WHAT IS A CHILD CUSTODY CASE IN TURKEY?
A custody case in Turkey is a type of legal action specific to Turkish family law, filed for the purpose of determining which parent shall be granted custody of a minor child or whether an existing custody arrangement should be modified. This lawsuit primarily arises in cases of divorce and separation and aims to determine which parent will be responsible for the child’s care, protection, education, and legal representation.
Under the Turkish Civil Code, the right of custody in Turkey encompasses the rights and obligations related to the child’s care, education, protection, and legal representation, and cannot be taken away from the mother or father without a lawful and justified reason. Custody lawsuits in Turkey are heard before the family courts with the objective of safeguarding the child’s physical, mental, and social development, and throughout the judicial process, the best interests of the child constitute the fundamental guiding principle.
Custody of a child in Turkey is not limited solely to matters concerning the child’s personal status, but also includes responsibilities related to the child’s property and financial rights. During the period of custody, both parents are obliged to provide for the child’s maintenance, ensure the child’s education, and raise the child as a healthy individual capable of adapting to society. In separation or divorce proceedings, the primary purpose of custody arrangements is not to balance the competing interests of the parents, but rather to secure the child’s present and future living conditions.
In conclusion, a custody case in Turkey is a protective and regulatory legal action aimed at improving the child’s current living conditions and safeguarding the child’s future. In this process, the child’s superior best interests take precedence over the parents’ claims, and judicial assessment is shaped entirely in accordance with this principle.
How to File a Child Custody Lawsuit in Turkey?
In Turkey, custody of a child may be requested together with a divorce lawsuit, or it may be filed as an independent lawsuit after the divorce judgment has become final, provided that the circumstances have changed and a rearrangement of custody is required. A custody lawsuit in Turkey is initiated by submitting a statement of claim to the competent and authorized family court, asserting legitimate grounds that necessitate the modification or removal of the existing custody arrangement.
In the statement of claim, it must be clearly and reasonedly explained why the current custody arrangement no longer serves the best interests of the child, taking into account the specific circumstances of the case.
How Long Does a Child Custody Lawsuit in Turkey Take?
The duration of custody lawsuits in Turkey varies depending on several factors, including the court’s workload, the scope of the case file, the process of collecting evidence, and the time required for the preparation of social investigation reports. In practice, such lawsuits in Turkey are generally concluded within approximately 1–2 years, although this period may be extended depending on the particular circumstances of the case.
In order to prevent unnecessary prolongation of the proceedings and to avoid outcomes contrary to the child’s best interests, it is essential that custody lawsuits are conducted with due care and professional expertise. For this reason, obtaining legal support from an experienced family law attorney from the very beginning of the process contributes both to the prevention of procedural rights losses and to the more effective and orderly conduct of the case.
Court Jurisdiction in Child Custody Cases in Turkey
Pursuant to Law No. 4787 on the Establishment, Duties, and Procedures of Family Courts, the competent court in custody-related disputes in Turkey is the family court. In locations where no family court exists, civil courts of first instance hear such cases acting in the capacity of a family court.
As a general rule, the authorized court is the court of the defendant’s place of residence. However, since no rule of exclusive jurisdiction is prescribed for custody lawsuits in Turkey, it is also possible for the plaintiff to file the lawsuit before the court of their own place of residence. This flexibility is particularly important for the determination of the child’s location and for ensuring that the judicial proceedings are conducted in a manner consistent with the child’s best interests.
Interim Legal Protection Measures In Custody Cases In Turkey
In custody disputes in Turkey, it is possible to apply for interim legal protection measures in order to safeguard the child, particularly in view of the potential length of judicial proceedings. In divorce cases or during proceedings for the modification of custody, the court may issue a temporary custody order that remains in force until the final judgment is rendered. Interim measures in Turkey do not constitute a final ruling; however, in practice, they are highly influential, as they shape the child’s actual living arrangements during the course of the proceedings.
In addition, the court may order measures such as placing an annotation on the child’s passport, imposing a ban on international travel, or temporarily regulating personal contact (visitation) in order to prevent the child from being taken abroad. Especially in custody disputes involving international elements, such measures are of vital importance in preventing irreparable harm.
Criteria Considered In Determining Custody In Turkey
In custody arrangements in Turkey, the judge renders a decision based on the principle of the child’s best interests. Within this framework, multiple criteria are evaluated collectively, including the child’s age, physical and psychological development, the parents’ living conditions, their ability to provide care and educational opportunities, the child’s social environment, and, where appropriate, the child’s own views. Custody decisions in Turkey are shaped not by the parents’ demands, but by what will secure the child’s healthy development and future.
