WHAT IS CHILD CUSTODY IN TURKEY?

WHAT IS A CHILD CUSTODY CASE IN TURKEY?

A child custody case in Turkey is a family law proceeding initiated to determine which parent will be granted custody of minor children. According to the Turkish Civil Code, child custody rights in Turkey include the duties of care, education, protection, and representation of the child and cannot be removed from the parents without a legal reason. Child custody cases are heard in family courts, aiming to prioritize the child’s best interests.

Child custody rights in Turkey includes responsibilities related to the child’s personal and property rights. Parents are responsible for the child’s upbringing, education, and well-being. In cases of separation or divorce in Turkey, the primary purpose of a custody arrangement is to secure the child’s future and protect their best interests.

In child custody cases in Turkey, the judge investigates custody issues ex officio, as they pertain to public order, and is not bound by the parties’ requests. The principle of the child’s best interests serves as the foundation for the decision-making process, including cases involving changes or revocation of custody.

The child’s opinion must be sought during custody arrangements, particularly for children aged 8 and above. According to precedents set by the Court of Cassation, decisions on child custody in Turkey cannot be made without considering the views of children who have reached the age of discernment. While the court prioritizes the child’s welfare, it is also obligated to take their preferences into account.

A child custody case in Turkey aims to improve the child’s living conditions and secure their future. Throughout this process, the child’s best interests take precedence over parental preferences.

• How to File a Child Custody Case in Turkey?

A child custody case is filed by submitting a petition to the competent family court, citing valid reasons for changing or revoking custody. In areas without a family court, the civil court of first instance handles such cases. The competent court is typically the court of the defendant’s place of residence. However, since there is no strict jurisdiction rule, the plaintiff may also file the case in the court of their own place of residence.

• How Long Does a Child Custody Case in Turkey Take?

The duration of a child custody case in Turkey depends on the court’s workload and the specific circumstances of the case. To expedite the process and prevent potential legal losses, it is recommended to seek support from an experienced family law attorney in Turkey. Legal consultation can provide more precise information regarding individual cases.

• Court Jurisdiction in Child Custody Cases in Turkey

In child custody cases, the competent court is the family court as stipulated by Law No. 4787. In areas without a family court, the civil court of first instance handles the proceedings. While the defendant’s place of residence generally determines jurisdiction, the plaintiff may also choose to file the case in their own place of residence.

WHAT IS A CHILD CUSTODY MODIFICATION CASE IN TURKEY?

A child custody modification case in Turkey, though subject to simplified trial procedures, cannot be decided by the court solely based on the file without summoning the parties to a hearing. This is because custody cases are matters of public order and are governed by the principle of ex officio investigation. Therefore, during the proceedings for child custody in Turkey, the court conducts a comprehensive review, gathering statements from the parties, the child’s opinions, and other evidence.

The judge may consult expert opinions and conduct investigations into the living conditions of the parties for change of custody. If the child is mature enough to express their views (age of discernment), the court listens to their opinion. However, if the child’s best interests conflict with their expressed views, the best interests take precedence.

Conditions for Custody Modification in Turkey:

Custody modification in Turkey is considered when changes in circumstances arise after child custody rights have been granted, and when such changes necessitate adjustments to protect the child’s best interests. Cases can be initiated if these circumstances lead to neglect or failure in fulfilling custody responsibilities.

Reasons for Change of Custody in Turkey:

• Marriage of the parent: A parent’s remarriage alone is not a sufficient reason for custody modification in Turkey. However, if the new marriage leads to neglect of custody duties, a modification case may be filed.
• Relocation of the parent: Long-term relocation (e.g., moving abroad) that disrupts the child’s care may justify change of custody.
• Death of the parent: If the parent holding custody passes away, custody does not automatically transfer to the other parent. The court will decide based on the child’s best interests.

Other Reasons for Custody Modification in Turkey:

• Preventing the other parent from establishing personal contact with the child.
• Leaving the child in the care of a third party.
• Situations where the child requires protection due to health, education, morality, or safety concerns.

Consequences of Custody Modification

• Personal contact arrangements: The parent without custody may request to establish personal contact with the child, which the court regulates.
• Child support (participation alimony): The non-custodial parent is required to contribute to the child’s care and educational expenses. Child support is effective from the date the court decision becomes final.

