Child Relocation 2023 Comparisons

A parent’s relocation shall never be prohibited, in view of this parent’s right to respect his or her freedom of movement. If the other parent who has joint parental responsibility refuses the child’s relocation, the court or the child protection authority can authorise or refuse the change of the child’s habitual residence.

According to case law, the relevant test to authorise a child’s relocation with one parent is the welfare of the child. The rights of the child’s parents are superseded by their child’s welfare, which must be granted paramount importance, as a matter of public policy. To ascertain what the child’s welfare commands, it is necessary to refer to the care model concretely put in place before the move and to examine whether or not it will (or should) be modified by the move.

If both parents have parental authority, the situation at hand is considered in more depth. If the child’s daily care is shared between the parents, the situation shall be examined even more finely. This means that an analysis shall be made of:

• the geographical distance between the two parents' homes created by the intended move;
• each parent’s possibility of taking care of the child personally, before and after the move;
• the capacity and intention of each parent to favour contacts with the other parent;
• the respective educational capacities of the parents and their ability to co-operate harmoniously, having their child’s best interest in mind – ie, their concrete ability and intention to continue to exercise parental responsibility jointly notwithstanding the move;
• the stability that would be granted to the child if the prior situation were to be maintained (eg, inasmuch as shared care could continue);
• time spent by each parent with the child before and after the move;
• the quality of both parent-child personal relationships;
• the age of the child, and his or her opinion about the move, even if the child is not capable of judgement;
• the centre of the child’s life (eg, if his or her primary care giver has close ties with another country, these close ties shall also be attributed to the child if the child is little) and whether the child has siblings or belongs to a social circle (generally after the age of 12);
• the opinion or position of other children and their need to live together or their tolerance to a separate household, depending on their age;
• the family and economic environment, and the means at hand to finance physical contacts;
• the language spoken at the present and future home;
• the schooling put in place, before and after the move (even though no enrolment can take place without the other parent’s consent);
• the child’s health needs;
• the existing or deemed guarantees of the harmonious physical, psychological and intellectual development of the child; and
• the possibility to ensure the stability of the child's relationships with both parents and the extended family if it is a close-knit family.

All these criteria are inter-dependent from one another, with none having precedence over the others, if parents with joint parental responsibility also have the shared care of the child. The question to be answered is whether the child’s welfare is better protected if relocation is granted or if the child stays at his or her habitual place of residence (even if it means a change of care). If the relocating parent is the primary care provider, chances are that, if the child is little, relocation shall be authorised more easily, as the child shall be deemed to have closer ties with his or her primary care giver than with his or her social environment.

If the relocating parent has sole parental responsibility, the child’s relocation should be granted, provided necessary amendments are made to the existing order to ensure that the child has contacts with the left-behind parent and that maintenance covers his or her needs.

The child's wishes and feelings about the move shall be considered by the authorities. According to the law, the child should always be interviewed, but the Swiss supreme court’s guidelines enforce a compulsory audition once the child reaches the age of six. Each child has the right to express his or her opinion in any procedure concerning them, insofar as he or she is able to form their own opinion, which corresponds to the notion of ability of judgement. The child’s needs can also be expressed before the authority by a deputy appointed to the child, if said authority feels it is necessary – eg, when the parents’ submissions about their child’s welfare are very different, or when their joint submissions do not appear to serve the child’s best interests.

According to case law, more weight should be granted to a child's opinion as soon as they reach the age of 12, since they are deemed to be capable of judgement at that age, and since their need not to be separated from their peers grows at that time. However, less weight is given to a child's opinion if said child is obviously immersed in a conflict of loyalty between his or her parents. The younger the child, the higher the assumption shall be that the child’s best interests are served if he or she stays with or follows the primary care giver.

When a family is composed of numerous children of the same parents, in principle children should not be separated, and the move shall be authorised or refused for all of them. However, if a big age gap exists between some of the children, Supreme court case law has confirmed the authorisation granted to the relocation of the smaller children only with the parent intending to move, while the older children were to stay with the left-behind parent, so as not to cut their important relationships with their peers.

Neither the court nor the child protection authority needs to investigate the motivation of the parent who intends to relocate, in view of this parent’s right to have his or her freedom of movement respected. However, if the move is obviously intended to cut a child from his or her other parent, it shall not be authorised. This obvious intention needs to be proved.

In the presence of high conflicting parents and of a child who is obviously immersed in a conflict of loyalty between his or her parents, in circumstances where no sound reason is pleaded to justify the move, both the civil court and the child protection authorities shall tend to suspect it; an in-depth investigation will be made and relocation shall be denied. The sustainability of parent-child relationships is granted paramount importance in the order to be handed down: as a matter of principle, these relationships are deemed necessary to the formation of the child’s identity.

According to case law, in Switzerland parents must do their utmost to be financially independent, especially if they are not married to each other or after they have divorced. Moreover, marriage is deemed to be a long-term engagement with a moral and financial responsibility towards one another. Therefore, if the reason behind the move is a professional opportunity offering good financial prospects, or if it is related to a marriage or a long-term relationship (eg, a wish to continue to live together; professional reasons of the spouse or of the live-in partner), relocation has better chances of being authorised, provided that the parent intending to move is the child’s primary care giver.

