The Federal Supreme Court clarifies the scope of the right to personal relations with the child in favor of a third party
Article 273, paragraph 1 of the Swiss Civil Code (CC) guarantees the right to personal relations between a child and the parent who does not have parental authority or custody.
In exceptional circumstances, Article 274a, paragraph 1 CC provides that the right to maintain personal relations with a child may be granted to third parties, particularly family members, provided that it is in the best interests of the child.
In its ruling 5A_359/2024 of October 14, 2024, the Federal Supreme Court clarifies its case law on this matter. While courts typically grant a relatively limited visitation right to a third party, the law does not prohibit establishing a more extensive right, similar to that enjoyed by the child's father or mother.
However, the existence of exceptional circumstances, such as the death of one parent, must be demonstrated. Additionally, other factors must be taken into account, such as the child's age, their bond with the third party, and the availability of the latter.
Nevertheless, all these elements must be assessed in light of the sole paramount criterion for determining the extent of visitation rights granted to a third party: the best interests of the child. The interests of the child's parents, by contrast, take a secondary role.
In this regard, the Federal Supreme Court emphasizes that the judge has broad discretion. That being said, the child's well-being must be examined based on all the specific circumstances of the case, without merely applying standardized practices.
Thus, the Federal Supreme Court intervenes only if the cantonal judge has deviated from essential criteria in determining personal relations rights or, conversely, has relied on irrelevant or contradictory elements in relation to federal provisions.
In this case, the Federal Supreme Court confirmed that by granting the child's aunt and grandfather—following the mother's passing—a visitation right of one weekend out of two and part of the school holidays, the cantonal judge did not abuse their discretion.