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Old 26.04.2017, 11:16
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parental rights in Switzerland for non Swiss parents

Hi I need your advice. me and my son we are holder of C permit (we both have not Swiss passport issued in EU), he is born out of Switzerland but we live here since 6 years (we moved out when my son was 9 months). His father is not Swiss and he went to the court to insure his rights (we are shortly moving from Lausanne to Basel). He does not agree that my son move out. By Swiss law I have entire parental rights, following the law of my sons birth place, both of the parent has equal rights (his father confirmed his paternity before my son was born and the name of his dad is mention on the certificate).
Question: which law is applicable since we are living in Switzerland since many years local law from the country we come from or Swiss law.
Even the judge couldn't answer this question. My lawyer informed me that since I was not married with his dad and he didn't request agreement- as a mother I have the entire authority parental- this was doubted in the court.
Thanks for your help

Last edited by 3Wishes; 26.04.2017 at 16:57. Reason: low = law (fixed error for clarity)
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Old 26.04.2017, 12:05
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Re: authority parental in Switzerland for no Swiss parents

In Swiss procedures, there has been a big shift over the past years.

The overriding principle about all matters to do with children is now: "Do what is best for the child." In this way, more emphasis is placed on the child's rights. The rights of the mother or of the father are less highly regarded than the rights of the child.

As far as I observe it, the protection of the child's rights is regarded as more important than any arrangements the parents may have made. This principle "do what is best for the child" seems to govern all decisions about children in Switzerland, even non-Swiss children who were born outside of Switzerland, and whose parents had paperwork about the child from abroad.

In Switzerland, children have a right to have know who their parents are, and to have contact with both parents.
The boy has a right to a relationship with his father, as he does with his mother.
It is the duty of both parents to ensure that the child can exercise his rights.
Therefore, it is the responsibility of the mother to enable her child to have contact with the father, just as it is the responsiblityof the father to enable his child to have contact with the mother.

"Parental authority" includes decisions about important matters of the child's life, e.g. where he goes to school, or lives, or whether he may leave the country.
More and more, in new divorce and Separation cases, the "parental authority" is granted to both parents. The reaons for this is, once again, to try to ensure that the child can exercise his right to both parents. In other words, it will be granted (or not) depending on what would be best for the child.

It is now also possible, under some conditions (which I do not know) for a parent who did not have "parental authority" before, to apply to the Court for "joint parental authority". This, too, will be considered on the basis of whether it is the best thing for the child.

"Residence" means where the child lives. The parent who holds "residence" takes everyday decisions (meals, clothing, bed-time) without consulting the other parent.
In some cases, "residence" is granted to both parents. This means that the child physically lives with one parent some of the time, and with the other the rest of the week or month.

If I understand your post correctly, your son is about 6 years old, and he lived with his father (with you) for only the first 9 months. Since then, he has always lived with you (alone?). Based on this, it is unlikely that a Court would decide that, now, suddenly, he should have to live with the father, not even part-time.

However, it seems to me that if you and your son move from Lausanne to Basel, you would be making it harder for the boy to exercise his rights to contact and a relationship with his father. Have you considered ways in which you could ensure that your son will, in fact, have just as much contact with his father as he now enjoys? For example, would you provide the transport back to Lausanne, when your son visits his father, and back to Basel afterwards?

Please remember that more time you spend in Court, fighting, the less money, time and energy you'll each have to spend on your son's wellbeling. The more reasonable and careful you can demonstrate yourself to be, the more likely you are to manage to reach a peaceful solution. That would be in the child's interests.

I would imagine that, if you can set out that your move to Basel will not endanger your son's rights to access to his father, you would have a much better chance of getting his permission to move.
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Old 26.04.2017, 12:08
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Re: authority parental in Switzerland for no Swiss parents

You should follow the advice of your lawyer and not expect complete strangers on a Forum to give you legal advice. I do know that you can live anywhere in Switzerland with your child, you do not need the permission of the other parent.

The child and the father have a legal right to see each other regularly. If you stop them meeting you can be taken back to court. You cannot impose your will on the relationship just because you no longer like or trust the father.

If you are worried about there being a danger to the child when meeting the father, you can ask for help. The Swiss social services offer accompanied visits, and an adult person is assigned to accompany the father when visiting his child. In extremely dangerous situations, they can visit at a safe place, under observation by an appointed professional person.
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Old 26.04.2017, 12:31
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Re: authority parental in Switzerland for no Swiss parents

Thanks for your input.
i am not searching the professional support here (I have a lawyer) just advice- I am sure there are some people with similar experiences.

the issue is not that his dad cant visit my son. I fully agree for that: 2x month plus half of public holiday and I put in my proposition of convention, which he declined orally during the session. The judge ask my lawyer to send it per post to him for review.
I never prevented my son to see his dad and in many situations I motivated them both to do it. About our move to Basel, dad of my child is concerned about additional expenses (ticket to Basel and back twice a month) therefore . Optionally he proposed to share the cost which i declined. He pays me 350/month for my son

