What is Custody?
Custody refers to the legal right and duty of parents to take care of their minor children or adult children who are not legally competent and do not require a guardian, as deemed by the court. This includes raising the children, providing for their care, protecting their material and moral assets, and representing them in legal matters.
As emphasized by the Supreme Court's General Assembly on Civil Law, custody encompasses duties and rights related to the child's care, education, training, protection, as well as the child's personality and assets.
Article 335 of the Turkish Civil Code No. 4721 stipulates the conditions for custody as follows:
"A minor child is under the custody of their parents. Custody cannot be taken away from the parents without a legal reason. Adult children who are restricted by the court also remain under the custody of their parents unless the court deems it necessary to appoint a guardian."
When the marital union is ongoing, the custody of the joint child belongs to both parents, and there are no issues. However, the major issue that arises with the dissolution of the marital union, i.e., divorce, is the custody of the joint child. In divorce cases, custody is determined by a judge.
A custody case is a type of family law case filed by the parent who does not have custody against the other parent, and it is heard in the family court.
Custody is a non-transferable right strictly attached to the person, and it cannot be relinquished unless there is a reason that necessitates the removal of custody. Custody-related provisions are generally considered to be matters of public order. In custody cases, the principle of ex officio investigation by the judge applies. Since family court judges have broad discretion on the subject, every claim put forward should aim at the best interest of the child rather than the parties.
The ultimate goal of custody is to prepare the minor child, who has not yet reached adulthood, for future life as an adult.
Principle of the Best Interest of the Child
The principle of the best interest of the child, frequently encountered in both legal practices and everyday life, means that in all public and private actions concerning children, the primary consideration should be the child's best interest. The best interest of the child is a dynamic concept that changes over time and space and must always be protected.
The United Nations Convention on the Rights of the Child explains the necessity of the child's best interest as follows:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interest of the child shall be a primary consideration."
The best interest of the child means prioritizing the child's rights and benefits to ensure their physical, mental, spiritual, and social development.
The best interest of the child must be assessed individually for each case.
In the Supreme Court's 2nd Civil Chamber decision, 2016/8726 E., 2018/610 K., dated 16.01.2018:
"When determining custody, the fundamental principle to be considered is the 'best interest of the child' (United Nations Convention on the Rights of the Child, Article 3; European Convention on the Exercise of Children's Rights, Article 1; Turkish Civil Code, Articles 339/1, 343/1, 346/1; Child Protection Law, Article 4/b). When determining the best interest of the child, it is necessary to consider the goal of ensuring their physical, mental, moral, and social development. The benefits of the parents, their faults in the divorce, their moral values, and social positions are considered only insofar as they do not affect the child's best interest."
In the Supreme Court's General Assembly on Civil Law decision, 2017/2069 E., 2018/1179 K., dated 06.06.2018:
"The provisions on custody regulated between Articles 335 and 351 of the Turkish Civil Code are generally related to public order, and since the principle of ex officio investigation applies in custody cases, the judge is not bound by the parties' requests. When examining requests for changes in custody, the judge considers the child's best interest rather than the parents' desires and preferences."
In the Supreme Court's 2nd Civil Chamber decision, 2021/2572 E., 2021/4104 K., dated 31.05.2021:
"Undoubtedly, the parent with custody must protect the child's best interest in every action and transaction concerning the child. The best interest of the child is a criterion and guide that must be considered in every matter concerning the child and used to determine what is best for the child in a specific case. Protecting the child's best interest also serves to guarantee the child's rights. Ensuring the child's best interest is not only beneficial for the child or the parents but also for society. Positive social, cultural, physical, and psychological development of the child will prevent the emergence of harmful behaviors in society in the future."
Importance of the Child's Statement in Determining Custody
To ensure the correct determination of the child's best interest and custody, the child's meaningful participation in the process must be ensured. Decisions should not be made entirely independently of the child, solely to achieve the child's best interest. The child should be involved in the process to an appropriate extent. One of the natural outcomes of observing the principle of the child's best interest is to obtain the child's statement regarding custody and understand their opinion fully and accurately.
The United Nations Convention on the Rights of the Child, Article 12, and the European Convention on the Exercise of Children's Rights, Articles 3 and 6, stipulate that the views of children who are capable of forming their own views must be heard and given due weight in matters concerning them.
