Pursuant to Article 323 of the Turkish Civil Code; each parent has the right to request the establishment of an appropriate personal relationship with a child who is not under their custody or has not been left in their care. The same right may also be granted to third parties in exceptional circumstances, provided that it is in the best interest of the child (TCC Art. 325).
The right granted by the legislator to parents or third parties to establish a personal relationship with the child is not absolute and is subject to certain limitations. These limitations are regulated under Article 324 of the Turkish Civil Code. The relevant provision states:
TCC Art. 324: “Each parent is obliged to refrain from harming the other parent’s relationship with the child and from obstructing the child’s education and upbringing.
If the child’s well-being is endangered due to the personal relationship, or if the parents exercise this right in a manner contrary to the obligations set forth in the first paragraph, or if they fail to seriously engage with the child, or if other significant reasons exist, the right to establish a personal relationship may be denied or revoked.
(Added third paragraph: 24/11/2021-7343/38) If the parent who has custody of the child fails to fulfill the requirements of the personal relationship arrangement, custody may be changed, provided that it is not contrary to the child’s best interest. This matter is notified to the parties in the decision regarding the establishment of a personal relationship.”
It is stated that each parent is obliged to refrain from harming the other parent’s relationship with the child and from obstructing the child’s education and upbringing, and that, in the presence of reasons requiring revocation of the right, a decision regarding the personal relationship with the child may be revoked.
Similarly, Article 325/2 of the TCC provides: “The limitations stipulated for parents shall be applied to third parties by analogy,” clarifying that the restrictions imposed on parents under Article 324 are also applicable to third parties.
Reasons for Termination of Personal Relationship
The purpose of establishing a personal relationship is to ensure that the child develops healthily according to their age and needs. Therefore, parents or third parties with whom a personal relationship is established must consider the child’s needs and provide an environment conducive to their development. However, this is not always adequately ensured, or it may be neglected over time.
The legislator has taken into account the potential neglect and shortcomings that may arise in the future and, in accordance with the principle of the best interest of the child, has regulated Article 324 of the Turkish Civil Code. This provision states that in cases where the child’s physical and psychological development is endangered, serious risk factors exist, or circumstances necessitate the revocation of this right, a decision may be made to terminate the personal relationship with the child. The main reason why a personal relationship with the child is not considered an absolute right and is subject to certain limitations is the best interest of the child.
Reasons for terminating or restricting a personal relationship with a child may include physical and psychological abuse, failure to comply with designated time periods, neglect of the child, disregard for education, disruption of the child’s schooling, exposure to environments or conditions threatening the child’s health, emotional or sexual abuse, or the child’s refusal of the personal relationship.
Legal Procedure for Termination of Personal Relationship
The primary and most important consideration in establishing a personal relationship is the best interest of the child. For this reason, even if the court has established a personal relationship between the child and a parent or third party, the court may revoke the personal relationship at any time in accordance with changing circumstances. Indeed, decisions to establish a personal relationship do not constitute a final judgment in a material sense.
During the proceedings, the judge conducts the necessary investigations, evaluates the evidence related to the claims, and, if the child is of an age to understand, directly hears the child’s views. The judge may also request an expert report and, taking all these factors into account, issues a ruling in accordance with the best interest of the child.
Indeed, in its decision dated 19.09.2022, the 2nd Civil Chamber of the Court of Cassation stated:
“…The main case was filed by the plaintiff-defendant mother with a request to establish a non-residential personal relationship in the event that the personal relationship could not be terminated, while the counterclaim filed by the defendant-plaintiff father sought an increase in the personal relationship periods and, in the joined case, a change of custody… During the first-instance proceedings, the plaintiff-defendant mother reported that on 18.10.2020, the defendant-plaintiff father physically abused the child, resulting in swelling around the child’s eyes, and that the child had been physically abused by his father for not going to buy bread. Consequently, a criminal case was initiated. In the course of the trial, based on the child’s statements, submitted photographs, and the medical report of assault, the father was convicted on 09.03.2021 (with the postponement of the announcement of the verdict), as evident from the file. Considering this, since the child is of an age to understand, the court should have directly heard the child and evaluated the expert reports, witness statements, and criminal case together, taking the entire file into account, and rendered a decision regarding whether the personal relationship between the defendant-plaintiff father and the child should be residential and the duration of such relationship. The fact that the court issued a written decision without such evaluation constitutes a procedural and legal violation and necessitates annulment…” (2022/6407 E., 2022/7186 K.)
