-
» Excellent «
A topic with which our lawyers for family law in St. Gallen, Zurich or Frauenfeld are regularly confronted is the withdrawal of parental custody. It represents the most severe severance of the bond between a parent and child and is therefore considered the ultima ratio. The withdrawal of parental custody is executed ex officio according to Art. 311 CPC or with the consent of the parents according to Art. 312 CPC.
Reasons for the official withdrawal of custody are the lack of educational suitability of the parents or a gross breach of duty. Lack of suitability of parents is determined according to Art. 311 para. 1 item 1 CPC, because of reasons that prevent a dutiful exercise of parental care, such as inexperience, illness, infirmity, absence, violence. In addition to one’s own incapacity, the option of the remaining care being subsidized by a contribution of external care must also not be a possibility. This applies, for example, in the case of long prison sentences (BGE 119 II 9), severe alcohol addiction or mental illness. A sufficiently serious breach of duty which leads to the withdrawal of parental care is measured according to the parental duties according to Art. 301-306 CPC, including the duty to pay child support and the visitation rights of the child. The extent to which the duties have concretely grossly violated must be determined in each individual case and depends significantly on the situation and the child itself.
Withdrawal of custody by the Swiss child and adult protection services (KESB) with the consent of the parents also requires the fulfillment of the requirements set out in Art. 311 of the Swiss Civil Code. Since parental care is regarded as indispensable in Switzerland, the authority must examine the prerequisites as in the case of an ex officio withdrawal. Art. 312 CC provides for two variants: either, if the parents request it for important reasons, as those found in Art. 311 para.1 item 1 CC, or the parents have consented to the child’s adoption by (an undisclosed) third party.
Withdrawal of parental custody is a loss of all determinative parental competences. However, the measure does not necessarily have to affect the mother and father. Thus, in the case of joint custody, parental custody can also be withdrawn only from one parent. However, if the aim is to continue living in the same household, the parent with custody must be able to assert themselves and remedy the deficiencies caused by the other parent. If custody is withdrawn from both, a guardian is assigned to the child.
If there are several children, parental care is usually withdrawn from all children. This is because, in principle, the cause of a custodial withdrawal is generally the inability of the parents to raise the children.
The withdrawal of parental care is a serious interference in the relationship between the parents and the child. In order to initiate something against the measures, those affected face great hurdles. Our lawyers specializing in family law in Zurich, St. Gallen or Frauenfeld can help you navigate this topic.