The United Nations Convention on the Rights of the Child, Article 12:
"States Parties shall assure to the child who is capable of forming their own views the right to express those views freely in all matters affecting them, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."
The European Convention on the Exercise of Children's Rights, Article 3:
"A child considered by internal law as having sufficient understanding shall be granted the following rights in judicial proceedings affecting the child: a) to receive all relevant information; b) to be consulted and express their views; c) to be informed of the possible consequences of giving their views and the possible consequences of any decision."
The European Convention on the Exercise of Children's Rights, Article 6:
"In judicial proceedings affecting a child, the judicial authority before taking a decision shall: a) ensure that it has sufficient information to take a decision in the best interest of the child and, where necessary, obtain further information, in particular from the holders of parental responsibilities; b) where the child is considered by internal law as having sufficient understanding: ensure that the child has received all relevant information; consult the child in a manner appropriate to the child's understanding, unless this is manifestly contrary to the best interests of the child; allow the child to express their views; c) give due weight to the views expressed by the child."
In Turkish law, the Supreme Court rules that children must be heard in accordance with international conventions in custody and visitation rights cases and annuls lower court decisions that do not take the statements of children of discernment age.
It should be noted that in cases where the child cannot express their true desire due to pressure or influence from the parties, the child's statements should be evaluated along with their overall behavior, relationships with the parents, and the conditions of both the child and the parents.
Although the age of discernment varies with the child's mental development, it is generally considered to be around eight years old. The child's statements are one of the most critical factors in the judge's decision in both determining and changing custody. At this point, the family court judge should hear the child in the presence of a psychologist, pedagogue, and social worker to ascertain the child's clear and accurate will. If there is no suspicion that the child's decision is made under influence or pressure, the judge should decide in a way that aligns most closely with the child's wishes and ensures the child's best interest.
While the child's statements are significant for the judge, it should be remembered that the judge is not bound by these statements and can decide contrary to the child's wishes if it better protects the child's interest.
Joint Custody
Joint custody means that both parents share the rights, powers, and responsibilities regarding the child’s custody. Joint custody has been accepted in many foreign legal systems for years.
Although joint custody decisions by lower courts in Turkish law are limited, the İzmir 4th Family Court made a landmark joint custody decision, emphasizing the best interest of the child.
In the İzmir 4th Family Court decision, 2009/448 E., 2009/470 K., dated 27.05.2009:
“…the parties’ mutual child, born on ../../2007, E.’s custody rights are to be exercised jointly by both parents.”
In the case at hand, the parties applied for an uncontested divorce based on Article 166/3 of the Turkish Civil Code and agreed on joint custody of their mutual child. The court, considering the child's best interest and the parents' agreement and wishes, decided on joint custody.
Although the common practice in Turkish law is to grant custody to one parent after divorce, recent years have seen joint custody decisions where the parents agree to share custody. However, voluntariness is essential in joint custody, making it crucial for the parents to agree. Joint custody in contested divorces can perpetuate disputes between the parents and negatively impact the child's psychological and emotional well-being.
In the Supreme Court's 2nd Civil Chamber decision, 2012/21186 E., 2013/7440 K., dated 19.03.2013:
“The institution of 'joint custody' is not regulated in Turkish law; it has relative effects. Article 336/2-3 of the Turkish Civil Code, which regulates the custody situation after divorce or separation, is a 'relatively imperative' provision. Therefore, the court cannot decide on joint custody ex officio. However, if the parents have an agreement on this matter, and this agreement is not contrary to the child's best interest, the court can decide on joint custody and determine with which parent the child will reside.”
The Supreme Court historically rejected foreign joint custody decisions by applying Article 5 of the Private International and Procedural Law No. 5718, which states that foreign legal provisions that are contrary to Turkish public order are not applicable. However, the Supreme Court’s 2nd Civil Chamber decision, 2016/15771 E., 2017/1737 K., dated 20.02.2017, reversed this longstanding practice:
“Considering the above-mentioned internal law and the concept of public order, it is not possible to say that 'joint custody' arrangements are 'clearly' contrary to Turkish public order or violate the fundamental structure and fundamental interests of Turkish society.”