However, a concrete parenting plan ensuring extensive contact for the child with the left-behind parent and providing ways of exercising joint parental responsibility notwithstanding the distance must be presented: the child protection authorities and the civil court must be convinced of the moving parent’s authentic intention to ensure regular contact for the child with the other parent and to continue to co-operate to ensure the child’s welfare and joint education. The move needs to provide the child with a sustainable environment safeguarding his or her best interests, and contact with his or her left-behind parent is deemed to correspond to these interests.

Under present case law, the following particular grounds for relocation refusal have been presented:

• a proved wish of the parent intending to move to cut the other parent from the child or to prevent the exercise of joint parental authority post-relocation (eg, a child whose mother wanted to relocate to Qatar to live in a family community with her new husband, in circumstances where the conflict erupted only when she imparted her wish to do so to the father of the child, who would have no way to continue to exercise joint parental responsibility over the child after relocation);
• a lack of child’s stability at his or her new place of living (lack of adequate schooling, healthcare or general support);
• a lack of post-relocation stability of the parent who intends to move and therefore a deemed lack of sustainability of the proposed child’s new environment (eg, no financial means and no support, in a country where the spoken language is not mastered by this parent; a new short-lived relationship with this parent’s partner, providing no support and no guarantee of sustainability, etc); and
• no economic ground for the move, no prospect in the new country or no solid reasons for the move (eg, no wish to return to a home country or to join a family, nor to move in with a live-in partner, or no professional opportunity offering a career advancement), which makes the authorities suspect that the goal of the parent intending to move is to cut the child from the other parent's life, and therefore to judge that this parent’s ability to tolerate the child’s relationship to the other parent is low, and hence that his or her parenting capacity is non-existent.

The costs of an application for relocation depend on whether a civil judge or a child protection authority has jurisdiction over the matter. In Switzerland, jurisdictions are organised by the cantons. Proceedings before the child protection authority are of an administrative – and not contentious – nature. This means that, generally, each parent pays for his or her own lawyers’ costs (if they cannot get legal aid), and that proceedings may be totally or partially gratuitous or subject to a fee, the amount of which depends on each canton and on the efforts necessitated by the proceedings. If, for example, a psychological forensic report is ordered to ascertain what the child’s welfare commands, its cost should be borne by the parents.

As soon as the civil court has jurisdiction, however, proceedings become contentious and the party losing the case might have to contribute to the other party’s lawyers’ costs, and to the court’s costs. The latter are dependent on the litigation value, which is determined by money matters on which the parents disagree (generally they are proportionate to a multiple of child maintenance).

Generally, judges use their power of discretion in family matters to order that the court’s costs are shared equally between parents, and that each party pays his or her own lawyers’ costs. If legal aid is granted, the cantons determine whether there is a duty to reimburse it partially or in full. Generally, legal aid is not granted if the pleading party’s submissions have little chance of prospering. Mediation costs can also be paid by legal aid to a certain extent, determined by the cantons, if the parents are urged to resort to mediation to settle their differences.

If an order is hoped for, applications for relocation tend to take a long time before they are determined. In Geneva, as well as in other cantons of Switzerland, both the civil courts and the child protection authority tend to urge parents to resort to mediation to sort out their divergence. During mediation, proceedings are stayed. If no agreement is reached in mediation, a social evaluation report is usually ordered. Social services are overloaded with work in general, and four to six months tend to elapse before a report is handed down, during which time proceedings are stayed and an interim order may freeze the situation “as is”, preventing the move.

Thereafter, the length of proceedings depends on the bitterness of the parents’ conflict: if a parental war is raging, a (lengthy) psychological forensic report is likely to be ordered, and the matter might take up to two years to be resolved, if not more. Unmarried parents therefore tend to ask for a relocation order by way of interim proceedings to hasten the result. If no financial conflict exists and if, therefore, the child protection authority has jurisdiction over the case, the time taken to determine this application with an urgent interim order shall depend on whether this authority is a tribunal or a sheer administration. If the cantons have provided that this authority is a tribunal, an enforceable order can be obtained in a matter of months. If it is not (and this is generally the case in the German-speaking part of Switzerland), the unmarried parent wishing to relocate shall have to wait for an order of the supervising body of the child protection authority to have it enforced.

Interim relocation orders are more difficult to get with married or divorced parents, or with unmarried parents who litigate about financial matters relating to the relocation: case law does not allow civil courts to settle a legal point ahead of proceedings on the merits, since the latter would become pointless if this contentious point (the child’s welfare, which includes child support) is settled by way of summary proceedings, based on prima facie evidence. Therefore, relocation civil proceedings can take up to one year to be determined, and sometimes much longer if appeals are lodged up to the Supreme Court.

If the parent wishing to relocate is the primary care provider for the child, the relevant authority shall tend to consider that the child’s welfare is better protected if the child relocates with the primary care giver, provided that this parent can give similar care to the child after relocation and that the move does not endanger the child’s welfare. If, however, the child is aged 12 or more and resents the intended relocation as it would deprive him or her of his or her relationships with his or her social environment, a special weight shall be granted to the child’s opinion, provided it is not influenced by a conflict of loyalty between his or her parents.