In custody lawsuits in Turkey, since custody is considered a matter of public order, the judge is not bound by the parties’ claims and acts in accordance with the principle of ex officio investigation. In this context, the judge evaluates social investigation reports, opinions of pedagogues and psychologists, witness statements, and all forms of evidence related to the child’s living conditions when rendering a decision. The same principle applies in lawsuits for the modification or removal of custody in Turkey, with the child’s best interests remaining at the center of the decision-making process.
In custody arrangements in Turkey, hearing the child’s opinion is of particular importance, especially for children who possess sufficient capacity of understanding. According to the case law of the Court of Cassation (Yargıtay), as a general rule, it is mandatory to hear the views of children aged eight and above, and rendering a custody decision without hearing children within this age group constitutes a violation of procedural law and statutory provisions. Nevertheless, while the child’s statement is not binding on the judge in Turkey, it is regarded as a significant factor that must be taken into consideration when determining the child’s best interests.
WHAT IS A LAWSUIT FOR THE MODIFICATION OF CUSTODY IN TURKEY?
A lawsuit for the modification of custody in Turkey is a family law action aimed at the reconsideration of an existing custody arrangement where, after custody has been granted to one of the parents, new circumstances arise that adversely affect the child’s best interests. This type of lawsuit is evaluated within the scope of Articles 183 and 349 of the Turkish Civil Code and has a protective and regulatory character focused on the protection of the child.
Although lawsuits for the modification of custody in Turkey are subject to the simplified procedural rules under procedural law, the court cannot render a decision solely on the basis of the case file. This is because custody disputes are matters of public order, and the principle of ex officio investigation applies in such cases. Accordingly, the judge is obliged to conduct a comprehensive examination by jointly evaluating the statements of the parties, social investigation reports, expert opinions, and the child’s own views.
During the judicial proceedings in Turkey, the judge benefits from the opinions of experts such as pedagogues, psychologists, and social workers, and orders detailed assessments of the parties’ living conditions. If the child has reached an age and level of understanding sufficient to express their views in a healthy manner, the child is personally heard by the court. However, the child’s statements do not bind the judge; where a conflict arises between the child’s expressed wishes and the child’s best interests, the principle of the child’s best interests prevails.
What Are The Conditions For The Modification Of Child Custody In Turkey?
In Turkey, the modification of a child’s custody becomes an issue where substantial and permanent changes occur after the establishment of custody, provided that such changes necessitate the protection of the child’s best interests. In this context, a lawsuit for the modification of custody in Turkey may be filed where custodial duties are not properly fulfilled or where the child’s physical, psychological, or social development is endangered.
The changes relied upon must be permanent rather than temporary, and must be of a nature that directly affects the child’s life. The judge evaluates, by taking into account the specific circumstances of the case, whether the existing custody arrangement continues to serve the child’s best interests.
What Are The Grounds For The Modification Of Custody In Turkey?
The main grounds that may lead to the modification of custody in Turkey can be summarized as follows:
- The remarriage of the mother or father, in itself, does not constitute sufficient grounds for the modification of custody. However, if the new marriage results in the neglect of custodial duties, adversely affects the child, or aggravates the child’s living conditions, a modification of custody may come into consideration.
- A change in the place of residence of the mother or father, particularly in cases of long-term relocations or moves abroad, may justify a modification of custody where such relocation negatively affects the child’s care, education, or personal development.
- In the event of the death of the parent holding custody, custody does not automatically pass to the other parent in Turkey. In such cases, the judge determines to whom custody shall be granted, taking into account the child’s best interests.
Other Grounds For The Modification Of Custody In Turkey
In practice, other circumstances that may justify the modification of a child’s custody in Turkey include:
- Systematic obstruction of personal contact (visitation) between the child and the other parent,
- Leaving the child in the care of third parties for extended periods,
- The child becoming in need of protection in terms of health, education, morality, or safety,
- The custodial parent displaying indifferent, neglectful, or careless behavior toward the child.
What Are The Consequences Of The Modification Of Custody In Turkey?
Where a decision is rendered for the modification of custody in Turkey, such decision gives rise to various legal consequences. First and foremost, arrangements are made regarding the establishment of personal contact (visitation) between the parent whose custody rights have been revoked and the child. In determining the scope and manner of such personal contact, the court takes into consideration the child’s age, educational status, and social life.
In addition, with respect to the parent who is not granted custody, an obligation to pay child support (participation alimony) arises under Turkish law. Child support in Turkey is awarded for the purpose of contributing to the child’s care and education expenses and, as a general rule, becomes effective as of the date on which the court decision becomes final.
WHAT IS THE SCOPE OF CUSTODY RIGHTS IN TURKEY?