This ruling emphasizes that in proceedings concerning the termination of a personal relationship with a child, if the child is of an age to understand, the child must be directly heard and an expert report must be obtained.
Similarly, in another decision dated 14.01.2019, the 2nd Civil Chamber of the Court of Cassation emphasized that a social investigation report prepared within the case file must be of sufficient quality to support a ruling on personal relationships; otherwise, the report cannot be relied upon as a basis for the judgment.
“…The plaintiff and the defendant were divorced, and custody of their joint children – … born in 2009, Rüzgar born in 2012, and Liya born in 2014 – was awarded to the plaintiff mother, while a residential personal relationship was established between the children and the defendant father. The decision was finalized on 27.11.2015. Evidence collected shows that after the divorce, the defendant father abducted the plaintiff mother and the children … and Rüzgar, adversely affecting the children, including Efe developing a stutter and Rüzgar being too frightened even to go to the bathroom. The social investigation report obtained by the court indicates that the children told the expert that they did not want to see their father, who had been violent toward their mother, abducted them, and locked them in a dark room. Furthermore, the file shows that the defendant father sent messages threatening to take the children from the mother and that there are multiple criminal cases against him.
According to the report prepared by the court-appointed expert psychologist, due to allegations of physical and psychological abuse, and to prevent further harm to the children’s physical and psychological health as well as to avoid any situations that may pose risk, it was deemed more appropriate to suspend the personal relationship between the children and the father until the conclusion of the case, and to make a permanent assessment after obtaining the father’s oral statements. However, no additional report was obtained, and the court relied solely on this report when issuing its decision.
The fundamental principle to be considered when regulating personal relationships is the “best interest” of the children. In determining the best interest of the children, their physical, mental, psychological, moral, and social development must be safeguarded. The social investigation report prepared was insufficient to establish a ruling regarding the personal relationship. In this situation, pursuant to Article 5 of Law No. 4787 on the Establishment, Duties, and Procedures of Family Courts, the family court should have requested an investigation and report from experts within the court – including psychologists, pedagogues, and social workers – by meeting with both parents and the children. This investigation should have examined whether there were any obstacles to the defendant’s exercise of personal relationship, evaluated the plaintiff’s allegations and their impact on the children, and considered all other evidence before issuing a decision regarding the personal relationship. Issuing a ruling based on incomplete investigation and research was incorrect and necessitated annulment…” (2018/7999 E., 2019/49 K.)
The lawsuit for the termination of a personal relationship with a child is not subject to any time limitation. Since the primary consideration is the best interest of the child, the termination of the personal relationship may be requested at any time if there is any risk or danger concerning the child’s health, safety, education, or development. However, in order for the decision to be enforced, it must be finalized. (CCP Art. 367/2)
“…The enforcement basis stated in the judgment was that custody of the joint child, born on 20.02.2008, which had been granted to the mother, was transferred to the father, and a personal relationship was to be established between the mother and the child. This decision was finalized on 14.01.2015, and based on this judgment, the mother initiated enforcement proceedings through Enforcement Order No. 3. During the execution of the instruction sent to the Kayseri Enforcement Office regarding the establishment of a personal relationship, the father presented the decision of the Kayseri 4th Family Court dated 07.04.2016, which terminated the personal relationship with the mother. As a result, the Enforcement Office did not carry out the enforcement, and the mother applied to the Enforcement Court for annulment of this action.
