What is Custody in Family Law?
The scope of custody rights in family law is regulated in Article 339 of the Turkish Civil Code as follows:
“The mother and father shall make and implement the necessary decisions regarding the care and education of the child, taking the child’s best interests into account.
The child is obliged to obey the mother and father.
The mother and father shall provide the child, according to their maturity, with the opportunity to organize their life;
they shall take the child’s opinion into account as much as possible on important matters.
The child may not leave the home without the consent of the mother and father, nor may the child be taken from them without legal cause.
The mother and father shall give a name to the child.”
Accordingly, the right of custody is granted to the surviving parent in the event of the death of one parent (Article 336/3 of the Turkish Civil Code), and in cases of divorce, to the parent awarded custody. It is intended to ensure the upbringing, personal development, and protection of the various interests of the minor joint child. Therefore, the child’s care, safety, health, education, and instruction fall under the responsibility of the parent holding custody, in a manner that serves the child’s best interests.
What is Joint Custody in Family Law?
As a general rule in Turkish law, joint custody is not ordinarily accepted; however, it has been applied by courts within the framework of evolving legal and social issues. Therefore, the concept and application of joint custody are particularly reflected in court decisions and case law.
Accordingly, in joint custody, all necessary interests and responsibilities concerning the child are shared between both parents. In this regard, parents with joint custody are jointly responsible for all matters concerning the child, such as the child’s education, care, moral and religious upbringing. Additionally, issues such as which parent the child will live with and the scheduling of personal visits are determined according to the provisions of an agreement or protocol.
Joint Custody Agreement
A joint custody agreement is a written arrangement that can be established between parents during or after the divorce process. As a rule, this agreement must take into account and protect the principle of the child’s best interests.
In a joint custody agreement, all necessary rights and obligations concerning the child must be addressed individually. Accordingly, the agreement should cover the child’s personal information, residence, education, health, financial expenses and support, legal representation, personal and social development, and other relevant interests.
What is the Principle of the Child’s Best Interest?
The principle of the child’s best interest is foreseen as cited in Article 3 of the UN Convention on the Rights of the Child:
“Those who make laws and implement practices concerning children must prioritize the best interests of the child. The state shall take measures to ensure that those responsible for the protection and care of children fulfill their responsibilities and shall monitor whether they do so.”
Consequently, the child’s best interest encompasses prioritizing the child’s physical, mental, emotional, and social development in all matters concerning them, and ensuring that any actions taken are conducted in a manner most favorable to the child’s welfare.
Conditions Required for Granting Joint Custody
a. Best Interest of the Child
Joint custody can be granted by the court only if it is in the best interest of the child. Therefore, if joint custody would conflict with the child’s physical, mental, emotional, or social development, a joint custody decision will not be made.
b. Parental Consent and Cooperation for Joint Custody
The granting of joint custody depends on both parents agreeing to it. As a result, joint custody is generally applied in practice in uncontested or amicable divorce cases rather than in contentious ones.
c. The Child’s Opinion
Another requirement for a joint custody decision is obtaining the opinion of the child who has reached an age of discernment. In practice, the Court of Cassation recognizes this age as 8 years and above. Regarding this matter, the General Assembly of the Court of Cassation, in its decision dated 27.06.2018, 2017/3117 Esas, 2018/1278 Karar, stated:
“Since the granting of custody to the mother or father primarily concerns the child and relates to their best interests, both the provisions of Article 12 of the United Nations Convention on the Rights of the Child and Articles 3 and 6 of the European Convention on the Exercise of Children’s Rights, as well as the relevant legal regulations on custody, require that if the child has reached an age of discernment, they should be consulted and their opinion should be obtained regarding matters that directly affect them. In the present case, the joint child, Efe, whose custody modification was requested, was 8 years old at the time of the lawsuit, 10 years old at the time of the decision, and 12 years old at the time the annulment decision was issued, and the child was at an age of discernment throughout all stages of the case.”
d. Social Investigation Reports
Before deciding on joint custody, the court may seek opinions from experts such as pedagogues, psychologists, and social service specialists. Additionally, the court can request social investigation reports that evaluate whether a suitable environment is provided for the child and assess the child’s psychological condition.
e. Absence of Circumstances That Could Prevent Joint Custody
There may be certain circumstances that could prevent a court from granting joint custody. Examples of such circumstances include the child being subjected to physical or psychological violence or abuse by one of the parents.