In Turkey, the right of custody is regulated under Article 335 and the subsequent provisions of the Turkish Civil Code and constitutes the entirety of rights and obligations covering the protection of the child’s personal and property rights, the provision of care and education, and the exercise of legal representation. In this respect, custody in Turkey goes beyond being a mere authority granted to parents and represents a public-oriented family law institution serving the protection of the child.
The scope and manner of exercising custody rights in Turkey are primarily determined within the framework of Article 339 and the following provisions of the Turkish Civil Code. These regulations define the limits of custodial authority and establish the principles governing its exercise.
1. General Principles Regarding Custody Rights In Turkey
- The Principle of the Child’s Best Interests: The fundamental principle governing the exercise of custody rights in Turkey is the protection of the child’s best interests. When making decisions regarding the child’s care, education, accommodation, and overall development, parents are obliged to prioritize the child’s physical, mental, and moral development, rather than their own personal preferences or interests.
- The Obligation of Respect Toward Parents: Under the Turkish Civil Code, the child is obliged to show respect to and obey the mother and father. However, this obligation does not grant parents the right to exercise custody arbitrarily or abusively. In Turkey, custodial authority may not be exercised in a manner that violates the child’s personality rights.
- The Child’s Right to Organize Their Own Life: Parents must respect the child’s right to organize their own life, provided that such respect is compatible with the child’s age and level of maturity. Especially in matters relating to education, social life, and personal development, the child’s views must be taken into consideration. This approach reflects the modern understanding of custody, which supports the child’s development as an individual.
- The Child’s Inability to Leave the Family Home: A child may not leave the family residence without the consent of the parents or the legal representative. This rule aims to ensure the protection of the child and the child’s development within a safe and stable environment.
- The Principle of Not Separating the Child from the Parents: As a rule, a child may not be separated from the mother and father. However, in the presence of legally justified and compulsory reasons—such as divorce, separation, custody disputes, neglect, or abuse—separation may be possible. In such cases, the judge takes the necessary measures based on the child’s best interests.
- Determination of the Child’s Name: The child’s name is determined jointly by the mother and father who hold custody. This constitutes a significant example of the joint exercise of custody rights.
- Decision to Live Abroad with the Child: The parent who holds custody may, provided that the child’s best interests are respected, decide to live abroad together with the child. In such cases, the parent who does not hold custody does not have the right to file a return (restitution) lawsuit solely on the basis of the child’s relocation abroad. However, if this authority leads to consequences that amount to an abuse of custody rights, it remains subject to judicial review.
In conclusion, custody rights in Turkey do not merely constitute an area of authority granted to parents; rather, they represent a legal responsibility primarily designed to protect the child’s rights and ensure the child’s healthy development. Accordingly, parents are obliged to exercise their custodial powers in good faith, in a proportionate manner, and in line with the child’s best interests. In cases where custody rights are abused in Turkey, the judge may intervene to restrict, modify, or revoke custody.
2. Care And Education Of A Child Under Custody
In Turkey, when making decisions regarding the care and education of a child under custody, the child’s best interests are accepted as the fundamental criterion. The mother and father are obliged to exercise due care, within the scope of their economic and social means, in order to ensure the child’s physical, mental, psychological, moral, and social development. This obligation aims to safeguard the upbringing of the child as a healthy individual.
Taking into account the child’s age and level of maturity, respect must be shown for the child’s right to organize their own life. Especially in matters such as education, health, and social life, which directly affect the child’s future, consulting the child’s opinion is regarded as a requirement of the modern understanding of custody. Nevertheless, in Turkey, the child is obliged to obey and follow the guidance of the mother and father who exercise custody rights.
The mother and father are required to support not only the child’s physical development, but also the child’s mental, emotional, and moral development. Where the child has a physical or mental disability, care and education must be provided in a manner appropriate to the child’s abilities and tendencies. Such circumstances do not narrow the scope of custodial obligations; on the contrary, they give rise to a heightened duty of care.
3. Religious Education Of A Child Under Custody
The authority to make decisions regarding a child’s religious education belongs to the mother and father within the scope of custody rights in Turkey. Any agreements or special arrangements that restrict or eliminate this authority are not considered legally valid. However, this authority is not absolute and may not be exercised in a manner that violates the child’s personality development or fundamental rights.
Once the child reaches the age of majority, they acquire the right to freely choose their own religious belief. From this stage onward, the parents’ authority to direct the child’s religious education comes to an end, and the child’s own will becomes decisive.
4. Representation And Legal Capacity Of A Child Under Custody In Turkey
Within the scope of custody in Turkey, the mother and father are authorized to represent the child in legal transactions before third parties. This authority of representation covers both daily and legal transactions, including school enrollment, course applications, medical procedures, and participation in sports or artistic activities.
