Tribunal fédéral (Swiss Federal Supreme Court)
Superior Appellate Court
Christian Herrmann, Luca Marazzi, Nicolas von Werdt
11 January 2019
Rights of Custody - Art. 3
Appeal dismissed, return ordered
Article 243 and following of the Chilean Codigo Civil (Chilean Civil Code)
ATF 136 III 353
One child wrongfully retained at age 8 – National of Chile – Unmarried parents – Father national of Chile – Mother national of Chile – Agreement that the “cuidado personal” is solely attributed to the mother, but in fact it is exercised by both – Child lived in Chile until 14 August 2017 – Application for return filed with the courts of Switzerland on 19 September 2018 – Return ordered – Main issue: Rights of custody – Even though formally they agreed that the mother has the sole “cuidado personal” in fact both of the parents exercise it and therefore after the agreed date of return to Chile the retention was wrongful.
The child, a girl, was eight years old at the time of the alleged wrongful retention in Switzerland.
The parents were not married and separated when the girl was about 18 months old. They lived in Chile for the first seven years of the girl’s life.
In autumn of 2016, the child’s mother asked the Chilean court for permission to leave the country (to Spain) for three years. During the proceedings, the parents agreed that the child could go with the mother to Switzerland for the following time periods: 14 August to 22 December 2017 and 5 January to 14 July 2018.
After having moved to Switzerland, the child spent her Christmas holidays with her father in Chile as well as the period from the 7 to the 21 April 2018. After 14 July 2018 the child stayed in Switzerland with the mother.
The father initiated 1980 Convention proceedings in Switzerland on 19 September 2018. On 27 November 2018 the High Court of the Canton of Schwyz (first instance in child abduction cases) ordered the return of the child. The mother filed an appeal on 29 November 2018 at the Swiss Federal Supreme Court, which confirmed the decision of the High Court of the Canton of Schwyz.
The father appealed the decision regarding the costs, which was the subject of a separate decision of the Swiss Federal Supreme Court 5A_997/2018 of 11 January 2019.
The mother’s appeal was dismissed, and the decision of the High Court of the Canton of Schwyz (first instance in child abduction cases) was confirmed. Return ordered, wrongful retention.
The Swiss Federal Supreme Court decided that, according to the agreement between the parents, the “cuidado personal” within the meaning of Articles 224 and 225 of the Chilean Civil Code is formally attributed solely to the mother. However, the parental agreement contains extensive rights of the father regarding contact and care towards the child (a weekend every fortnight; half of the holidays; one night during the week; accompanying the child to school daily), which fall within the concept of custody under the 1980 Convention. According to the Swiss Federal Supreme Court, this is especially the case since Article 229 para. 1 of the Chilean Civil Code emphasises the right and duty of the parent who does not formally have the “cuidado personal” to have a direct and regular relationship with the child. In any case, the father is, on the basis of the agreement, entitled to determine the residence of the child (with regard to emigration), which is governed by Article 3(1)(a) cum 5(a) of the Convention.
Author: Audrey Canova