The most crucial basis for this change is the principle of the “best interest of the child,” regulated by Article 3 of the United Nations Convention on the Rights of the Child, to which Turkey is a party, and Protocol No. 7 of the European Convention on Human Rights, which allows for joint custody and entered into force in Turkey on August 1, 2016. Article 5 of Protocol No. 7 states:
“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage, and in the event of its dissolution. This article shall not prevent states from taking such measures as are necessary in the interests of the children.”
The Ankara Regional Court of Justice's 1st Civil Chamber decision, 2017/121 E., 2017/601 K., dated 10.05.2017, is another significant decision serving as a precedent in domestic law. The Supreme Court, regional courts of justice, and other local courts refer to Article 5 of Protocol No. 7 in joint custody decisions. According to Article 90 of the Turkish Constitution, international agreements duly put into effect have the force of law. In case of a conflict between the provisions of an international agreement on fundamental rights and freedoms and the provisions of domestic law, the provisions of the international agreement shall prevail. Therefore, although domestic laws foresee granting custody to one parent, joint custody can be granted based on protocol provisions.
Decisions currently rely on the parties' agreement or voluntariness.
Criteria Considered by the Judge in Custody Arrangements in Divorce Cases
In divorce cases, the family court judge will decide the custody based on criteria determined by precedents and the specifics of the case. The judge is granted broad discretion in determining custody. The primary criterion that the judge cannot overlook is the principle of the child's best interest.
Evaluating and determining the best interest of the child requires procedural safeguards. The justification for every decision must clearly reflect that this right was considered.
Child's Age: The Supreme Court has ruled in numerous cases that custody of a young child needing maternal care and affection is generally given to the mother. However, this is not an absolute rule. If serious and convincing evidence proves that staying with the mother will hinder the child's development, the custody of very young children can be given to the father. When the child's best interest necessitates it, custody can be given to the father, even for a child who still needs breastfeeding. These are exceptional cases and may arise if the mother has a contagious disease or a mental condition that could harm the child. The general rule is that custody of children under three years old, especially those needing maternal care and affection, is given to the mother.
Whether the mother and/or father has the opportunity and time to personally care for the child.
Whether one of the parents offers the child a chance to live in a family environment post-divorce.
The interest of the mother and/or father in the child and their willingness to assume custody.
The ability of the mother and/or father to educate the child.
The child's accustomed environment.
The fault status of the mother and/or father in the divorce.
Not separating siblings.
The child's moral and social development.
The child's gender.
These criteria are not exhaustive and have evolved through court decisions. In evaluating these criteria and arranging custody, it is crucial for the judge to listen to the parents and the child in court or in the presence of a committee consisting of a psychologist, pedagogue, and social worker to fully and accurately understand the parties' intentions.
The purpose of arranging custody in cases of separation and divorce is to protect the child's future interests, meaning the primary goal in custody arrangements is to protect the child's interest and secure their future. The Supreme Court has emphasized this in its decisions and mentioned the criteria considered in custody arrangements.
In the Supreme Court's General Assembly on Civil Law decision, 2010/2-649 E., 2010/683 K., dated 22.12.2010:
“…any event that hinders the child's physical and mental development and is understood to be ongoing should be assessed by evaluating the severity of the danger and the irreparable consequences it may cause; the child's best interest should be the primary consideration in determining and arranging custody. In this context, the child's gender, birth date, educational status, with whom the child is currently living, whether the requesting party is involved in the child's education, the child's health, and the healthcare opportunities provided by the party seeking custody should be considered. The characteristics of the parents should also be taken into account. Therefore, the court should consider whether the parent has left the child with someone else, neglected or abandoned the child, whether there are guiding issues, whether the parent is requesting custody, whether there is any indication of violence, infidelity, economic situation, occupation, living environment, bad behavior, alcohol dependence, health, and erratic behavior. In addition to these considerations, the court should ensure that the child’s accustomed environment is not changed as much as possible and that siblings are not separated. It should also evaluate whether staying with the parent awarded custody will hinder the child’s physical, intellectual, and moral development and whether the existence of immediate danger has been proven with serious and convincing evidence.”
Custody disputes can severely impact the child's psychological and emotional state due to potential conflicts between the parents. Therefore, it is advisable to conduct the process with the assistance of a specialized attorney.
Frequently Asked Questions
Will custody change if the child wishes so?