Pursuant to Article 342 of the Turkish Civil Code, the provisions of guardianship law concerning the representation of restricted persons are applied by analogy to matters relating to the representation of the child. Likewise, Article 343 of the Turkish Civil Code makes a reference to guardianship provisions with respect to the child’s legal capacity. Within this framework, in Turkey, the child is personally liable for their own debts with their own assets, and the parents’ authority to manage the child’s property does not eliminate this liability.
5. Representation Of The Family By The Child And Legal Transactions With The Parents
A child who possesses the capacity of discernment may, with the consent of the mother and father, carry out legal transactions on behalf of the family. However, as a general rule, the mother and father are held liable for the debts arising from such transactions.
Where a legal transaction between the child and the parents results in the child assuming a debt, such transaction is subject to the approval of the judge and the appointment of a guardian ad litem (curator) for the child. If these conditions are not fulfilled, the transaction remains valid; however, the debt obligation shall rest with the parents rather than the child. This regulation aims to protect the child’s economic interests and to prevent potential conflicts of interest.
REMOVAL AND RESTRICTION OF CUSTODY IN TURKEY
In Turkey, the right of custody is not an absolute or unlimited right, but rather a set of authority and obligations granted to parents for the purpose of protecting the child’s best interests. In this context, pursuant to Article 348 of the Turkish Civil Code, the removal of custody may come into consideration where custodial duties are not duly fulfilled or where custody rights are abused.
The removal of custody in Turkey, unlike the modification of custody, results in the complete termination of the parent’s custody rights. Where a parent engages in serious neglect toward the child, physical or psychological violence, insulting or fraudulent behavior, or other conduct that endangers the child’s physical or mental development, or where the parent persistently fails to perform parental duties, the court may decide to remove custody in Turkey.
Where custody is removed in Turkey, the appointment of a legal guardian for the child becomes necessary. However, such a decision is not absolute or irreversible. If the circumstances that led to the removal of custody cease to exist, a request for the restoration of custody may be filed. In this respect, the removal of custody in Turkey constitutes an exceptional and last-resort legal measure aimed at the protection of the child.
The removal or restriction of custody in Turkey does not produce any consequences under inheritance law. Even if custody rights have been removed, the child does not lose the status of a legal heir of their ascendants. Unless the inheritance is renounced by the child, the inheritance passes to the child, and the child retains full heirship rights over immovable property and all other assets as a statutory heir.
ESTABLISHMENT OF PERSONAL RELATIONSHIP BETWEEN THE CHILD AND THE SPOUSE WHO IS NOT GRANTED CUSTODY IN TURKEY
In divorce or separation proceedings in Turkey, the spouse who is not granted custody of the child has the right to request the establishment of a personal relationship with the child. This right is recognized for the purpose of preserving the emotional bond between the parent and the child and supporting the child’s healthy development, and it is assessed within the framework of the principle of the child’s best interests.
Pursuant to Article 182 of the Turkish Civil Code, the court is obliged to regulate the personal relationship between the child and the spouse who is not granted custody even if no such request is made by the parties in its decision on divorce or separation. Although this regulation falls within the court’s discretionary power, it is determined by taking into account the child’s age, educational status, social environment, and the living conditions of the parents.
Pursuant to Article 182/2 of the Turkish Civil Code:
“The court shall warn in its decision that, in the event of non-compliance with the requirements of the personal relationship arrangement, custody may be modified, provided that this does not contradict the best interests of the child.”
Under this regulation, court decisions regarding the establishment of personal relationships in Turkey are binding. The parent who has custody of the child is obliged to comply with the personal relationship arrangement determined by the court. Violation of this obligation may give rise not only to enforcement measures, but also to the re-evaluation and possible modification of custody.
Indeed, in practice in Turkey, where the custodial parent systematically prevents the child from seeing the other parent, acts contrary to court decisions, obstructs personal contact, or renders such contact practically impossible, it is accepted that the child’s best interests are harmed, and courts may decide on the modification of custody. In such cases, the obstructive conduct of the custodial parent is regarded as an indication that the custody duty is not being properly fulfilled.
The establishment of a personal relationship between the child and the spouse who is not granted custody in Turkey is not only a right of the parent, but also a reflection of the child’s right to maintain healthy relationships with both parents. For this reason, violations of personal relationship arrangements, which may negatively affect the child’s psychological and social development, are subject to serious legal sanctions under Turkish law. In resolving such disputes, courts prioritize the child’s best interests, rather than the conflict between the parents.
IN WHICH CASES IS CUSTODY OF THE CHILD GRANTED TO THE MOTHER IN TURKEY?
In divorce proceedings in Turkey, the determination of which parent will be granted custody of the child is made by taking the best interests of the child as the fundamental principle. In this assessment, the child’s age, physical and psychological development, the parents’ living conditions, their ability to provide care and education, and the emotional bond between the parent and the child are evaluated together.
