The Role of Judges in Swiss Federal Jurisprudence Regarding Shared Physical Custody

Court judgments must refer to the principle of the child’s best interests when determining children’s physical custody arrangements in parental separation cases. This paper explores whether the criteria against which judges evaluate the child’s best interests are in accordance with social sciences’ findings on children’s outcomes regarding physical custody arrangements. Empirical research has shown that, in general, shared physical custody (SPC) more often links to various indicators of children’s well-being than sole custody arrangements. However, it is unclear whether this association is a causal or selection effect, whether relationships (e.g., the quality of relationships between parents and between the child and each parent) are more important than the type of custody, and why this association does not hold for families with the lowest socioeconomic status (SES).
Given the evidence of various children’s outcomes according to custody arrangements, it is key to understand to what extent court judgments’ arguments are consistent with social science results and, when not, what they depend on. Schwarzer (2021) drew approximately thirty1 Swiss Federal Court (FC) judgments, randomly selected among all judgments from July 2014 to March 2021. The three main findings are that a) most judgments refer to social science research’s criteria on the child’s well-being but they fail to acknowledge the current state of research, the limitations and open questions in the field; b) judgments differ greatly in the extent to which they evaluate the parents’ preseparation situation or its potential development over time; and c) individual judges’ vast interpretative autonomy of criteria results in rather unpredictable decision-making on the final custody type. The scarce consideration of uncertainty on custody arrangements’ impacts in empirical research and judges’ great interpretative power produce a certain level of unequal treatment for families. FC generally supports the rulings made by the lower courts. For instance, it affirms both decisions that indicate a young child, due to their age, does not spend any overnight stays with their non-custodial parent2, as well as those3 that favor SPC for young children. We conclude with some suggestions on how to reduce this problem.

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