Termination of Joint Custody
Joint custody may be terminated if the parents are unable to maintain it or if at least one of them fails to fulfill their obligations. To terminate joint custody, an application must be submitted to the family court in the jurisdiction where the child resides.
Competent and Authorized Court in Custody Cases
In cases regarding the termination or modification of custody, the competent court is the family court, while the authorized court is the court in the jurisdiction where the defendant resides. In this context, the parties may require the assistance of a lawyer, such as a lawyer in Antalya, to file the relevant application.
Frequently Asked Questions
1. How Can a Child Be Taken Abroad Under Joint Custody?
If one of the parents who holds custody under joint custody wishes to take the child abroad, this is possible only with the written consent of the other parent, who will not be traveling, provided in the presence of a notary. It should be noted that if the mentioned consent is not granted, the parent may request permission from the court to take the child abroad.
2. With Whom Does the Child Live Under Joint Custody?
Similar to regular custody, under joint custody the child lives with one of the parents while maintaining a personal relationship with the other parent through designated visitation days. Therefore, the mother and father with whom the child resides continue to have equal rights over the child within the marriage.
3. How Are Visitation Days Determined in Joint Custody?
As mentioned above, joint custody is usually arranged through an uncontested divorce agreement, but it can also be established by a separate contract. Accordingly, visitation days, including specific dates and times, are determined according to the terms of the agreement or protocol established by the parents. Additionally, if the child’s best interests in a particular case require the removal of certain visitation days or modifications to the schedule, the necessary adjustments are made by the presiding judge.
4. What Can Be Done If the Child Is Not Shown in Joint Custody?
As mentioned, in addition to having joint custody rights, the parent who does not live with the child has the right to establish a personal relationship with the child. However, if the other parent obstructs this right—by refusing to show or hand over the child—the parent can take legal action through enforcement to see the child, apply to the court to request the other parent be penalized, and/or file a custody lawsuit to have custody granted to them.
5. Can Alimony Be Requested in Joint Custody?
In joint custody, child support (maintenance) can be requested by the parent who is responsible for the child’s care if they are unable to meet the child’s financial needs due to their income. In this regard, the court, when deciding on alimony, takes into account the financial situation of both parents as well as the needs of the joint child.
Some Supreme Court Decisions on Joint Custody and the Best Interests of the Child
- “The court did not seek the opinions of Emirhan, born in 2004 and of discernment age, regarding custody. Furthermore, no investigation was conducted into the living conditions of the mother and father or the care facilities available for the children to determine the best interests of the children. Based on the evidence collected, it was understood that the parties had been living separately for a long time. Accordingly, the court should have conducted an investigation into the living conditions of the parties through experts appointed under Article 5 of Law No. 4787; the mother and father should have been heard directly by the court, if necessary, to provide information about their economic and social situation and childcare capabilities; and the joint child of discernment age should have been heard directly by the court to obtain their opinion on custody. The court should have assessed all the evidence together and, based on the outcome, arranged for temporary custody as a precaution under Articles 197/last and 336/2 of the Turkish Civil Code. Issuing a written decision on this request without following these procedures was incorrect and required annulment.” (Supreme Court, 2nd Civil Chamber, 04.05.2016, Case No. 2016/8661, Decision No. 2016/9147)