In practice in Turkey, particularly for young children who require greater maternal care and affection, there is a tendency to grant custody to the mother, provided that there is no circumstance preventing the mother from fulfilling her custodial duties. This approach is based on the importance of the natural bond between the mother and the child and the role of maternal care in the child’s early developmental stages.
Where the child has reached a certain age and level of cognitive maturity, the court also takes the child’s opinion into consideration when making a custody arrangement. Although the child’s statement regarding whether they wish to live with the mother or the father is not binding on the judge, it is regarded as an important criterion in the decision-making process. In this context, if the child clearly expresses a wish not to live with the father and there is no obstacle to the mother assuming custody, it is frequently observed in practice that custody is granted to the mother.
In uncontested (mutual) divorce cases in Turkey, the parties’ agreement on custody is not binding on the court. Pursuant to the Turkish Civil Code, the judge is obliged to ex officio examine the custody agreement and assess whether it complies with the best interests of the child. Especially in cases where the child is of a very young age, even if the parties agree that custody should be granted to the father, the judge may award custody to the mother if required by the child’s best interests. In such circumstances, if the parties’ agreement is not approved, the uncontested divorce may turn into a contested divorce.
The remarriage of the custodial mother or father, by itself, does not constitute a ground for granting custody to the mother or for modifying existing custody. However, if the remarriage negatively affects the child’s living conditions, leads to neglect of care or educational needs, or harms the child’s psychological development, the court may take this situation into account in the custody evaluation.
In conclusion, granting custody of the child to the mother in Turkey is neither automatic nor absolute. It is determined on a case-by-case basis, in line with what the best interests of the child require. Courts focus not on the gender of the parents, but on which parent can provide a more stable, secure, and healthy living environment for the child.
IN WHICH CASES IS CUSTODY OF THE CHILD NOT GRANTED TO THE MOTHER IN TURKEY?
In Turkey, custody is an institution related to public order, and the primary objective in custody disputes is the protection of the child’s health, education, moral, and social development. Within this framework, granting custody to the mother in Turkey is not a rule, but rather a result that must be assessed in each individual case based on the best interests of the child. If it is determined that the mother is unable to properly fulfill her custodial duties, custody will not be granted to the mother.
In judicial practice and legal doctrine in Turkey, the main circumstances in which custody is not granted to the mother are evaluated as follows:
The Mother’s Lifestyle Negatively Affecting the Child’s Development
If it is established through concrete evidence that the mother’s lifestyle negatively affects the child’s moral, psychological, or social development, custody may not be granted to the mother in Turkey. The decisive factor here is not interference with the mother’s private life, but whether the relevant lifestyle harms the best interests of the child. Judicial assessment must be based not on assumptions, but on the actual conditions to which the child is exposed.
Abuse of Custodial Rights by the Mother
The mother’s use of her custodial rights in a manner contrary to the child’s interests constitutes one of the significant grounds for not granting custody to the mother in Turkey or for modifying existing custody. In this context, the mother’s systematic obstruction of personal contact between the child and the father, deliberately hindering the child’s relationship with the other parent, or acting in violation of court decisions may be considered as abuse of custodial duties.
The Child’s Opinion and Preference
If the child has reached a certain age and level of discernment, the court takes into account the child’s statement regarding which parent they wish to live with. Where the child clearly and consistently expresses a wish to live with the father, and it is established that there is no obstacle preventing the father from assuming custody, custody may not be granted to the mother. However, the child’s statement is not decisive on its own and must be evaluated together with the best interests of the child.
If the mother has not reached the age of majority, this creates a legal presumption that she cannot properly fulfill custodial duties. Therefore, as a rule, custody cannot be granted to a minor mother. In such cases, the court evaluates the parent capable of ensuring the child’s care and protection, or, where necessary, third parties.
In conclusion, not granting custody of the child to the mother in Turkey is based not on the mother’s parental status, but on an assessment of her capacity to fulfill custodial duties within the framework of the concrete circumstances. Courts make their decisions independently of the parents’ gender, focusing on their sense of responsibility, the safe and stable living environment they can provide, and their ability to meet the child’s physical and emotional needs. In all cases, the decisive criterion is the best interests of the child.
IN WHICH CASES IS CUSTODY OF THE CHILD GRANTED TO THE FATHER IN TURKEY?
In Turkey, the granting of custody to the father during divorce or separation proceedings is not based on any hierarchy or presumption between the parents, but rather on the determination of the child’s best interests in each concrete case. Within this framework, the primary consideration is identifying which parent can best ensure the child’s physical, mental, emotional, and moral development.
