Consideration of a Child’s Will Sample Clauses

Consideration of a Child’s Will. The child’s will is of great importance when regulating visiting rights (BGE 124 III 90, LGVE 1998 I No. 4). To this end, children must be heard by the court or child protection authority whenever possible and, according to federal case law, at the latest from the age of six years, unless there are other important reasons that indicate otherwise (BGE 131 III 553 E. 1, BGer 5C.63/2005 E. 1.2.3.). The will of the child is to be taken into account not only in the organisation of personal contact but already when it comes to the question of whether personal contact should be granted at all (Article 301.2 of the Civil Code; BGE 127 III 295). The Federal Supreme Court is of the opinion that the regulation of visiting rights should not depend solely on the will of the child (BGE 127 III 295, BGer5A_331/2009 E. 2.2.2. et seq., 5A_342/2008 E. 4.3.). This is because the will of the child does not necessarily correspond to its welfare. The court or the child protection authority must assess the extent to which the expressed will of the child can actually be taken into account on the basis of his or her age, cognitive abilities or, for example, his or her ability to be influenced. The older a child is, the more likely it is that his or her opinion will be taken into account in the arrangement of the visiting rights. As a rule, legal judgments in matters of visiting rights are assumed from the age of twelve years, at the latest (BGer 5C.293/2005 E. 4.2., BGer 5A_107/2007 E. 3., 5A_92/2009 E. 2.2.3.). From this age, children must be granted an extensive right of co-determination regarding visiting rights. The Federal Supreme Court does not attach any decisive importance to statements made by younger children (approx. 10 years old) regarding visiting rights as they are unable to assess the medium to long-term consequences of breaking off contact (BGer 5C.293/2005 E. 4.2.).