The United Nations Convention on the Rights of the Child, Article 12, and the European Convention on the Exercise of Children's Rights, Articles 3 and 6, stipulate that children of discernment age must be heard and given due weight in matters concerning them. The Supreme Court rules that children must be heard in accordance with international conventions in custody and visitation rights cases and annuls lower court decisions that do not take the statements of children of discernment age. The child's statements are one of the most critical factors in the judge's decision in both determining and changing custody.
In which situations will custody not be granted to the mother?
Although there is no definitive answer to this question, custody can be granted to the father in specific situations, even for children needing maternal care. Examples of situations where the mother might not be granted custody include: the mother has health issues that prevent her from caring for the child, the mother is legally incompetent or has a mental condition that could harm the child, the mother leads an immoral life, the mother is addicted to drugs, the mother is imprisoned, the mother abuses the custody right, or the mother tries to disrupt the emotional bond between the child and the father. In such cases, custody will not be granted to the mother or may be revoked.
What are the rights of the father if the child is in the mother’s custody?
Even if the child’s custody is granted to the mother by a court decision, the father still has the right to visit the child, communicate and bond with the child, request the establishment of personal relations with the child, contribute to the child's needs, and participate in the child’s education and care expenses. Most importantly, the father can request a change of custody.
Can a child with the mother’s custody use the mother’s surname?
One of the significant issues arising from custody cases within the context of the child's best interest principle is when the child continues to use the father's surname despite being under the mother's custody. When the mother and child have different surnames, confusion can occur in daily life. To address this issue, judicial unity has been sought. For example, in its decision, the Supreme Court’s 2nd Civil Chamber, 2021/4603 E., 2021/6276 K., dated 20.09.2021, permitted the child to use the mother’s surname, prioritizing the child's best interest.
Which court is responsible for changing custody?
When joint children’s custody is concerned, and a case is to be filed, the Family Court should be approached. In places without Family Courts, the Civil Courts of First Instance handle the case. Since the change of custody falls under non-contentious jurisdiction, unless otherwise provided by law, the competent court is the one in the place where the requesting party or one of the relevant parties resides. There is no mandatory jurisdiction rule in custody change cases.
These cases, handled through a simplified trial procedure, conclude quickly. The process involves filing the petition and response, and after the pleadings are complete, the judge may decide on the case over the file or set a hearing date.
Can custody be granted to grandparents?
Custody is an exclusive right granted only to the parents and cannot be given to anyone else, except in the case of adoption. An example of this can be seen in the Supreme Court's 2nd Civil Chamber decision, 2008/3782 E., 2008/8892 K., dated 18.06.2008. If the child's best interest requires, custody can be transferred to another parent, or custody can be revoked, and a guardian can be appointed for the child, depending on the circumstances.
Who gets custody of a child born out of wedlock?
According to Article 337 of the Turkish Civil Code, if the child is born out of wedlock, custody belongs to the mother. In every case, the maternal lineage is established at birth, and the child’s out-of-wedlock status does not affect the mother-child relationship. Therefore, the mother does not need a court decision to have custody of the child. Birth alone establishes the maternal lineage. The paternal lineage is established if the father marries the mother, acknowledges the child, or if a court decision establishes the lineage. Additionally, adoption can establish the paternal lineage.
Can custody be granted to a non-working parent?
While the child's best interest is the primary criterion in custody, financial status is not an absolute requirement. What matters is which parent can best support the child's physical and mental development. Even if the mother or father does not work, they can request alimony for themselves and child support for the child if they face poverty due to the end of the marriage.
Can a custody case be filed without a divorce?
In cases where the spouses live separately or have a separation order without a divorce, they can request a temporary custody arrangement as a precaution under Articles 197/4 and 336/2 of the Turkish Civil Code. An example of this can be seen in the Supreme Court's 2nd Civil Chamber decision, 2015/16299 E., 2016/3071 K., dated 22.02.2016.
Who gets custody in a divorce due to adultery?
In cases of adultery, the existence of the act will only be a fault reason in the divorce case. It is not possible to conclude that the cheating spouse cannot be granted custody. In divorce cases based on adultery, the primary criterion in determining custody will be the child's best interest. The family court will consider this during its examination and decide on custody. The cheating spouse will be granted custody if it best serves the child's interest.
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