- “According to the explanations regarding our domestic law and the concept of public order mentioned above, when evaluating the concrete case, it cannot be said that the arrangement of ‘joint custody’ is clearly contrary to Turkish public order or violates the fundamental structure and essential interests of Turkish society. Therefore, the court should have considered the custody provisions in the domestic laws of the parties, who are British citizens, in accordance with Article 17/1 of the International Private and Procedural Law (MÖHUK), examined the merits of the case, evaluated all the evidence together, and rendered a decision regarding the request for ‘joint custody.’ Issuing a written judgment by merely stating that the request was contrary to Turkish public order was incorrect and necessitated annulment.” (Supreme Court, 2nd Civil Chamber, 20.02.2017, Case No. 2016/15771, Decision No. 2017/1737)
- “It is understood that the defendant mother and the joint child came to Turkey in September 2015 with the purpose of settling there together, and that the father, who filed the return application, submitted his application on 28.09.2015. In the court, the joint child stated that he wished to stay in Turkey with his mother, that he could go to … if his mother went there, that he had been in constant contact with his father since arriving in Turkey, and that whenever his father came to Turkey, he also went to … to meet with his father. Considering Article 3 of Law No. 5717 on the Legal Aspects of International Child Abduction, there is no claim or evidence that, prior to the return application, a foreign court had placed the child under the joint custody of the parents, granted the mother sole authority to determine the child’s residence, or that the mother prevented the father from having personal contact with the child. Therefore, it cannot be said that the child was abducted or wrongfully retained. Accordingly, although the return request should have been rejected, the decision by the … Regional Court of Appeal, 2nd Civil Chamber, to return the child to … Country was incorrect and required annulment.” (Supreme Court, 2nd Civil Chamber, 29.11.2018, Case No. 2018/7114, Decision No. 2018/13831)
- “1- Upon examination of the appellant’s objections regarding the joined case; the joined case filed by the plaintiff-counter defendant mother concerns the removal of joint custody, granting custody to the mother, the establishment of personal contact between the father and the joint children, and the request for child support. This is a non-contentious judicial matter (Code of Civil Procedure, Article 362/2-b-13). Decisions rendered by the Regional Court of Appeal in non-contentious judicial matters are final and cannot be appealed (Code of Civil Procedure, Article 362/1-ç). Therefore, the appeal request of the defendant-plaintiff regarding the joined case must be rejected. 2- As for the examination of the appellant’s objections concerning the main case of the plaintiff-counter defendant; in light of the case file, the evidence on which the decision is based, the lawful reasons, and the absence of any error in the assessment of evidence, it is necessary to reject the unfounded appeal objections and confirm the decision as procedurally and legally proper.” (Supreme Court, 2nd Civil Chamber, 27.06.2018, Case No. 2018/3738, Decision No. 2018/8266)
- “In the present case, following the trial conducted by the First Instance Court regarding the divorce cases filed reciprocally by the parties; since both parties were found equally at fault, both cases were accepted, resulting in the divorce of the parties, custody being granted to the mother, establishment of personal contact with the father, acceptance of the woman’s requests for provisional, participation, and alimony payments, and rejection of her compensation claims. Upon the appeal of the parties’ attorneys, the Regional Court of Appeal dismissed the appeals on the merits. Subsequently, upon further appeal, the Regional Court of Appeal ruled that the man’s appeal would be considered as not filed, and regarding the woman’s appeal, the Supreme Court, by its decision dated 14.09.2023, partially accepted the objections of the plaintiff-counter defendant woman’s attorney, determining fault in her favor, rejecting the compensation claims, and overturning the First Instance Court’s decision concerning the amount of alimony, while confirming the sections outside the scope of the reversal. Accordingly, the provisions that were not appealed or confirmed despite appeal became final. In the trial conducted by the First Instance Court in accordance with the reversal, the court should have ruled solely in accordance with the reversal decision. However, disregarding the sections that had become final outside the scope of the reversal and those not appealed, the court issued a new judgment regarding divorce, custody, provisional and participation alimony, personal contact arrangements, and attorney fees, which was incorrect and necessitated reversal.” (Supreme Court, 2nd Civil Chamber, 29.04.2025, Case No. 2025/1575, Decision No. 2025/4312)
