Can one deviate from the visitation framework set by a court? More specifically, can one be reproached for doing so?

In a particularly interesting ruling dated April 1, 2025, under reference FSC 5A_878/2024, the Federal Supreme Court was presented with this question through the situation of two women previously bound by a registered partnership and mothers of two children, who separated in 2019.

Only one of them has a legal filiation link with the children. The joint adoption request was refused in 2022, as the two women were no longer living together when they submitted it—a cruel situation if ever there was one, since they couldn't have submitted it earlier given the law's provisions until then. The other mother is therefore considered a visiting parent, or not even legally recognized as a parent at all.

She holds, through various legal references, the right to maintain appropriate personal relations with the children according to the circumstances.

In this case, in 2019, the Adult and Child Protection Court of the Canton of Geneva granted this visiting parent visitation rights every other week, from Friday after school until Sunday at 6 PM, as well as one night per week.

The two women are in open warfare, according to the Federal Supreme Court ruling. Both the court of first instance and the cantonal court notably reproached the mother for having deviated from the initially established visitation rights.

This mention is particularly striking. Indeed, according to consistent case law, visitation rights set by courts are understood as minimal personal relations rights. Usually, nothing prevents a custodial parent and a visiting parent from agreeing on more extensive visitation arrangements. This is generally considered to be in the child's best interest.

However, the cantonal court's terms are telling, as it accuses the visiting mother of having "*not respected*" these arrangements by organizing shared custody. She complained to the Federal Supreme Court, in our opinion rightfully so.

The Federal Supreme Court admits, in principle, that parents cannot be forbidden from reaching agreements between themselves, and fortunately so. It circumvents the obstacle by explaining that authority intervention was necessary in this case, due to the intensity of the conflict between the parents, and that shared custody was not suitable for them.

In other words, the Federal Supreme Court acknowledges that the grievance raised by the cantonal court was clearly not appropriate, but that the solution it found appears entirely just in the children's interest.

This is a rare case demonstrating that parents can indeed deviate from personal relations rights generally established by courts of first instance, but that these courts may, in an unfortunate interpretation of the law, tend to reproach them for having done so.

Generally speaking, deviating from personal relations rights set by an authority is perfectly possible if both parents agree. The usual formula in this matter is indeed "*unless better agreed*".

However, in certain particular circumstances, one should not deviate from them without the authority's intervention.

Such particular circumstances are notably present when one of the parents, particularly the visiting parent, is subject to an investigation or simply to complaints regarding educational matters or parental capacity.

In these circumstances, significantly deviating from personal relations deliberately restricted by the authority can be perceived, with respect to the custodial parent, as an admission of the lack of seriousness of their complaints, or, if these complaints are fully substantiated, problematic given their parental competencies.

For example, a parent with substance abuse issues who would be granted visitation rights restricted to daytime only, which would not be respected by the custodial parent who would allow them to take the children for the entire weekend, including overnight, could be viewed particularly critically by an authority.

Moreover, this applies when the authority intentionally limits personal relations due to conflict. It gives general instructions to the parents, as it has the right to do under Articles 307 and following of the Civil Code, and these instructions must be followed, unless parental capacity deficiencies can be demonstrated.

Image by Midjourney.