Change of custody in Turkey require a detailed examination, prioritizing the child’s best interests. The court considers the living conditions of the parents, the psychological state of the child, and their needs before making a decision according to child custody law in Turkey.

SCOPE OF CHILD CUSTODY RIGHTS IN TURKEY

Child custody rights in Turkey, regulated under Article 335 and subsequent provisions of the Turkish Civil Code, encompass the protection, education, and care of a child’s personal and property rights. The specific scope of custody is outlined, particularly in Article 339 and subsequent articles of the Code.

General Principles:

1. Best Interests of the Child: Parents are obligated to prioritize the child’s best interests in decisions concerning their care, education, and development.
2. Respect for Parents: The child is required to obey their parents, but this obligation does not legitimize the misuse of custody rights.
3. Right to Autonomy: Parents must allow the child, in accordance with their age and maturity, to organize their own life. The child’s opinions must be considered, especially in significant matters.
4. Prohibition on Leaving Home: The child cannot leave home without the parents’ consent.
5. Prohibition on Separation from Parents: A child cannot be removed from their parents without a legal reason, such as divorce, separation, a custody case, or abuse.
6. Naming the Child: The child’s name is jointly decided by the parents.
7. Living Abroad: The custodial parent may decide to live abroad with the child. The non-custodial parent cannot file a child return case solely based on this decision.

Child custody rights in Turkey can only be exercised to protect and promote the child’s well-being. Parents must avoid misusing these rights.

• Care and Education of a Child Under Custody

In matters concerning the care and education of the child, the child’s best interests must take precedence. Decisions should allow the child to shape their own life based on their age and maturity. The child’s opinion should be sought, particularly on issues that directly impact their future.

Parents are responsible for supporting the child’s physical, mental, emotional, moral, and social development within their means. Special care and education tailored to the child’s abilities and needs must be provided if the child has physical or mental disabilities.

• Religious Education of a Child Under Custody

Parents have the right to decide on the child’s religious education. Any agreements or arrangements that limit this right are invalid. Upon reaching adulthood, the child is free to choose their religion and beliefs without coercion.

• Representation and Legal Capacity of a Child Under Custody

Within the scope of child custody law in Turkey, parents represent the child in dealings with third parties. For instance, school enrollments, course applications, and participation in sports or arts activities are handled by parents on behalf of the child.

According to Article 342 of the Turkish Civil Code, rules concerning the representation of a ward in guardianship law apply to the representation of a child. Additionally, Article 343 refers to guardianship provisions regarding the child’s legal capacity. A child is responsible for their debts with their own property, and parents’ rights over the child’s property do not alter this liability.

• Representation of the Family by the Child and Transactions with Parents

A child with the capacity to discern may perform legal transactions on behalf of the family with the parents’ consent. However, the parents are responsible for obligations arising from such transactions. Legal transactions between the child and the parents that result in the child incurring debt require court approval and the appointment of a guardian. Otherwise, the liability falls on the parents.

ESTABLISHING VISITATION RIGHTS FOR NON-CUSTODIAL PARENTS IN TURKEY

In divorce or separation cases, the parent who is not granted child custody in Turkey may request the court to establish a visitation right with the child. Pursuant to Article 182 of the Turkish Civil Code (TCC), the court is obligated to regulate such personal relations even if no specific request is made.

TCC Article 182/2:
“In its decision, the court shall warn that failure to comply with the requirements of personal relationship arrangements may lead to a change in custody, provided this is not contrary to the child’s best interests.”

The custodial parent must comply with the court’s decision regarding personal relationship arrangements. Failure to do so may result in custody being transferred to the other parent. For instance, if the custodial parent prevents the child from meeting the non-custodial parent or violates the court-ordered visitation rights arrangement, the court may decide to change custody.

UNDER WHAT CIRCUMSTANCES IS CUSTODY GRANTED TO THE MOTHER IN TURKEY?

In divorce cases, custody decisions are made based on the child’s age, the circumstances of the parents, and the child’s best interests. Generally, custody is granted to the mother if the child is young or in need of maternal care and affection, provided there is no impediment to the mother fulfilling this responsibility.

If the child has reached a certain age and maturity, the court may consider the child’s preference regarding which parent they wish to live with. For example, if the child expresses a desire not to live with the father and there are no obstacles to the mother taking custody, the court often grants custody to the mother.

