Child maintenance in Switzerland: KESB or court?

Anyone who has children and is not married will sooner or later face the question: whom do I approach to arrange maintenance? The answer depends on one specific factor, namely whether the parents reach an agreement or not. Where an agreement exists, jurisdiction lies with the KESB (Kindes- und Erwachsenenschutzbehörde, the Child and Adult Protection Authority; in Ticino known as ARPM). Without agreement, a maintenance action before the court is required. Below, we explain how the system works and what the practical consequences are for parents.

Children of married parents: the framework

For children born during marriage, the question of maintenance is regulated by the court. This takes place within marital protection proceedings (Art. 176(3) CC) or in divorce proceedings (Art. 133(1) CC).

If the parents subsequently wish to modify maintenance contributions already established, the route depends on consent: where the parties agree, jurisdiction passes to the KESB (Art. 179(1) CC, Art. 134(3) CC). Without agreement, the court decides.

For children born outside marriage, the mechanism is more detailed. It is worth examining it closely.

Parents in agreement: jurisdiction of the KESB

When unmarried parents reach an agreement on child maintenance, jurisdiction lies with the KESB (Kindes- und Erwachsenenschutzbehörde; in Italian, ARPM, Autorità regionale di protezione dei minori). This administrative authority has exclusive competence over the allocation of parental responsibility, custody, and care of children born outside marriage.

As regards maintenance, the KESB intervenes only where an agreement between the parents exists (Art. 287(1) CC). In practice, the authority assists the parents in drafting the maintenance agreement and ratifies it, thereby conferring enforceable status.

Proceedings before the KESB offer concrete advantages: they are quicker and less expensive than court proceedings. Lawyers are not required, although at Haab Legal we always recommend obtaining legal advice, at the very least for a review of the agreement before signing. Traditional court fees do not apply.

Parents in disagreement: jurisdiction of the court

If the parents cannot reach an agreement, the KESB is unable to determine the maintenance contribution. The law is unambiguous on this point: in the absence of consent, child maintenance must be sought from the court by means of a maintenance action (Art. 286(2) CC, Art. 298b(3) CC, Art. 298d(3) CC).

An important aspect: when the court is seized for maintenance, it also becomes competent for all other matters concerning the children (parental responsibility, custody, contact rights) that would normally fall within the KESB's remit. The reason is practical: a single set of proceedings for all issues, thus avoiding duplication.

The conciliation attempt

Unlike marital protection and divorce proceedings, the child maintenance action requires a preliminary conciliation attempt (Art. 198(b^bis) CPC). There is, however, an exception: if the parent has already approached the KESB without being able to reach an agreement, the conciliation attempt is deemed to have been completed. This preliminary step through the KESB can therefore save both time and costs.

Practical consequences for parents

For the parent seeking maintenance: if there is a possibility of reaching an agreement with the other parent, it is advisable to approach the KESB first. The procedure is leaner, less costly, and does not necessarily require a lawyer. If an agreement proves unattainable, a maintenance action must be filed with the competent court (in Ticino, the Pretura of the district), after first completing the conciliation attempt or by approaching the KESB beforehand.

For the parent liable to pay maintenance: cooperating to reach an agreement before the KESB is also financially advantageous. Court proceedings entail procedural costs, potential fees for the opposing party's lawyer, and longer timeframes. The agreement ratified by the KESB carries the same enforceable force as a court judgment: nothing is lost in terms of legal certainty.

Summary table of jurisdictions

Situation	Competent authority	Legal basis
Children of married parents: maintenance in marital protection/divorce	Court	Art. 176(3), Art. 133(1) CC
Children of married parents: modification with agreement	KESB	Art. 179(1), Art. 134(3) CC
Children of married parents: modification without agreement	Court	Art. 286(2) CC
Children of unmarried parents: with agreement	KESB	Art. 287(1) CC
Children of unmarried parents: without agreement	Court (maintenance action)	Art. 286(2), Art. 298b(3) CC

English Summary

Child maintenance in Switzerland: KESB or court?

Swiss law distinguishes between children born within and outside of marriage when determining which authority is responsible for maintenance (child support). For children born to unmarried parents, the competent authority depends on whether the parents agree.

If the parents reach an agreement, the KESB (Child and Adult Protection Authority, known as ARPM in Ticino) is competent to ratify the agreement and give it enforceable status (Art. 287(1) CC). The procedure is faster and less costly than court proceedings.

If no agreement is reached, the KESB has no authority to determine maintenance. The parent seeking support must file a maintenance action before the competent court (Art. 286(2) CC, Art. 298b(3) CC). Once the court is seized for maintenance, it also becomes competent for all related child matters (parental responsibility, custody, contact) for the sake of procedural economy.

A conciliation attempt is required before filing a maintenance action (Art. 198(b^bis) CPC), unless the parent has already approached the KESB without success, in which case the conciliation requirement is deemed satisfied.

• If an agreement seems possible, approach the KESB first: it is faster, less expensive, and the ratified agreement has the same enforceable force as a court judgment.
• If court proceedings are unavoidable, consider contacting the KESB first to satisfy the conciliation requirement.

(Tewlin, Die Abgrenzung der sachlichen Zuständigkeit zwischen Gericht und KESB in Kinderbelangen, Recht 3/2021, p. 144)

Contact Haab Legal

If you need to arrange maintenance for your children and are unsure where to begin, Studio Legale e Notarile Haab in Lugano can help you identify the right path. Avv. Hugo Haab and Avv. Roberto Haab regularly advise parents in these situations, both during the negotiation phase before the KESB and in court proceedings. Get in touch for a consultation.

For a personal consultation: info@haablegal.ch | +41 91 913 30 70