Can she take our son away from me?

Can she take our son away from me?

"Thank you for your article of 3 April 2017. I would like to know what I can do if my wife, from whom I am separated, moves with my son from Geneva to Valais, without asking my opinion and presenting me with a fait accompli. How can I defend myself in this case?"

Stefano, Geneva

Article 301a of the Civil Code (CC) stipulates that a parent with joint parental authority may only change the child's place of residence with the agreement of the other parent or, failing that, by decision of the judge or the child protection authority if the new place of residence is abroad or if the move has significant consequences for the exercise of parental authority by the other parent or for personal relations with the other parent.

In this case, your wife does not want to move abroad, but to another canton. It is therefore essential to examine your situation to determine whether this move will have a significant and direct impact on your personal relationship with your son.

Assuming you have joint custody or access every other weekend and one or more days a week, the move would probably interfere with your personal relationship, as the distance between the two cantons and your son's school commitments would make it difficult to exercise access during the week. If this were the case, your wife would have to seek your agreement before moving. On the other hand, if the move did not have a significant impact on your personal relationship, she was not required to obtain your agreement. This would be the case, for example, if you only had more limited visiting rights on alternate weekends, especially if she was responsible for some of the commuting.

However, the Federal Court has specified that when the move is clearly against the child's interests and well-being, it cannot be justified by the right to determine the place of residence that a parent would enjoy. In extreme situations and in the event of an unlawful removal of the child, the parent with joint parental authority is liable to be convicted of child abduction under article 220 of the Criminal Code.

If you feel that your son's welfare is being compromised by this move or that it is actually interfering with your right to personal relations, you can refer the matter to the competent child protection authority, i.e. the authority in the child's place of residence, i.e. the Tribunal de protection de l'adulte et de l'enfant if your son is still domiciled in Geneva or the Autorité de protection de l'adulte et de l'enfant if he is already domiciled in Valais.