In uncontested divorce cases, even if the parties have agreed on custody arrangements, the court is obligated to review the custody agreement to ensure the child’s best interests are protected. If the child is very young, the court may decide to grant custody to the mother, even if the parents have agreed otherwise. If such mutual custody agreement can not be maintained, the uncontested divorce case may become contested.

The custodial parent’s remarriage alone is not grounds for change of custody in Turkey. However, if the new marriage negatively affects the child’s living conditions or undermines their best interests, the court may reassess custody arrangements.

UNDER WHAT CIRCUMSTANCES IS CUSTODY NOT GIVEN TO THE MOTHER?

Child custody in Turkey is related to public order and primarily aims to protect the child’s health, education, and moral values. In the following situations, custody is not given to the mother:

• The Mother’s Lifestyle: If it is determined that the mother’s lifestyle negatively affects the child’s moral values, such as the mother being a prostitute.
• The Mother’s Abuse of Custody Responsibilities: If the mother prevents the father and child from having personal contact or deliberately makes it difficult for the child to meet with the father.
• The Child’s Declaration: If the child declares a desire to live with the father and the court determines that there is no obstacle to the father assuming custody.
• The Mother’s Age: If the mother is not of legal age, custody is not given to her.

As a result, when determining which parent will receive child custody in Turkey, the court bases its decision on the child’s best interests. The lifestyle, sense of responsibility, and the physical and emotional environment provided by the mother or father are key factors in this decision.

UNDER WHAT CIRCUMSTANCES IS CUSTODY GIVEN TO THE FATHER?

During the divorce process, child custody rights being granted to the father depends on many factors. Generally, if custody given to the mother has a negative impact on the child’s health, education, or morals, custody may be granted to the father. Additionally, if the child expresses a desire to live with the father during the divorce proceedings in Turkey and there is no obstacle to the father assuming custody, the court may decide to grant custody to the father in consideration of the child’s best interests. The child’s age is not the sole determinant in deciding child custody in Turkey; each case is evaluated individually to ensure the child’s best protection.

The mother and father may jointly decide to transfer custody to the father, but even in this case, it is examined whether there is an obstacle to the father assuming custody. Furthermore, if the mother abuses her custody responsibilities, for instance, by hindering the child’s personal relationship with the father or preventing visits on scheduled days, custody may be granted to the father. Custody may also be transferred to the father if the child is already living with him, for example, due to the school being closer to the father. In all cases, the child’s best interests are always prioritized.

IS JOINT CUSTODY POSSIBLE UNDER CHILD CUSTODY LAW IN TURKEY?

Joint custody is an arrangement where the mother and father jointly exercise the rights, powers, and responsibilities related to the child’s custody. In this system, parents make decisions together regarding the child’s education, health, and overall well-being. The basic principle of Turkish law is to grant custody to one of the parents in the event of divorce. However, under certain conditions, joint custody in Turkey can also be applied.

• Conditions for Joint Child Custody in Turkey

Certain conditions must be met for shared custody to be implemented:

1. The Child’s Best Interest: The judge must base their decision on the child’s welfare. A joint custody arrangement should align with the child’s physical, emotional, and social needs.
2. Agreement Between Parents: One condition of shared custody is voluntary consent. Serious disagreements between parents could harm the child.
3. The Child’s Opinion: For children of discernment age, their opinion should be considered, and expert reports can be utilized if necessary.

• Advantages of Joint Custody in Turkey

Joint custody offers significant benefits for the child to maintain a healthy relationship with both parents. The advantages include:

1. Parental Support: Both parents actively support the child.
2. Equal Responsibility: Decisions regarding the child are made jointly, ensuring a fair process.
3. Cooperation Requirement: It enhances communication and cooperation between the parents.
4. Emotional Support: One of the greatest advantages is reducing emotional distress for the child.

Disadvantages of Joint Custody in Turkey

Joint Custody system also comes with certain risks and challenges, including:

1. Decision-Making Difficulties: Disagreements between parents can lead to impasses in decision-making about the child.
2. The Child’s Emotional State: Shared custody might create false hope in the child that the parents will reunite.
3. Practical Challenges: Requiring both parents’ approval in emergencies could negatively impact the child’s life.

