Facts

Parties and procedural history: The spouses [A.A.] (appellant, father) and [B.A.] (respondent, mother) married on 8 May 2015. The marriage produced the common daughter [C.A.] (born 2017). The spouses have been separated since 10 May 2019. The mother has another daughter from a new relationship (born 2020). Since 23 September 2020, divorce proceedings have been pending before the District Court of Zurich, in which both parties applied for provisional measures.

First-instance order: By order of 21 April 2021, the District Court placed the daughter under alternating custody for the duration of the divorce proceedings, determined the daughter's legal residence to be at the mother's residence and regulated the care arrangements. It also ordered the father to pay maintenance contributions (retroactive from 1 August 2019) and an advance on costs of CHF 15'000.--.

Cantonal appeal proceedings: On 5 May 2021, the father filed an appeal with the Higher Court of the Canton of Zurich, applying for the daughter's residence to be fixed with him, as well as for suspensive effect. On 27 May 2021, the Higher Court dismissed the application for suspensive effect by decision. By judgment of 2 March 2022, it dismissed the appeal and imposed the procedural costs on the father.

Proceedings before the Federal Supreme Court: On 1 April 2022, the father filed a civil law appeal and applied for the daughter's legal residence to be assigned to him, alternatively for remittal. In the alternative, he also applied for a division of costs in the proceedings before the lower court and for the decision on suspensive effect to be set aside. By order of 4 April 2022, the Federal Supreme Court refused suspensive effect. On 22 June 2022, the father submitted the partial divorce judgment of 26 April 2022 and a partial agreement on ancillary divorce consequences of 13 June 2022. No responses were obtained.

Subject matter of the dispute: The only point in dispute is where the daughter is to have her legal residence, specifically in which school district she is to be enrolled. The lower court relied primarily on the length of the school route. The father alleges arbitrariness in the establishment of facts and application of law, insufficient reasoning, circular reasoning, disregard of stability and gender-based discrimination.

Considerations

Admissibility: The contested decision is a final decision (Art. 90 FSCA) of a higher cantonal court on provisional measures in divorce proceedings (determination of legal residence), in a non-pecuniary civil matter (Art. 72 para. 1 FSCA). The interest worthy of protection remains despite the partial judgment and partial agreement, since the question of residence is not settled and the agreement is not legally valid without judicial approval (Art. 279 para. 2 CPC). The appeal against the decision on suspensive effect is inadmissible, as it lapsed with the appellate decision and subsequent correction is not possible (Art. 93 para. 3 FSCA). An appeal against first-instance decisions is inadmissible (Art. 75 FSCA). A genuine novum (the mother's new pregnancy) is disregarded, since it was not justified why it only became relevant after the contested judgment (Art. 99 para. 1 FSCA). The signature by a person not registered is immaterial, since the appointed lawyer also signed the appeal (Art. 40 para. 1 FSCA).

Cognition and principle of complaint: In matters of provisional measures, only the violation of constitutional rights may be complained of (Art. 98 FSCA). The strict principle of complaint applies (Art. 106 para. 2 FSCA); appellatory criticism is inadmissible. Arbitrariness exists where a decision is manifestly untenable, not only in its reasoning but also in its outcome.

Facts and arbitrariness complaint: The complaint of arbitrary establishment of facts fails. The father does not dispute that the school route is shorter when residence is with the mother; he only criticises the extent of the time saving. This does not establish arbitrariness, particularly since the lower court necessarily had to make predictions about school allocation, which may prove incorrect. The prediction that the daughter will form friendships at the new place of residence is also not arbitrary. The father has further not shown that he raised this objection before the lower court (Art. 105 para. 1 FSCA).

Legal reasoning and child's welfare: Art. 25 para. 1 CC is not relevant, since both parents live in the city of Zurich. Where custody is divided roughly equally, residence is to be determined by the court. The decisive factor is the welfare of the child; the court makes a fact-based prognosis as to which solution best serves the child's welfare (Art. 298 CPC; BGE 142…