Unmarried parents: Geneva must still examine alternating custody

Joint parental authority does not decide custody. The Federal Supreme Court said so in judgment 5A_261/2025 of 28 July 2026, for a child born in 2020 to unmarried parents in Geneva. The appeal is allowed. The cantonal judgment of 18 February 2025 is annulled. The case is sent back. The Federal Supreme Court does not set custody.

What Geneva had decided

The parents had made a declaration of joint parental authority. They separated in December 2021.

The first-instance court set alternating custody, one week on and one week off, from the start of the 2025 school year. The Court of Justice set that solution aside. It gave exclusive custody to the mother and extended visitation rights.

On 28 July 2026 the Second Civil Law Division (Hartmann, De Rossa and Brunner) annuls that judgment of 18 February 2025. It treats it as an abuse of discretion under article 298b paragraph 3ter of the Civil Code. It does not itself choose the alternate-week pattern in Geneva's place.

The examination that remains mandatory

The Federal Supreme Court holds that joint parental authority does not command alternating custody.

If a parent or the child asks for it, it is necessary to examine whether it is possible and whether it is compatible with the child's best interests. The examination takes place even without agreement. For unmarried parents the provision is article 298b paragraph 3ter of the Civil Code. Article 298 paragraph 2ter concerns married parents. Here the parents are not married. The educational abilities of both parents were not in dispute.

The first-instance court had set alternating custody. The Court of Justice had set it aside. The Federal Supreme Court treats that cantonal decision as an abuse of discretion. Geneva takes the examination up again on the updated situation. The judgment does not supply a model for another family.

The conflict

The Federal Supreme Court holds that communication which is only in writing does not, in itself, rule out alternating custody. The need to bring in a third person in order to decide does not rule it out either, in itself.

A parent's refusal does not, on its own, prove an inability to cooperate.

A marked and lasting conflict stands in the way only if it bears on questions other than how care is shared. The judgment does not name those other questions. It does not say that a disagreement about school, health or education could no longer block alternating custody.

Working time

A mere difference in employment rates does not systematically argue against alternating custody. Identical availability is not required.

Except where the child has specific needs, or where there is unavailability even in the morning, in the evening and at the weekend, care by the parents and care by third parties are treated as equivalent. At the time of the cantonal judgment the child was almost four and a half. The child went to nursery three mornings a week.

These are the facts of this file. They do not say what answer another rate, or another nursery, would call for. The concrete case still has to be checked.

The journey

Less than 10 km, a journey of 17 minutes, or 23 minutes for a departure at 7:43 a.m., do not in themselves stand in the way. Treating the journey as "at least 30 minutes" at peak hours was arbitrary.

These distances and times are not legal thresholds. They describe this file. Another journey is examined on its own. The concrete case still has to be checked.

Stability

Stability is not limited to the custody arranged after the separation. It is also necessary to look at who looked after the child before.

The judgment does not turn that into a principle of immutability. What existed before does not lock custody in place. What was set after the separation does not lock it in place either.

What this judgment does not decide

The Federal Supreme Court does not order alternating custody. It does not impose the first-instance pattern of one week on and one week off. It annuls the judgment of 18 February 2025 and sends the case back. Geneva hears the case again on the updated situation.

Court costs of CHF 2,000 are charged to the respondent. They are provisionally borne by the Federal Supreme Court's fund. Legal aid is granted on both sides.

The judgment does not set an age, an employment rate or a number of minutes above which alternating custody would be required.

Common questions

• Does joint parental authority impose alternating custody? No. In this judgment it does not command it.
• Is one parent's refusal enough to rule it out? No, not on its own. It does not, on its own, prove an inability to cooperate. Communication that is only in writing, or the need for a third person in order to decide, does not rule it out in itself.
• Does a lasting conflict always block alternating custody? It stands in the way only if it bears on questions other than how care is shared. The judgment does not say that a disagreement about school, health or education could no longer block it.
• Does the employment rate, or the journey in this file, decide custody? No. The difference in rates does not systematically argue against alternating custody. The kilometres and the minutes are not thresholds. The concrete case still has to be checked.
• Did the Federal Supreme Court order alternating custody? No. It annuls the Geneva judgment and sends the case back. Geneva hears the case again on the updated situation.
• What should be gathered before asking the question? The declaration of parental authority, the agreement, the writings, the care calendar, the working hours, the journey, and who looked after the child before the separation.

Avocados AI's Basic plan costs CHF 4.99 a month, the price of a coffee. It is there to organise the agreement, the writings and the care calendar, and to prepare the questions. It does not replace a lawyer's review of the file. The Swiss family law guide sets out the framework of parental authority and custody.

Sources

Federal Supreme Court, judgment 5A_261/2025 of 28 July 2026, Second Civil Law Division. Civil Code, articles 298 and 298b. Only the official publication is authoritative.