The first-instance court ruled that since the personal relationship had been terminated, the creditor mother’s initiation of enforcement was in bad faith and dismissed the complaint. The plaintiff then appealed this decision. The Regional Court of Justice ruled that, although legal actions concerning the termination of a personal relationship with a child fall under “Family Law,” they do not create any change in the parties’ personal or family legal status and, in substance, only regulate the relationship between the child and the parents. Since such rulings are not ancillary to the divorce judgment and do not require finalization for enforcement, and the portion of the enforcement judgment regulating the personal relationship with the child had been nullified by the Kayseri Family Court, enforcement was not possible. Accordingly, the appeal was rejected on its merits. The ruling was then appealed by the creditor.
Pursuant to Article 367/2 of the Turkish Code of Civil Procedure (CCP No. 6100), provisions concerning family and personal law cannot be enforced until they are finalized. Judgments regarding the delivery of a child and the establishment of a personal relationship with the child cannot be executed until finalized (Baki Kuru, Handbook of Enforcement and Bankruptcy Law, 2013, 2nd edition, pp. 923-924). Similarly, a decision terminating a personal relationship cannot be enforced before it is finalized.
In the present case, at the time of enforcement, the Kayseri 4th Family Court’s decision dated 07.04.2016 and numbered 2016/7.9 E. – 2016/2.3 K. was presented, which terminated the mother’s personal relationship rights with the child, taking into account the child’s best interests. This decision had not yet been finalized due to appeal. Therefore, since a decision terminating a personal relationship cannot be enforced before finalization, the enforcement of the judgment establishing a personal relationship should not have been stopped. The first-instance court’s dismissal of the complaint was therefore incorrect, and the decision rejecting the appeal should have been overturned, resulting in the annulment of the first-instance court’s judgment…”
(Yargıtay 12th Civil Chamber, 2018/7775 E., 2019/8815 K., 22.05.2019)
COMPETENT AND JURISDICTIONAL COURT
In cases concerning the termination of a personal relationship with a child, the competent court is the Family Court. In locations where a Family Court does not exist, the Civil Court of First Instance acts as the Family Court. The court having jurisdiction is the court of the child’s place of residence. (TCC Art. 326)
Decisions of the Court of Cassation
“…The plaintiff-counter-defendant mother, who holds custody, filed a lawsuit to terminate the personal relationship, alleging that the personal relationship established between the child and the other party (father) disturbed the child’s peace, that the defendant-counter-plaintiff threatened to kill her, had poor communication with the child, misled the child regarding education, and was constantly angry and tense. The defendant-counter-plaintiff father argued that the claims were baseless and that the mother had prevented the child from maintaining a personal relationship for one year, requesting that the personal relationship be reestablished.
The court, noting that the father had insulted and slapped the child, dismissed the claim for termination of the personal relationship. However, it decided to limit the personal relationship between the father and the child to the first Saturday of each month from 09:00 to 17:00 and on the second day of religious holidays from 09:00 to 17:00.
According to Article 324/2 of the Turkish Civil Code, the right to personal relationship may be revoked if the child’s well-being is endangered, if the parents exercise their right contrary to the obligations set forth in paragraph (1) of Article 324, if they do not seriously engage with the child, or if other significant reasons exist.
The parties’ joint child was born in 2004. Investigation and collected evidence indicate that the mother resides in the Netherlands and the father resides in Turkey. Under the existing personal relationship arrangement, the father can maintain a residential personal relationship with the child only for 15 days in July each year. There is no sufficient evidence to suggest that the father has exercised this right contrary to its purpose, nor is there evidence that the child’s peace is seriously endangered due to the personal relationship.
