Pedigree and authority

Guardianship of children upon the death of parents

Who will take care of your children if you pass away? This is a question one prefers not to think about, but one that deserves attention. Although you may not assume it will happen to you, there are several examples of parents who pass away and leave their children behind. In order to ensure that the children are well taken care of after your death, it is important to think about this early on and record your wishes.

Guardianship

Until 2014, parents recorded the custody of children after their death in their will or in a separate notarial deed. This has now been significantly simplified as of April 1, 2014. Using a simple form, parents with custody can have it recorded in the custody register who will act as guardian after the parents' death.

Rights and duties of the guardian

It is important that parents discuss with their intended guardian(s) the rights and duties of guardianship and whether they are willing to accept them. Guardianship can have far-reaching consequences; moreover, there is a difference between joint guardianship and guardianship alone.

A guardian alone is responsible for the care and upbringing of the children, but is not required to do so himself. The child can also go to a home or foster home. The guardian is the child's legal representative and also manages the assets. This management is supervised by the cantonal judge. The guardian alone can also ask the district judge for permission to use the child's assets for the child's living expenses.

Joint guardianship implies that the guardians care for and educate the child themselves. In addition, joint custody also entails a maintenance obligation. Thus, the child's living expenses must be met by the guardians and the child's assets may not be used for this purpose. The guardians are together legal representatives of the child and they also manage the assets together. As joint guardians, they generally also receive child support.

Acceptance of guardianship

If parents have appointed someone as guardian, the guardianship only starts when the guardian has accepted the guardianship. For this purpose the guardian must make a declaration of willingness at the registry of the court.

Acknowledgement

If the parents of a child are not married or have not entered into a registered partnership, the father or the mother from whom the child was not born (duo-mother) can acknowledge the child. Recognition is the formal legal act by which a family law relationship is established between the child and the father or duo-mother. Recognition does not give this parent direct custody. Custody will have to be registered separately in the custody register.

Acknowledgment has several consequences for both the child and the acknowledging parent:

• the parent gains shared financial responsibility for the child;
• an inheritance bond is created between the child and the acknowledging parent;
• the acknowledging parent has the right of access to the child.
• Acknowledgment before birth

Parents can arrange the recognition of the child before the child is born. This is called recognition of the unborn child. Recognition must take place at the municipality. The condition for the recognition of the unborn foetus is that the mother be present in person. The advantage of acknowledging the unborn foetus is that the child has two legal parents immediately upon birth. The acknowledger is also immediately listed as a parent in the birth certificate. When acknowledging the unborn foetus, a choice of name can also be recorded immediately - depending on nationality. This choice of name can only be made for the first child. Subsequent children of the same parents, must bear the same surname.

Acknowledgment after birth

Recognition of the child can also be done after the child's birth. For recognition, the recognizer must be present in person. The mother does not have to be present in person in this case. She can consent to the recognition through a consent form. If the child is between the ages of 12 and 16, then, in addition to the mother, the child must also consent to recognition.

If the parents want the child to carry the surname of the acknowledger, then a choice of name can be made at the time of acknowledgement. For this, however, the mother must be present in person.

Consent for recognition

If the father wishes to acknowledge the child and the mother refuses permission, the father can ask the court to grant him substitute permission for recognition. Unlike recognition with the mother's consent, substitute consent for recognition requires establishing that the man is the child's biological father. If necessary, the judge may determine that a DNA test must first take place.

Within the procedure, the judge will weigh up the interests. On the one hand, the interests of the father play a role, on the other hand, the interests of the mother to have an undisturbed relationship with the child also play a role. Of course, the judge also looks at the best interests of the child, including the effect of recognition on the child's social and emotional development.

The mother can hinder recognition by having another person recognize the child. However, if proceedings have already been initiated by the sire to obtain substitute consent, the other man's recognition is a conditional recognition.

Judicial establishment of paternity

Not only the mother can prevent recognition, but the father can also refuse to recognize a child. To still establish a family relationship between father and child, the mother (until the child is 16 years old) or the child itself, can ask the court to establish paternity. Again, it must be established that the man is the biological father, and a DNA test may be ordered.

Judicial establishment of paternity works back to the time of the child's birth. This means that it may also make sense to have paternity established by court order if the father has already died. A family relationship is then established retroactively, so that the child can inherit from the father.

Parental authority

The parents of a child born within their marriage have joint custody of that child by operation of law. This joint custody continues after the termination of the marriage. In unmarried couples, only the mother has legal custody. The parents must have joint custody recorded in the register of custody.

Rights and duties of parental authority

Parental authority entails the duty and right to care for and raise the child. The parent in charge of custody has the responsibility for the physical and mental well-being of the child. In addition, this parent has the duty to foster the child's bond with the other parent.

Child custody dispute

In practice, parental authority means that the parents must make decisions regarding the child together. Of course, smaller day-to-day decisions can be made by the custodial parent. Larger decisions, such as choosing a school or moving house, must be made with the consent of both parents. If there is no such consent, we speak of a custody dispute. The parents will then have to come to a decision under the supervision of a mediator. If mediation does not help, the judge can be asked to make a decision in an accelerated procedure.

Change of custody

Although the law assumes that it is in the best interest of the child that it is raised by both parents, there are situations where the best interest of the child requires a parent with sole custody. This happens only in exceptional situations. In such a case, the judge assesses whether there is an unacceptable risk of the child becoming trapped or lost between the parents. The mere fact that parents cannot communicate well with each other is insufficient to be charged with sole custody. For the court, the best interests of the child are always paramount.

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