Nicolas gives some practical advice and answers your questions concerning family law and visiting rights of children during the present crisis.
Are visiting rights impacted by the measures taken by Swiss authorities to fight the CORONAVIRUS pandemic?
As of this day, no measures restricting usual visiting rights have been taken by the Swiss authorities.
Therefore, if you have been granted alternate custody rights or regular visiting rights, no restrictions have been imposed to this day.
In Geneva however, any visiting rights for children placed in care as well as supervised visiting rights have been cancelled.
Visiting rights must of course be exercised in compliance with rules decided by the government.
What should I do if the parent that holds parental custody refuses to let me have my children on a regular visit?
First, try to obtain from the custodian parent a written explanation (this prove to be useful in case of litigation). Should you have contracted the illness or if you are living with someone who has contracted the virus, it is very likely that these reasons will be considered as valid.
Should the above not be the case and your attempt to settle this problem amicably fails, you should consider the following options:
a) Call the police
Ineffective: the police is not the proper authority to settle this kind of problem and will most likely not intervene.
b) Inform the child protection service
It may be useful to inform the child protection service (in Geneva SPMI), particularly if they already have a file open or if they have been given curatorship. However, in the situation of usual visiting rights, it is quite unlikely that SPMI will intervene rapidly.
c) File superprovisional measures
If the visiting rights are denied by a parent despite the existence of preexisting agreements, it is possible to address the case to a Court (in Geneva in principle the TPAE).
You will need to file a request for superprovisional measures concerning the obligation for the custodian parent to hand over the child at the agreed time and place. The decision can be combined with criminal sanctions should this not be done by the custodian parent.
Such measures are in principle ordered very rapidly if you can prove the urgent nature of the request. It must be noted that Courts are working with reduced staff at the moment and will only take measures considered to be absolutely necessary.
However, such a request should be treated by the Court.
d) File a Criminal complaint
Not impossible. However, as a rule, the purpose of a criminal complaint is to sanction the author of an illegal act and not to regulate visitations rights, which are of the competence of a civil judge.
The offense is defined by article 220 of the Swiss Criminal Code. Such an offense, which concerns primarily the abduction of a minor, allows according to case law to sanction a parent who does not hand the child in accordance with the terms agreed by the competent authority, on the condition that the other parent also holds parental right.
Criminal proceedings usually take a long time, even more so in this period when the Prosecution Office is working with reduced staff.
It is essentially the deterrent effect of criminal proceedings that could prove useful to force the reluctant parent to comply with the visiting rights that have been settled.
The parent who does not have custody has contracted the virus but insists that I let him have our child, what should I do?
In such a case, the refusal would be justified as it would be aimed at protecting the child’s best interest.
Swiss law allows the restriction or the suppression of visiting rights to the non-custodian parent when one of the conditions set in art. 274 al. 2 CC is realized, i.e. if personal relations hinder the development of the child, if the father or the mother violate their obligations, if they do not take proper care of the child or for any other just causes.
Case law recognizes that if a parent suffers from a contagious illness, visiting rights can be suspended if there are no other means to protect the health of the child.
There are two alternatives should the parent insist:
The first is to do nothing and refuse to comply, with a risk that the non-custodian parent will file superprovisional measures to the Court as mentioned above.
The second alternative is to file superprovisional measures to suspend the visiting rights of the non-custodian parent because of illness. Such measures are decided on the basis of supporting evidence to be presented to the judge: it will be necessary to prove that (1) the non-custodian parent is affected by the virus and (2) that he/she nevertheless insists on exercising his/her visiting rights.
03/04/20 - Nicolas Mossaz, founder of Legal Expat and partner at the law firm Ochsner & Associés
For more specific advice, you can contact Nicolas at nmossaz@oalegal.ch.
