Facts
The parties are the unmarried parents of the daughter [C.] , born in 2017. The mother (appellant) has lived separately from the father (respondent) since March 2019. By decision of 10 July 2019, the KESB Luzern-Land regulated the consequences of the separation: joint parental authority was maintained, alternating custody was ordered, the child's residence was set with the mother, and a curatorship within the meaning of Art. 308 para. 2 CC was established.
The mother challenged this decision. By judgment of 2 March 2021 (3H 19 52), the Cantonal Court of Lucerne, 2nd Division, confirmed joint custody and ordered alternating custody on an equal basis (mother from Monday to Wednesday at 11:30 a.m. and from Friday at 6 p.m. to Sunday evening, excluding every second weekend; father from Wednesday at 11:30 a.m. to Friday at 6 p.m. and every second weekend; school holidays and public holidays shared equally), set the child's residence with the father, and defined the duties of the curator.
On 23 April 2021, the mother filed a civil appeal with the Federal Supreme Court and requested suspensive effect. She challenged the assignment of the residence and the appellate court costs imposed on her.
The Cantonal Court justified setting the residence with the father on the grounds that the mother had moved from [U.] to [V.] without informing the father, had deregistered the child from the day-care in [U.] , and had registered the child for school and day-care in [V.] , thereby presenting the father with a fait accompli. The father had also moved to [V.] in order to secure childcare, had changed his job to reduce his employment to 80%, and wished to remain in [V.] . The current childcare arrangement, which works well (50/50, flats located close to each other, day-care and school nearby), was more likely to last with this arrangement. The mother had moreover stated herself that the child should complete her schooling in [V.] . Further considerations of the Cantonal Court concerned piano lessons on Thursday afternoons, an allegedly unproven cat allergy, and the settlement proposal of 5 January 2021.
The Cantonal Court imposed the court costs on the mother on the grounds that she had lost on all her applications.
Considerations
The Federal Supreme Court notes that this is a decision of the last cantonal instance in a non-pecuniary child matter, so the civil appeal is admissible (Art. 72 para. 1 and Art. 75 para. 1 FSCA). The factual findings of the lower court are binding unless they are arbitrary and the strict principle of stating grounds of complaint has been observed (Art. 105 para. 1, Art. 97 para. 1 and Art. 106 para. 2 FSCA). New facts and evidence are admissible only insofar as the contested decision gives cause for them (Art. 99 para. 1 FSCA); genuine novel facts (nova) are excluded. Moreover, complaints must, where possible, already have been raised before the lower court.
On the determination of residence, the Federal Supreme Court explains that the child's residence under alternating custody is, pursuant to Art. 25 para. 1 CC, which expressly regulates only sole custody, to be determined by the court or the KESB in the event of parental disagreement where custody is divided roughly equally. The mother's complaint that the care was not exactly equal (eight to six nights over two weeks) therefore misses the point; mathematically exact division is not required, and the night from Sunday to Monday is appropriately allocated given the mother's start of care on Monday morning.
The Federal Supreme Court finds no arbitrary reasoning in the decision. The Cantonal Court took the best interests of the child as the guiding principle and assessed alternating custody as being in the child's best interest. The reasoning did not rest on subjective impressions or fault, but on established facts: the mother's unilateral move to [V.] and the father's follow-up move to make alternating custody possible. This constitutes an objective and, on its own, sufficient reason.
The mother's arguments…