In judicial practice in Turkey, the main circumstances that may lead to custody being granted to the father are evaluated as follows:
The Mother’s Failure to Properly Fulfill Custodial Duties
If it is established that the mother is insufficient in fulfilling her custodial obligations or uses custody in a manner contrary to the child’s interests, granting custody to the father in Turkey may come into question. In this regard, behaviors negatively affecting the child’s health, education, or moral development are assessed by the court on the basis of concrete evidence.
The Child’s Opinion and Preference
Where the child has reached a certain age and level of discernment, the court takes into account the child’s statement regarding which parent they wish to live with. If the child freely and consistently expresses a wish to live with the father, and there is no legal or factual obstacle preventing the father from assuming custody, granting custody to the father in Turkey may be considered necessary for the child’s best interests.
Parental Agreement and the Court’s Ex Officio Review
In Turkey, the parents’ agreement to leave custody with the father is not sufficient on its own. Even in cases of amicable (consensual) divorce, the court is obliged to review custody arrangements ex officio. If there is no impediment to the father’s fulfillment of custodial duties and the arrangement is compatible with the child’s best interests, custody may be granted to the father.
Abuse of Custodial Rights by the Mother
The mother’s use of custody in a manner contrary to the child’s welfare—in particular, obstructing personal contact between the father and the child, acting in violation of court decisions, or alienating the child from the other parent—may constitute grounds for granting custody to the father or modifying an existing custody arrangement.
The Child’s De Facto Living Arrangement
Where the child actually lives with the father, where the child’s education is closely connected to the father’s place of residence, or where the father provides a more stable and consistent living environment, the existing custody arrangement may no longer serve the child’s best interests. In such cases, custody may be transferred from the mother to the father.
In conclusion, granting custody of the child to the father in Turkey is assessed within the framework of the father’s parental capacity, his ability to meet the child’s needs, and the secure physical and emotional environment he can provide. Courts make their decisions without gender-based distinctions, basing their judgments in each individual case on the paramount principle of the child’s best interests.
THE LEGAL CONNECTION BETWEEN CUSTODY, CHILD SUPPORT, AND PERSONAL RELATIONSHIP IN TURKEY
In Turkey, custody, child support (participation alimony), and the establishment of personal contact between the child and the non-custodial parent are not independent legal institutions under Turkish family law. On the contrary, they are closely interconnected legal mechanisms serving the protection of the child’s material and moral well-being. The fact that custody in Turkey is granted to one parent does not eliminate the other parent’s right to maintain a personal relationship with the child, nor does it terminate the obligation to pay child support borne by the parent who does not hold custody. These obligations exist independently of the parents’ personal interests and are based directly on the principle of the child’s best interests.
As a rule, the non-payment of child support or spousal support in Turkey, by itself, does not constitute sufficient grounds for changing custody. This is because the violation of a maintenance obligation primarily gives rise to enforcement proceedings and legal sanctions, which are mechanisms designed to remedy such breaches. However, a long-term, systematic, and intentional failure to fulfill child support obligations may indicate that the parent is indifferent to the child’s material needs and fails to comply with parental responsibilities. In such cases, the court does not assess the non-payment of child support in isolation; rather, it evaluates this conduct together with the parent’s overall attitude and behavior, and determines whether a change of custody is required within the framework of the child’s best interests.
Similarly, where the custodial parent obstructs personal contact between the child and the other parent, arbitrarily or maliciously restricts this right, or engages in conduct that alienates the child from the other parent, such behavior may be regarded as an abuse of custodial rights in Turkey. These actions not only negatively affect the child’s emotional and psychological development, but also violate the child’s right to maintain healthy relationships with both parents.
In the well-established case law of the Turkish Court of Cassation (Yargıtay), it is consistently emphasized that the systematic prevention of personal contact between the child and the other parent by the custodial parent is manifestly contrary to the child’s best interests. Where such circumstances exist, it is accepted that the modification or restriction of custody in Turkey may come into question. This approach is a natural reflection of the understanding that custody in Turkey is not merely a right, but primarily a responsibility aimed at serving the best interests of the child.
ENFORCEMENT OF CUSTODY DECISIONS IN TURKEY AND PRACTICAL PROBLEMS ENCOUNTERED
In Turkey, the enforcement of court decisions regarding custody and the establishment of personal contact with the child stands out as one of the most problematic areas of legal practice. In particular, under the former system in Turkey, child delivery procedures carried out through enforcement offices often involved the forced transfer of the child, which created serious risks to the child’s psychological integrity and emotional development. This situation clearly demonstrated that the implementation of custody and personal contact decisions in Turkey based solely on a coercive enforcement logic may lead to outcomes contrary to the principle of the child’s best interests.
