Can eheschutz be bad?

Hi,

I am in the middle of a fairly grim divorce. We are both non Swiss and both want custody of our two kids (age: 3 and 5) but I do unfortunately not want to stay in Switzerland. My husband is on anti depressants (not directly related to divorce) and therefore cold and agressive.

We have been up and down for 8 months now and he has been unable to decide what he wants with his life and with mine (as he has the right to ask the kids to remain in schweiz and I am not leaving without them)!

Now he is in the process of preparing an "Eheschutz" to be able to move out. In theory the eheschutz seems ok. But I am worried his intentions are not innocent, are there any well know (or less known) way that signing an eheschutz could be bad for me or benefit my husband? Especially in the future

Any info welcome. I do have a lawyer but would love for some input before I see him.

Lisa

It's a court case. For people who are not able to sort out all the details amongst themselves and/or where one of the two doesn't want to get divorced (in that case there is a waiting period of 2 years).

I see no problem in that for you. On the contrary, the court will make sure, things are fair and the best solution is found for the children (Obhut = care as custody stays with both partners during this separation).

But it costs money. You will need a lawyer unless you have a very good grasp of the Swiss marital law, which I suspect you don't have.

You say you are in Darmstadt? Is that where you want to go back to? Do you speak German? Here is some information (it's about Aargau but basically it is valid for Switzerland). She assumes domestic abuse in this paper but "Eheschutzmassnahmen" is not only for such.

No, not Darmstadt. I am swedish and want to move back to sweden. I Speak some german.

I am of course worried about the costs involved in taking the case to court. Do you have any feeling for how much it would be? Also lawyers tell me I have a good chance of winning but of course there are no guarantees...

With regard to custody, Swiss law distinguishes between "parental authority" and "residence". Parental authority includes taking the important decisions about a child such as schooling, health matters, travel, special training in sports. Residence means where the child lives.

While the parents are married, they automatically have shared parental authority . It is now the norm to uphold shared parental authority beyond divorce. The idea that one parent "wins" full custody, to the exclusion of the other parent, is considered out-dated.

The parent with whom the child resides takes small decisions without having to consult the other parent, such as bed-time, when to do homework, when to brush teeth, what to eat.

Even residence can be shared , with the children living with one of the parents for half the time and with the other parent the other half of the time. This is not yet the norm, but can be awarded in some cases, especially if both parents are actively interested in taking care of the children.

In all cases, the guiding principle for the judge's decision is "the best interests of the children", and it is generally considered to be in their best interests to have free access to each parent. Of course, there are bitter exceptions, of which there are some threads on this forum, in which one parent, and sometimes even the children themselves, end up fighting just to be allowed proper parent-child time. The child, though, has a right to be able maintain a relationship, easily, with both parents.

Given all this, it is often not possible for one parent to take the children out of Switzerland, or at least not without the permission of the other parent. This even applies to moving, within Switzerland, to the other side of the country.

The reasoning is that removing the child so would inhibit the child's rightful access to both parents, and that the parent with whom the child does not reside (if no shared residence) would, by the child living far away, be inhibited in his/her exercising parental authority.

As to lawyer's fees: the more you and your husband can agree on the terms of your divorce, both with regard to un-hooking your finances from each other, and in terms of the care of the children, the less there will be to fight about, and the lower the lawyer's fees will be. Then you can spend the money you've saved on lawyer's fees, on the children.

In this thread, https://www.englishforum.ch/housing-...t-anymore.html , I posted some suggestions to keep the lawyer's fees low.

General info:

https://www.ch.ch/en/divorce/

https://www.ch.ch/en/divorce-parental-authority

You also need to check your residency/permit situation: https://www.ch.ch/en/right-to-reside...th-or-divorce/

This is a condensed version (in German) of the main points about Eheschutz.

https://www.ehescheidung.ch/trennung...atte/eheschutz

Here (in German) is an article in the Beobachter, a reputable magazine reporting on social issues.

https://www.beobachter.ch/familie/tr...ind-auswandern

It links to two Swiss Supreme Court judgments, one in which the mother was not permitted to take her minor children away from Switzerland and their father (though she could have left alone) and the other in which she was given permission to take the children. Both judgments emphasise that to stay or to go must be decided according to what would be in the best interests for the child.