Can access rights be changed?
Can access rights be changed?
"I've been divorced for several years. Custody of my 13-year-old daughter has been awarded to my ex-wife, but I have visiting rights from Wednesday evening to Thursday morning and from Friday evening to Saturday evening each week, as well as half the school holidays. However, my ex-wife has a job that requires her to travel abroad quite often, for anything from 2-3 days to three weeks. She wants me to take custody of my daughter during these days. Am I obliged to accept?
François, Geneva
In principle, when you divorced, the court decided on the question of custody of and access to your daughter. Visiting days are normally also set according to your availability. In addition, the alimony you pay for your daughter helps to cover her expenses for the days when she is not with you. Of course, if the parties agree, there is nothing to prevent them from agreeing different visiting rights. The divorce decree therefore generally sets a minimum.
However, your ex-wife cannot force you to visit your daughter if you are unable to look after your child during the days that should be looked after by her mother. To do this, and if there are new facts, your ex-wife will have to refer the matter to the guardianship authority, which is the competent authority under article 134 paragraph 4 of the Civil Code, for a change in access rights.
On the other hand, if she wishes to change the allocation of parental authority and therefore custody rights, she should refer the matter to the divorce judge, who has sole jurisdiction in the event of disagreement between the parents. Note that if the parents agree on the principle of changing parental authority, they should submit their agreement for ratification to the guardianship authority and not to the judge.
Finally, if parental authority is changed, this should also result in a reduction in the maintenance contribution to be paid to your daughter. If your child spends more time with you, you will be contributing in kind to her needs, which justifies a reassessment of the maintenance contribution.