• Joint Custody in Turkish Law

1. Civil Code Provisions: According to the Turkish Civil Code, custody is generally granted to one parent after divorce. However, shared custody decisions have been observed in some cases.
2. Judicial Decisions: The first shared custody decision in Turkey was made by İzmir 4th Family Court. This decision emphasized the benefit of the child maintaining relationships with both parents. Initially, the Court of Cassation ruled that such decisions were contrary to public order. However, a 2017 ruling by the Court of Cassation recognized that shared custody is not against public order.
3. International Conventions: International agreements to which Turkey is a party, such as the United Nations Convention on the Rights of the Child and the Additional Protocol to the European Convention on Human Rights, have paved the way for shared custody based on the child’s best interests.

• Shared Custody in Contested and Uncontested Divorces

In uncontested divorces, if the parties agree on joint custody in Turkey, judges may approve this arrangement. However, both parents must equally fulfill all custody-related responsibilities. Practical issues, such as requiring the consent of both parents for official transactions, may arise.

Joint custody ensures that both parents contribute equally to the child’s development, requiring careful evaluation to make decisions in the child’s best interests. While shared custody is not the default rule of child custody in Turkey, its application has increased under the influence of international agreements. Factors such as the child’s welfare, parental compatibility, and practical feasibility should be thoroughly assessed when considering joint custody in Turkey.

Since custody arrangements are related to public order, even if the parties agree on joint custody in Turkey during an uncontested divorce, they cannot stipulate custody arrangements in prenuptial agreements or marital contracts. Such provisions are invalid, and the court will independently investigate the custody situation.

KEY POINTS TO KNOW ABOUT CHILD CUSTODY IN TURKEY

Child custody is a legal authority and responsibility granted to parents to protect and care for their child. In divorce cases, determining who will have custody is of vital importance for both parents and children. Therefore, it is essential to examine the key aspects of child custody in detail.

• Determining Custody of the Child in Turkey

When determining child custody in Turkey, courts prioritize the best interests of the child. Relevant legal criteria are considered and evaluated to ensure they align with the child’s welfare. While factors such as the child’s preferences and the parents’ financial situations are important, the primary focus is on meeting the child’s physical and emotional needs. Courts base their decisions on various pieces of evidence, including witness statements, expert reports, and the child’s testimony.

• Temporary Custody in Turkey

After the divorce proceedings begin, the court issues a temporary custody order to decide who the child will live with until the trial concludes. Temporary custody is often granted to the mother, based on the assumption that the child may have a closer bond with her. However, this is not a final decision; the definitive custody ruling is made at the end of the trial.

• The Role of the Child’s Age and Gender for Child Custody in Turkey

The child’s age plays a critical role in custody decisions in Turkey. For instance, children aged 0–3 years are usually considered to need maternal care more, leading to custody often being granted to the mother. For children aged 3–7, fathers may also be considered suitable custodians. For school-age children, the court evaluates the parents’ ability to provide educational opportunities. While there are common perceptions about the influence of gender, courts primarily focus on the child’s relationship with each parent. It is important to note that children, regardless of their gender, may be affected by the divorce process.

• Considering the Child’s Opinion in Child Custody Cases

Courts today place greater emphasis on the child’s opinion than in previous years. As a signatory to the United Nations Convention on the Rights of the Child, Turkey recognizes the importance of listening to the child’s views. Precedents set by the Court of Cassation also emphasize that children’s opinions should be given more weight in child custody cases.

• Termination of Child Custody Rights in Turkey

Child custody rights in Turkey may terminate under certain circumstances. If a parent fails to fulfill their custodial duties or abuses this right, the court may transfer custody to the other parent or appoint a guardian for the child. Additionally, custody ends when the child reaches adulthood or if one of the parents passes away.

• Giving the Mother’s Surname to a Child After Divorce

The Constitutional Court’s 2015 decision allows divorced mothers to give their surname to children under their custody. This ruling has significantly contributed to gender equality and women’s rights. The Court of Cassation has supported this practice with consistent rulings.

Child custody rights are critical issues for both parents and children. The primary objective of the law is to make decisions in the child’s best interests. Parents who are informed about their legal rights and responsibilities can help ensure that this sensitive process is managed more effectively.

RECOGNITION AND ENFORCEMENT OF FOREIGN COURT CUSTODY DECISIONS IN TURKEY

The recognition and enforcement of foreign court custody decisions in Turkey is an important issue in international private law and is frequently encountered. In order for a court decision made in one country to be valid in another country, certain conditions must be met.

