Dear all,

A non-Swiss friend is in need of advice that she can trust regarding separation from her Swiss husband. This is quite a desperate situation for her as she doesn't really trust/feel she is getting the full picture from her current lawyer.

Quick background:
She arrived with her husband and 2 children about 1.5 years ago.
She and her husband separated September 2011.
She is in the house and the kids live with her, and husband sees them regularly.
Her B-permit expires in April 2012.
There is a legal hearing relating to pension (I think?) in a few weeks.

She is concerned that the hearing may evolve into something bigger, leading to her being kicked out of the country, losing custody of kids, other scenarios.

She has consulted another lawyer who recommended that she doesn't change legal advisors at this time because of the close expiration of her B-permit.

She has been settling the kids in school, taking French lessons and is looking for work (not easy), and would like to stay in Switzerland.

The problem is that she doesn't know the legal situation for people like her and would really like to obtain some advise from a trusted person.
Can anyone help/provide and information source please? She really is feeling quite desperate about the whole situation.

Thank you in advance for all comments and ideas.

Best wishes,
Debs

I am not a lawyer, but..

If she is a good mother and there is no reason for taking the kids away from her (alcohol, drugs, etc), also if the father see the kids regularly, migration will see clear reasons for her to stay in the country as the father has the right to see the kids.

Im separated since oct 2010 and when we got separated migration asked him if he had a relation with the kids, at the time he responded with a letter stating that he would like to continue being in touch with his kids and that was enough. Every case is different, but that was mine.

I doubt they will take away the kids just like that and kick her out, and they wont kick out a swiss kid just because the mother lost her permit. It would really help if the swiss spuose and your friend are somehow civilized in their separation. That makes all easier.

best of luck!


edit. first post, member since jul 2010, welcome to the forum

I don't have kids but I had a messy permit situation at one point in time, so I know the legislation well. The Swiss can and have kicked out Swiss national children when the custodial parent no longer had the right to stay here. Your friend hasn't technically been here long enough to keep her B permit outright and the BfM doesn't always grant the right to stay to custodial parents. It depends on a lot of factors:

1. where she is from (sad but true)
2. how old are the kids (if the kids are school age this has a higher success rate than infants or adolescents) and how well they are doing in school, including and especially language-wise vis-a-vis how well they did in school in the former country.
3. how often the dad sees the kid. If the dad is truly an interested parent then they take this very seriously and are more likely to protect his access to the children by making sure everyone stays in the country. If the swiss dad wants nothing to do with the kids then there is no reason to stay, supposedly.
4. to a lesser extent, her ability to get into the job market and overall financial situation post divorce (e.g. the risks of her going on welfare or not being able to work due to having a small infant or younger kids)

I'm not trying to create a doomsday scenario, and her chances are high if her kids are school age that she should be able to keep her permit as a custodial parent (since moms usually get custody here). But it isn't a given so it is good to be aware and especially document the eff out of when and how the dad visits. There are a lot of cases to read up on on www.bger.ch and www.jurisprudence.ch that show the for and against in these messy permit divorce with kids cases.

I found this link in English, hope it helps, I cannot see it answers your exact question but it goes very near

http://www.binational.ch/en/fragen/kinder.html

Custody

Parents have joint custody if they are married.
According to Swiss law, if the parents of the child are not married, the mother generally has sole custody even if paternity has been determined and recognised, and the parents are living together. Since 01.01.2000, however, there has been the possibility of applying for joint parental custody at the guardianship authority (ZGB art. 298a para. 1).

If the parents separate, parental care is allocated. Parents who live separately generally still have joint custody - as long as they are married.

In the case of divorce, custody is determined by the court. According to the new divorce law, it is possible to apply for joint custody from the court if certain preconditions have been met (ZGB art. 133, para. 1-3).
After a divorce, the parent with custody has the right to decide on where the child lives, i.e. a foreign parent with custody can, for example, return to his/her country with the children

I am sorry but how is this related to the question? This only says that the parent with custody has the right to decide whether they'd like to stay or leave the country - but that is only valid if this parent is officially allowed to be residing in Switzerland.

The same website says though that in case of a divorce a B permit will be extended if
- the marriage has lasted at least 3 yrs
- if integration into the society has been successful
- if there are other important reasons for the foreign parent to stay in Switzerland. They don't specify but I'd say children are an important reason.
Your friend can call the local civil court though to get answers to her questions - and to be honest, if she doesn't trust her lawyer she should try and get a new one, especially if there are kids involved it is crucial she's aware of all details.

Should the 'trusted person' not be a lawyer who can provide her with the correct information.
The problem with coming onto a forum and asking is that you will no doubt be given various different 'snipets' of info which can be confusing and in some cases could be completely wrong.
In my opinion in situation likes this your friend should only seek advice from a professional lawyer.

I found this about separations and divorces (same source as above, but different topic.
http://www.binational.ch/en/fragen/trennung.html

And here is something about the law:
http://www.umbricht.ch/pdf/SwissPIL.pdf

Hope it helps

I apologize if my post was not of help, and glad that the linked helped to find some light in having the issue clarified.

I got touched by the topic, and for that I tried hopelessly today to call my Gemeinde which is located in Canton Bern - unexpectedly the lady was very helpful however she told me that what she is saying cannot be taken for granted, she is just thinking with me

The lady said that the 3 year issue works in some cantons and may not work in others due to different reasons, it is not about that the law is not common in all cantons but it is because there are some restrictions when applying it.

I was told that Switzerland and the Swiss law is against preventing children from living with their parents, which can be a very good argument here - Father has to play role here, because if the mother took the children away, they will miss seeing their father on frequent basis and vise versa if the mother leaves.

So I was told if the mother could together with the children and the father write a letter "by a professional layer" to the immigration office (she said this can be done via the Gemenide also) - then the chances of her stay will be good.

If the father is not of help here, and the children could prove that they cannot leave Switzerland (seems to be difficult to find a clue for that) then this means if the mother leaves the country she will be forced to be away from her children which is against the law.

So as summary, options are

1) to be lucky and stay by law due to her marriage period was more than 3 years
2) to find an argument that both mother and father should stay in the same country so they can both see the children
3) to find a clue that the children cannot leave Switzerland and then she cannot leave them

All the best of luck, I pray that her issue gets solves the way that she wants.