Having full parental authority I wouldn't need to ask him for his approval to move and he has to inform me about leaving Switzerland with my son (the only think I am against is taking my son to his father country which is very dangerous and I would like to be informed each time he leaves Switzerland).
Thanks for your support
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Old 26.04.2017, 13:02
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Re: authority parental in Switzerland for no Swiss parents

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About our move to Basel, dad of my child is concerned about additional expenses (ticket to Basel and back twice a month) therefore . Optionally he proposed to share the cost which i declined.
If his only objection to you moving is the cost of the travel, just agree to pay for your son's travel to / from Lausanne. You'll spend that much and more on additional lawyer's fees to fight over it in court.
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Old 26.04.2017, 13:39
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Re: authority parental in Switzerland for no Swiss parents

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If his only objection to you moving is the cost of the travel, just agree to pay for your son's travel to / from Lausanne. You'll spend that much and more on additional lawyer's fees to fight over it in court.
LOL. If the son travels with his father or mother than we are talking about CHF 30 / year.
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Old 26.04.2017, 13:47
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Re: authority parental in Switzerland for no Swiss parents

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If his only objection to you moving is the cost of the travel, just agree to pay for your son's travel to / from Lausanne. You'll spend that much and more on additional lawyer's fees to fight over it in court.
Following this logic theoreticaly he could ask me to pay him pocket money for committing to see his son. It would be cheaper for me for sure.
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Old 26.04.2017, 14:24
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Re: authority parental in Switzerland for no Swiss parents

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Following this logic theoreticaly he could ask me to pay him pocket money for committing to see his son. It would be cheaper for me for sure.
You're missing the point. I would think that a parent who is, as you say, encouraging a healthy relationship between child and father would be more than happy to hop on a train, or drive, so he can see his dad twice a month. Considering it's you who wants to move out of the area, it should be you who makes the (really minimal) extra effort to make sure their relationship is not damaged by your decision to move. That would be in the best interest of the child.

From my perspective, if you offer to pay for transportation twice a month between the two homes, maybe you could ask for the father to pay for transportation on holidays etc. If you both agree and submit the agreement to the court, the question of pocket money or otherwise wouldn't be up for discussion. Or am I missing something?

Either way, I know it's hard to go through custody issues, but being the bigger person and showing as much kindness and generosity to the father of your child as you reasonably can, will pay off in dividends over the years.
i.e. less fighting between the parents, happier son who doesn't have to deal with being torn between arguing parents and/or having to choose sides, etc.
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Old 26.04.2017, 15:24
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Re: authority parental in Switzerland for no Swiss parents

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About our move to Basel, dad of my child is concerned about additional expenses (ticket to Basel and back twice a month) therefore . Optionally he proposed to share the cost which i declined. He pays me 350/month for my son
I assume this figure of CH350 was determined by law given that ye are already in court? I'm guessing that this is his share of a joint determination, do you have an independent income And who claims the child allowance??

If this really comes down to two adults arguing over who pays CH30 to CH60 a month, then all I can say is that I hope the judge sees it for what it is and protects the child.
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Old 26.04.2017, 15:51
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Re: authority parental in Switzerland for no Swiss parents

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I assume this figure of CH350 was determined by law given that ye are already in court? I'm guessing that this is his share of a joint determination, do you have an independent income And who claims the child allowance??

If this really comes down to two adults arguing over who pays CH30 to CH 60 a month, then all I can say is that I hope the judge sees it for what it is and protects the child.


We didn't have any agreement before, he just decided years ago that this is what he will pay and me being relaxed kindly agreed. He paid me with delays, discounts etc. Generally I don't want to fight for money but I feel abused by him since years and there are some limits. To see the whole picture you have to imagine that adult person over 40 y lives on his wife account, working 40 % only. Since I live in Switzerland I am full time working mother but last year I have lost my job in Lausanne and didn't find anything dunning 7 months in Geneva Region so I am forced to move out since there is much more opportunities in my branch.
All the court started because he want to deduct child allowance from his tax as I never protect his son to see papa.
I made him aware about my plans of changing the place of residency even I started applying.


I appreciate your suggestion but sometimes with him I have a feeling that the more I agree, the more he ask Therefore I think I need to stop going forward and think about myself.
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Old 26.04.2017, 17:10
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Re: authority parental in Switzerland for no Swiss parents

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I do know that you can live anywhere in Switzerland with your child, you do not need the permission of the other parent.
That's not always true.

I know of a case where the mother moved from Ticino to the German speaking part, and the court decided that she had to leave the child in Ticino with the father as it was in the child's best interest.

Tom
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Old 26.04.2017, 17:51
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Re: authority parental in Switzerland for no Swiss parents

If the mom has full custody and needs to move for her new job, court will hardly disagree with that considering dad only works 40% and is unreliable with child support payments. The access to the child is not prevented, the child needs most of all be provided for.
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Old 26.04.2017, 18:49
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Re: authority parental in Switzerland for no Swiss parents

The following might be obvious, but it's better to say it, than not to say it.