In order to address these problems, significant structural reforms have been introduced in Turkey in recent years, and the enforcement of decisions concerning child delivery and personal contact has been removed from the jurisdiction of enforcement offices and transferred to the Judicial Support and Victim Services (ADM) Centers. Under the current system in Turkey, parties apply to ADM Centers instead of enforcement offices for the execution of custody and personal contact decisions, and child delivery procedures are carried out in the presence of qualified professionals, such as pedagogues, psychologists, and social workers.
The primary objective of this new system implemented through ADM Centers in Turkey is to prevent the child from becoming a passive object of the dispute between the parents and to ensure that the enforcement process is conducted in a manner that does not harm the child’s mental health. Within this framework, methods appropriate to the child’s age, level of development, and psychological condition are adopted, and coercive and traumatic practices are avoided as much as possible. The use of force is considered only in exceptional cases and strictly as a last resort.
This transformation in the enforcement of custody decisions in Turkey has once again demonstrated that custody and personal contact decisions are not merely legal in nature, but also have social, pedagogical, and psychological dimensions. Indeed, legal doctrine in Turkey frequently emphasizes that, in order for custody decisions to be effectively implemented in line with the child’s best interests, the enforcement mechanism must be approached from an interdisciplinary perspective, and that mandatory professional support constitutes an essential element of this process.
In conclusion, the child delivery system carried out through ADM Centers in Turkey reflects a modern, child-centered approach that places the child’s best interests at its core, and represents a significant step toward reducing the structural problems encountered in the enforcement of custody decisions. However, in order to enhance the effectiveness of this system, it is of great importance to standardize the practice nationwide, increase the number of qualified professionals, and strengthen preventive mechanisms aimed at informing and guiding parents.
IS JOINT CUSTODY POSSIBLE UNDER CHILD CUSTODY LAW IN TURKEY?
Joint custody is a custody model in which custody rights concerning the child are exercised simultaneously and jointly by both the mother and the father, and fundamental decisions regarding the child’s education, health, place of residence, and social life are taken by mutual consent. Under this system, parents share the rights, powers, and obligations arising from custody and jointly guide the child’s development.
In Turkish law, the traditional approach has been to award custody to only one parent—either the mother or the father—following divorce. Indeed, the Turkish Civil Code does not contain an explicit provision regulating joint custody. However, as a result of interpretations based on the European Convention on Human Rights, the United Nations Convention on the Rights of the Child, and the constitutional principle of equality, it has increasingly been accepted that joint custody may be applied in Turkey under certain conditions.
In the recent case law of the Court of Cassation (Yargıtay), a growing tendency can be observed recognizing that joint custody is possible where it is required by the child’s best interests and where the parties’ mutual will exists.
Conditions for Joint Child Custody in Turkey
For a joint custody decision to be rendered in Turkey, the judge must evaluate the following conditions cumulatively:
- The Child’s Best Interests: The most fundamental and indispensable condition of joint custody in Turkey is that the arrangement must be compatible with the child’s best interests. The judge must assess, in light of the specific circumstances of the case, whether joint custody will positively affect the child’s physical, mental, emotional, and social development.
- Agreement Between the Parties and Capacity for Cooperation: Joint custody requires a minimum level of communication and cooperation between the parents. Where there are intense and ongoing conflicts between the parties, joint custody may lead to outcomes detrimental to the child. For this reason, joint custody is generally considered where the parents expressly agree on this arrangement.
- Taking the Child’s Opinion: The opinion of a child who has reached the age of discernment must be taken into account pursuant to the Turkish Civil Code and international conventions. Considering the child’s age, maturity, and psychological condition, the child’s views on joint custody may be assessed, where necessary, with the assistance of pedagogues, psychologists, or social investigation reports.
What Are The Advantages of Joint Custody in Turkey?
The practice of joint custody offers several advantages that enable the child to maintain healthy and continuous relationships with both parents:
- Increased Parental Involvement: Both parents actively participate in the child’s life.
- Sharing of Responsibilities: Joint decision-making ensures a more balanced distribution of parental responsibilities.
- Culture of Cooperation: Joint custody may reduce conflict by encouraging communication and compromise between parents.
- Emotional Security: The child’s sense of not being abandoned by either parent constitutes a significant gain in terms of emotional stability.
What Are The Disadvantages of Joint Custody in Turkey?
Despite its significant advantages, joint custody may also entail certain risks and practical difficulties:
- Deadlock in Decision-Making Processes: In cases of serious disagreements between parents, reaching decisions on matters such as education, medical treatment, or residence may become difficult and may result in harmful consequences for the child.
- Psychological Impact on the Child: In some cases, joint custody may lead the child to develop unrealistic expectations that the parents will reunite, potentially causing psychological distress.
- Practical Problems Encountered in Turkey: Situations such as urgent medical interventions, school changes, or international travel requiring the consent of both parents may, in practice, lead to delays and disruptions.