Both the child and the parents have the right to establish and maintain a regular personal relationship. For a child whose parents are separated, having and maintaining a regular personal relationship with both parents is a right of the child as well as the parents. The personal relationship may only be restricted or terminated if required by the child’s best interest. Accordingly, the request to further restrict the personal relationship should also have been dismissed, and the court’s written decision to the contrary is deemed incorrect…”
(Yargıtay 2nd Civil Chamber, 2016/6094 E., 2016/7564 K., 13.04.2016)
“…In the present case, although the defendant father displayed negligent behavior by failing to deliver the child on time during the personal relationship, it is understood that these actions were not severe enough to warrant the complete termination of the personal relationship between the child and the father. For this reason, fully terminating the personal relationship would not have been in the best interest of the child.
The court should have restructured the personal relationship by reasonably limiting the previously established contact between the child and the father, taking into account the father’s negligent behavior. Completely severing the relationship and causing the child to become alienated from the father was therefore deemed incorrect and required annulment of the lower court’s decision…”
(Yargıtay 2nd Civil Chamber, 2016/11968 E., 2016/11699 K., 14.06.2016)
“…The plaintiff, who holds custody, filed a lawsuit to terminate the personal relationship, alleging that the personal relationship established between the child and the other party (father) disturbed the child’s peace, that the defendant used narcotics, and was indifferent to the child. The plaintiff requested termination of the personal relationship, or, if not accepted, limitation of its duration and establishment of the relationship under expert supervision. The court, noting that the child did not wish to maintain the personal relationship and referred to her father as ‘that person,’ decided to terminate the personal relationship.
According to Article 324/2 of the Turkish Civil Code, the right to a personal relationship may be revoked if the child’s well-being is endangered, if the parents exercise this right contrary to the obligations set forth in paragraph (1) of Article 324, if they do not seriously engage with the child, or if other significant reasons exist.
The parties’ joint child was born in 2002. There is no sufficient evidence that the defendant, who has been granted the right of personal relationship, exercised this right contrary to its purpose, nor is there evidence that the child’s well-being was seriously endangered due to the personal relationship. Both the child and the parents have the right to establish and maintain a regular personal relationship. For a child whose parents are separated, maintaining a regular relationship with both parents is a right of the child as well as the parents. The personal relationship may only be restricted or terminated if required by the child’s best interest.
The social investigation report regarding the father and the report prepared by the 4th Forensic Medicine Specialized Board of the Forensic Medicine Institute, dated 30.09.2015, indicated that there was no obstacle preventing the father from maintaining a personal relationship with the child. The social investigation report regarding the mother and child, dated 18.12.2014, was prepared unilaterally without consulting the father and based on the child’s statements. The file contains no evidence corroborating the child’s statements. As such, this report is not sufficient to justify revoking or restricting the defendant’s right of personal relationship. Accordingly, the lawsuit should have been dismissed, and the written decision of the court is deemed incorrect…”
(Yargıtay 2nd Civil Chamber, 2016/6087 E., 2016/7572 K., 13.04.2016)
“…The child and their parents each have the right to establish and maintain a regular personal relationship with one another. Such a personal relationship may only be restricted or prevented if it is required by the child’s best interest. If maintaining a personal relationship with either parent without supervision is not in the child’s best interest, arrangements for supervised or alternative forms of personal contact may be made (European Convention on Establishing Personal Relations with Children, Art. 4).
Accordingly, unsupervised direct personal contact between the child and a parent is the norm. Supervised contact may be provided only if required by the child’s best interest. In the present case, there is no evidence or reason indicating that supervised personal contact is necessary for the child’s well-being. Without considering this, establishing personal contact under the supervision of a pedagogue or psychologist is deemed inappropriate.
When regulating personal relationships, the child’s interests, particularly in terms of health, education, and morality, must be prioritized. The child in this case was born on 20.01.2011. The personal relationship established by the court does not adequately satisfy paternal feelings, nor does it allow the child to experience the father’s love. Accordingly, the personal relationship between the father and the child should have been arranged for a more appropriate duration and without supervision. The court’s written decision to the contrary is therefore deemed incorrect…”
(Yargıtay 2nd Civil Chamber, 2016/15134 E., 2016/13899 K., 20.10.2016)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