We don't know any of your nationalities, so I will have to make a broad statement: do not ever give your son's passport or 'C' permit to your son or to his father.

The father may not like this, but you cannot risk him taking the child out of Switzerland. If he wants to fight you on this, let him take you back to court, where you can tell the court why you do not want your son to leave Switzerland with the father.
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Old 26.04.2017, 19:28
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Re: authority parental in Switzerland for no Swiss parents

And you should check whether you are entitled to more money for child maintenance. I know he's just decided the figure and you haven't argued it, but if you'd been married and divorced the court would decide what maintenance he pays.

https://www.ch.ch/en/divorce-and-mai...contributions/

It might be worth checking with your lawyer/the court whether that would be the same since you weren't married.
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Old 26.04.2017, 19:31
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Re: authority parental in Switzerland for no Swiss parents

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...last year I have lost my job in Lausanne and didn't find anything dunning 7 months in Geneva Region so I am forced to move out since there is much more opportunities in my branch.
Do you already have a job, or a promise of a job (with a contract) in Basel? Or are you now making enquiries, early, as you try to plan what to do?

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All the court started because he want to deduct child allowance from his tax as I never protect his son to see papa.
I'm not sure I understand this part. It may be because of the way you use English, so would you please explain more? Thanks.

When you say you "never protect his son to see papa", do you mean that you are not making it possible? It is your duty to protect your child. This includes making sure the son has contact with his father. Unless the father is dangerous (and that's a completely different story), you have a duty to enable your son to see his father.

As far as I understand it, there are legally two issues, and they are treated as separate.
One is the child's right to maintain contact with both parents.
The other is the money: which parent pays how much to which parent, and the child allowance, and taxes.

Even if your son's father does not fulfil his financial responsibilities... this has nothing to do with your son's right to see his father.

Please don't mix up these two things. Many fathers who feel they do not see their children as often as they wish to, stop paying the maintenance/allimony/child support to the mother. They make the mistake of thinking: "If she won't let me see the child, then I won't pay her any longer!" That's not okay.
This mistake is just as bad the other way round. The mother should not be thinking: "If he won't pay me enough, or on time, then I won't let him see the child!" That's also not okay.

The money paid is for the living costs of the child. It is not a payment to be allowed to see the child.
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Old 26.04.2017, 19:34
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Re: authority parental in Switzerland for no Swiss parents

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And you should check whether you are entitled to more money for child maintenance. I know he's just decided the figure and you haven't argued it, but if you'd been married and divorced the court would decide what maintenance he pays.
Or less.

I know someone who child support from his ex.

Tom
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Old 28.04.2017, 12:48
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Re: authority parental in Switzerland for no Swiss parents

His official income is 1500 fr a month So I dont hope for more
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Old 28.04.2017, 12:50
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Re: authority parental in Switzerland for no Swiss parents

yes, I have a very good job and I earn six number annual salary. I meant that I never prevented them to keep in contact, my son visited his father and his wife regularly, vacation etc
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Old 28.04.2017, 13:08
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Re: authority parental in Switzerland for no Swiss parents

The current status is that after the first audition, my lawyer sent him draft of proposed convention mentioning mutual agreement on regular contact the son and father (his father needs to pick my son up and bring him back by himself). we agreed for unlimited amounts of calls. We mentioned as well our disagreement with regards to traveling with my son to the origin country of his father (with high rate of criminality and the risk of not returning my son etc). From this same reason(the risk of not returning my son) I am also asking about informing me and getting my agreement in case of leaving Switzerland with my son. I am sure he will object it (which does not make sense by logic as with his incomes he cant afford traveling far -the ticket cost +800 chf, and in case of leaving Switzerland he needs to ask me anyway for the ID card. I guess that he will request inserting in the convention the amount of child support he want to pay. We have one month to find the agreement otherwise he needs to apply to another instance of the court (he is leaving next week for 3 weeks holiday to Jamaica- so I am not sure we will be able to avoid the next round.
Thanks for all your suggestions and information.
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Old 28.04.2017, 13:29
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Re: authority parental in Switzerland for no Swiss parents

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About our move to Basel, dad of my child is concerned about additional expenses (ticket to Basel and back twice a month) therefore . Optionally he proposed to share the cost which i declined. He pays me 350/month for my son
For the last 5+ years I have been sharing the cost of my daughter visiting her father with him. We also skype twice a week. This is important as my ex still lives in the UK, so the travel is not every fortnight, but every holiday. It is very important that both parents have an emotional imput into their child's life, as the Swiss courts recognise that. If you are putting your child first you will share the cost of the train tickets, still cheaper than flying to the UK and back (6 flights each trip when she was too young to fly as unaccompanied minor). He pays me 0/month for my daughter, not that it makes a difference, money and access are two separate issues and should always be treated as such.
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