Joint Custody Regulation in Turkish Law
In Turkish law, the institution of custody is primarily regulated under Articles 335 et seq. of the Turkish Civil Code. Although there is no explicit provision in the Code regarding joint custody, it is clearly established that the fundamental purpose of custody is to ensure the protection, care, and healthy development of the child.
According to the Turkish Civil Code, as long as the marriage continues, custody is exercised jointly by the mother and the father (Article 336 TCC). However, in the event of divorce, the literal wording of the law is based on the principle that custody shall be granted to one of the spouses. This approach led to a long-standing practice in Turkish law whereby joint custody after divorce was considered legally impossible.
Nevertheless, beyond a purely literal interpretation of the Turkish Civil Code, a teleological interpretation based on the purpose and systematic structure of the law demonstrates that the ultimate aim of custody is the protection of the child’s best interests. Within this framework, doctrinal opinions arguing that custody does not necessarily have to be awarded to a single parent following divorce have increasingly gained strength.
International conventions to which Türkiye is a party, particularly the United Nations Convention on the Rights of the Child and the European Convention on Human Rights, guarantee the child’s right to establish and maintain personal relations with both parents. In particular, Article 3 of the Convention on the Rights of the Child mandates that the best interests of the child shall be a primary consideration in all actions concerning children.
Pursuant to Article 90 of the Turkish Constitution, these international conventions form an integral part of domestic law and are directly taken into consideration by judges in disputes relating to custody. This constitutional framework has significantly influenced judicial interpretations concerning the applicability of joint custody in Turkish law.
In its recent decisions, the Court of Cassation (Yargıtay) has adopted an approach whereby joint custody may be granted, provided that the parties expressly request it and that such an arrangement is compatible with the best interests of the child. In particular, the absence of serious conflict between the parents, as well as their ability to communicate and cooperate, are regarded as decisive factors in granting joint custody. In this respect, the jurisprudence of the Court of Cassation reflects an evolution in Turkish family law from a rigid custody model toward a more flexible, child-centered approach.
Joint custody is not an absolute model that can be applied in every case. In the presence of intense disputes between the parents, lack of communication, violence, neglect, or circumstances that may harm the child’s psychological integrity, the application of joint custody is not feasible. In such cases, awarding custody to a single parent may lead to more appropriate outcomes in terms of the child’s best interests.
Accordingly, joint custody should be regarded as an exceptional arrangement, applicable only following an assessment based on the specific circumstances of each case and grounded in the child’s well-being.
Although joint custody in Turkish law is not based on an explicit statutory provision, it has become de facto applicable through international conventions, constitutional principles, and the evolving case law of the Court of Cassation. Where cooperation between parents is possible and the child’s best interests can be more effectively protected through such cooperation, joint custody constitutes an important instrument of modern family law.
Future legislative amendments explicitly and systematically incorporating joint custody into the Turkish Civil Code would be of significant importance in eliminating practical uncertainties and enhancing legal predictability.
Joint Custody in Amicable Divorces in Turkey
In amicable divorce proceedings in Turkey, where the parties reach a mutual agreement on joint custody concerning their child, the court may approve such arrangement provided that it finds the arrangement to be in accordance with the best interests of the child. In this context, joint custody in Turkey is regarded as an acceptable model not merely based on the parties’ declarations of intent, but on the condition that both parents are able to actually and equally fulfill all rights, powers, and obligations arising from custody.
Where a joint custody decision is rendered in Turkey, parents are obliged to jointly make decisions regarding fundamental matters affecting the child’s education, health, place of residence, and daily life. In practice, this may give rise to certain practical difficulties, particularly during official procedures where the consent of both parents is required, or in urgent situations where the decision-making process may be delayed. For this reason, joint custody in Turkey constitutes a form of custody that necessarily requires effective communication and cooperation between the parties.
Although the general rule under the Turkish legal system is that, in the event of divorce, custody is awarded to one of the spouses, the practice of joint custody has begun to be accepted as an exceptional arrangement in light of the influence of international conventions and the case law of the Court of Cassation (Yargıtay). Within this framework, it must be assessed in detail whether joint custody contributes positively to the child’s physical, psychological, and social development, as well as factors such as the level of harmony between the parents, their sense of responsibility, and the sustainability of the arrangement.
As custody in Turkey is a legal institution related to public order, even though the parties may reach an agreement on custody during an amicable divorce process, it is not possible to create a binding custody arrangement through a marital agreement or a prenuptial contract. Such arrangements are legally invalid under Turkish law, and the court is obliged to examine the custody arrangement ex officio, without being bound by the will of the parties, and to render a decision based solely on the best interests of the child.
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:
- 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.
- 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.
- 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.
- 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:
- 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.
- 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.
