– November 7, 2023

Equal treatment of spouses with joint custody

If joint custody of a child of unmarried but separated parents is determined by the court, the care times of the spouses with regard to custody do not necessarily have to be determined in a ratio of 50% to 50%.

In the present case (BGer 5A_463/2022 from May 22, 2023), it was decided that the child is under the joint care of both parents and custody was alternated between the mother and the father. This means that the child is cared for partly by the mother and partly by the father. However, it was disputed which parent would take on which share of care. The High Court had awarded the father a 40% share of care. In his appeal to the Federal Supreme Court, however, the father argued that both parents should be awarded half of the care.

If custody is not assigned to one parent alone, but alternating custody is provided for, each parent’s share of care must be determined. There is no clear order for this, rather it must be decided on a case-by-case basis at the discretion of the court.

As with all decisions relating to children’s issues, the best interests of the child are paramount. The court clarifies the circumstances and looks for a solution that meets the child’s needs. In a more recent judgment 5A_247/2021 of January 10, 2021, the Federal Supreme Court refused to determine a 50/50 division of custody between the parents and left it to the discretion of the court. It rejected a standardized approach, as this would contradict the consideration of the individual case.

The interests of the parents must be placed in the background – the best interests of the child are paramount. 

In summary, it can therefore be said that even in the case of alternating custody, there is no entitlement to equal rights for the parents if the childcare times are not allocated in a clear disproportion. If the difference in the disputed care times is small – as in our case in the ratio of 40% to 60% and not 50% to 50% as requested by the father – and the allocation was made on the basis of an objective consideration of the individual case, it cannot be demanded that there is absolute equality between the parents. 

If you have any questions in family law, our lawyers will be happy to advise you.