Facts

The parties are the parents of [C.] , born in 2014, and [D.] , born in 2016. Since the separation in 2017, the mother (appellant) has lived with the children in Ticino, and the father (respondent) in Valais. In the protection of marriage proceedings, the parties concluded a settlement on 2 February 2018, including on the right of access.

Due to problems in exercising access, the District Court of Leuk and Westlich-Raron ordered a child psychological expert report (issued on 14 September 2018, supplemented on 18 October 2018). By decision of 23 November 2018, the District Court amended the arrangement: the father was to visit the children twice a month on a Saturday or Sunday for 6 hours and once a month on a school day for 4 hours at the mother's place of residence, initially supervised (December 2018 to November 2019), then unsupervised (until November 2020), and from December 2020 on two weekends per month from Friday 6 p.m. to Sunday 6 p.m.

On the father's appeal, the Cantonal Court of Valais (judgment of 31 January 2019, C1 18 283, C2 18 57) modified the right of access: the father may visit the children every second weekend on Saturday from 11 a.m. to 5 p.m. and on Sunday from 9 a.m. to 3 p.m. at the children's place of residence, supervised until November 2019, unsupervised until November 2020; from December 2020 on every second weekend from Friday 6 p.m. to Sunday 6 p.m., alternating between the children's and the father's place of residence. In addition, a 5-week holiday access right was established. The mother's request for legal aid for the appeal proceedings was dismissed.

The mother lodged a civil law appeal with the Federal Supreme Court and essentially requested an access arrangement according to the District Court decision or the expert report (division of the visiting time between each child, visits three times a month, 3-week holiday access right), that the costs of the proceedings be imposed on the father, alternatively legal aid, and for the federal proceedings a provisio ad litem of CHF 3,000.--, subsidiarily legal aid. No responses were obtained, but the cantonal files were requested.

Considerations

This is a final cantonal decision in protection of marriage proceedings on provisional measures (Art. 72 para. 1, Art. 75 para. 1, Art. 90, Art. 98 FSCA). The strict principle of complaints therefore applies (Art. 106 para. 2 FSCA), so only the violation of constitutional rights, in particular arbitrariness, may be asserted.

According to settled case law, arbitrariness does not exist merely because another solution would also be tenable or preferable; the decision must be manifestly untenable and also unconstitutional in its result. A court-appointed expert report is subject to free evaluation of evidence (Art. 157 CPC); on technical questions, the court may depart from it only for compelling reasons and must state them.

The mother argued that the Cantonal Court deviated from the expert report without reason, in particular regarding the division of visiting time between each child, the number of visiting days, the holiday access right and the duty to make the maternal home available (violation of Art. 13 and Art. 29 Cst.). The Federal Supreme Court denied arbitrariness: the Cantonal Court had taken into account [C.] 's attention needs and the father's being overwhelmed; during supervised visits the father is not alone, so no additional division is necessary. A division within the mother's living space would moreover be practically hardly feasible and artificial. Bundling the visits into one weekend corresponds to the father's long travel distance and prepares the weekend access provided from December 2020. The 5-week holiday access right is a question of discretion; it takes effect only from 2020, extends to less than half of the school holidays, and is factually justified by the great spatial distance and the different language regions. The Federal Supreme Court found no violation of the duty to state reasons, as the guiding considerations follow from the decision.

The order that the right of access be exercised in the maternal home violates neither arbitrariness nor Art. 13 Cst.: it…