has arbitrarily ignored court orders. The appellant argues that without a cautious approach, overnight stays would not be possible.
The Federal Supreme Court notes that the child’s will is an important criterion in regulating personal contact, but it is not the sole decisive factor (judgment 5A_875/2017 of 6 November 2018 para. 3.3). While a child capable of forming its own opinion may express its will, this will cannot be equated with the child’s welfare. Case law assumes that children are generally capable of forming their own opinions from the age of twelve (judgment 5A_699/2021 of 21 December 2021 para. 6.1). At the time of the contested decision, [D.B.] was nine years and eight months…