In Turkish law, the recognition and enforcement of foreign court decisions are based on the regulations of Civil Procedure Law and International Private Law. For a foreign court custody decision to be valid in Turkey, it must first be recognized in the country. Recognition means accepting the content of a decision in a way that generates legal effects within the country without ensuring its validity in another country. Enforcement, on the other hand, is the process through which a foreign court decision becomes enforceable in Turkey.

• Conditions for Recognition of Foreign Court Child Custody Decisions in Turkey

In order for a foreign court child custody decision to be recognized in Turkey, the following conditions must be met:

1. Mutual Recognition of Decisions: Turkey recognizes foreign court decisions based on the principle of mutual recognition with other countries. This means that each country must accept the court decisions of other countries under specific conditions.
2. Contradiction with Public Order in Turkey: Foreign court decisions cannot be contrary to Turkey’s public order. For example, if a foreign court’s custody decision is made without considering the child’s best interests, that decision may not be recognized in Turkey.
3. Best Interests of the Child: In Turkey, especially in custody-related decisions, the best interests of the child are prioritized. Therefore, if a foreign court’s custody decision harms the child’s interests, it will not be recognized.
4. Jurisdiction of the Court: The foreign court must have jurisdiction over the matter in question. If a court makes a decision based solely on its own country’s circumstances, that decision may not be recognized in Turkey.

• Conditions for Enforcement of Foreign Court Child Custody Decisions in Turkey

For a foreign court child custody decision to be enforceable in Turkey, it must go through the process of enforcement. Enforcement means making a foreign court’s decision applicable in Turkey. The following conditions must be met for an enforcement application:

1. No Obstacle in International Law: The foreign court decision must not contradict Turkish law or any international treaties to which Turkey is a party. For example, a decision by a court of a country that is a party to the UN Convention on the Rights of the Child may be enforced in Turkey unless it violates the child’s rights.
2. Application of the Local Court: The enforcement application is made to the local court, which then decides whether the foreign court decision is compatible with Turkish law. If the court determines that the decision is in harmony with Turkish law, an enforcement order will be issued.

Foreign court custody decisions are evaluated with particular consideration for the child’s best interests. Since Turkey is a party to many international conventions on child rights, foreign court decisions may be recognized as long as they align with the child’s welfare.

However, not all foreign court child custody orders are valid in Turkey. For instance, if a decision restricts the child’s communication with the other parent or threatens the child’s physical and emotional health, Turkey has the right to refuse recognition or enforcement of such decisions.

The recognition and enforcement of foreign court child custody orders in Turkey, especially in sensitive matters like custody, require careful consideration. Factors such as Turkey’s adherence to international treaties and the foreign court’s focus on the child’s best interests are key elements in determining whether these decisions will be recognized and enforced. Therefore, seeking assistance from a specialized law firm in Turkey for the recognition and enforcement of foreign court custody decisions is crucial.

THE IMPORTANCE OF GETTING LEGAL SUPPORT FROM A CHILD CUSTODY LAWYER IN TURKEY

In custody cases in Turkey, the primary concern is the child’s best interests, encompassing their emotional well-being, education, and living arrangements. A competent child custody attorney in Turkey meticulously evaluates the circumstances of each case, gathers relevant evidence, and advocates effectively before the court to secure favorable outcomes. They can provide strategic advice on issues such as temporary custody, visitation rights, and financial responsibilities, ensuring that their client’s rights are protected while maintaining a focus on the child’s welfare.

A child custody lawyer in Turkey is indispensable in navigating the complexities of child custody disputes, which often carry significant legal, emotional, and logistical challenges. These professionals possess in-depth knowledge of Turkish family law, including the Civil Code and international treaties such as the Hague Convention on the Civil Aspects of International Child Abduction, making them essential for both domestic and cross-border custody matters.

Furthermore, in cases involving the enforcement of foreign custody decisions or disputes arising from international parental relocation, the expertise of a child custody lawyer in Turkey becomes even more critical. They ensure compliance with international agreements and facilitate legal processes such as recognition and enforcement to make foreign judgments legally binding in Turkey. With their guidance, clients can navigate the legal system confidently, ensuring that the child’s needs are met and the case is resolved as efficiently as possible.