What is Custody Rights?
Custody rights are granted to the surviving parent in the event of the death of one parent (Turkish Civil Code, Article 336, paragraph 3), or to the parent who is awarded custody in the case of a divorce, for the purpose of raising, developing, and protecting the interests of their underage joint child. Under this right, the care, safety, education, and upbringing of the child or children fall under the responsibility of the relevant parent in a manner that serves the child’s best interests. Additionally, custody includes the rights, duties, powers, and obligations related to the child’s personality and property.
The scope of custody is explained in Article 339 of the Turkish Civil Code as follows:
The child’s name is given by the mother and father.”
“The mother and father make and implement the necessary decisions regarding the care and education of the child while considering the child’s best interests.
The child is obliged to obey the mother and father.
The mother and father allow the child to manage their life according to their maturity and, in important matters, take the child’s opinion into account as much as possible.
The child cannot leave home without the consent of the mother and father and cannot be taken from them without a legal reason.
Custody Lawsuit and Modification of Custody
A custody lawsuit is filed by the parent who does not have custody of the child, aiming to obtain custody from the parent who currently holds it. In this context, the judge may decide to modify custody either upon the request of one of the parties or on their own initiative.
Furthermore, if the court rules for a change of custody as a result of the lawsuit, the parent who is not granted custody is no longer obligated to pay child support, also known as alimony for the child’s care.
Termination of Custody
The issue of revoking custody from the parent who holds it is regulated in Article 349 of the Turkish Civil Code (TCC) as follows:
“If other measures for the protection of the child prove ineffective or are understood in advance to be insufficient, the judge shall decide to revoke custody in the following cases:”
- The inexperience, illness, absence, or similar reasons of the mother or father that prevent them from properly fulfilling their custody duties.
- The failure of the mother or father to show adequate care for the child or their severe neglect of obligations towards the child. If custody is revoked from both parents, a guardian is appointed for the child. Unless otherwise stated in the decision, the revocation of custody applies to all existing and future children.
The Competent and Authorized Court in Custody Cases
In cases concerning the termination or modification of custody, the competent court is the family court, while the authorized court is the court of the defendant’s place of residence. In this regard, the parties may require the assistance of a lawyer, such as an attorney in Antalya, to file the relevant request.
Frequently Asked Questions
1.When Can a Custody Modification Case Be Filed?
A custody modification case can be filed at any time by the parent who does not have custody rights. Therefore, there is no statute of limitations or time restriction for this matter.
2.Can Custody Rights Be Waived?
A parent cannot waive their custody rights, as custody is considered a non-waivable right. Accordingly, any agreements to the contrary are legally invalid and do not produce any legal effect or consequence.
3.How Does the Judge Decide Custody and to Whom?
When determining which parent will have custody, the judge primarily considers the child’s age, which parent the child wishes to live with, and the socio-economic conditions of both parents. The judge evaluates these factors to make a decision regarding the assignment or modification of custody.
4.Can a Custody Case Be Filed Again if Rejected?
If a custody case is rejected, the plaintiff always has the right to file the case again. However, it is usually more appropriate to wait for some time to pass or for circumstances to change before refiling the custody case.
5.Is the Parent Without Custody Obliged to Contribute to the Child’s Expenses?
The 3rd Civil Chamber of the Court of Cassation, in its decision dated 26.01.2017, Case No. 2015/19212, Decision No. 2017/662, stated:
“According to Article 182/2 of the Turkish Civil Code (TCC), the spouse who is not granted custody is obliged to contribute to the child’s care and education expenses in proportion to their financial capacity. The parent who does not have custody is responsible for contributing to the joint child’s expenses according to their economic means. Furthermore, when determining child support, while taking into account the economic situation of both parents, the reasonable expenses arising from the efforts and responsibilities of the parent who has custody must also be considered. However, care must be taken to ensure that the expenses used as the basis for calculating support remain within reasonable limits, and the parent without custody should not be subjected to excessive burdens.”
Accordingly, the parent who does not have custody is also legally obliged, under the rules of parent-child relations, to contribute to the child’s expenses.
6.What Happens if a Child Does Not Want to Meet the Parent Who Does Not Have Custody?
As with custody, the statements of a child over the age of 8 (the age of discernment) are taken into account by experts regarding the right to establish a personal relationship. Therefore, if the child does not want to meet the parent who does not have custody, the relevant parent’s right to establish a personal relationship with the child is revoked.
In this regard, the 2nd Civil Chamber of the Court of Cassation, in its decision dated 14.12.2015, Case No. 2015/7575, Decision No. 2015/23897, stated:
“The joint child, whose custody was granted to the mother, was born in 2004 and is of discernment age. During the hearing, the child was examined by the experts assigned by the court and stated that they did not wish to meet with their father. When establishing personal relationships with children, not only the satisfaction of maternal and paternal feelings but also the child’s physical, intellectual, and moral development, as well as their best interests, must be considered. Such a request can be made at any time over the years. Considering the fault of the parties, the expert report, the opinion expressed by the joint child of discernment age, and the child’s best interests, personal contact with the plaintiff father should not have been established at this stage (TCC, Art. 324). Therefore, the judgment as written required annulment.”
7.Is Custody Granted to the Mother or the Father?
Custody rights over a joint child can be granted to either parent. However, provided there is no obstacle to granting custody to the mother, if the child is young, custody is generally preferred to be given to the mother.
8.Can a Child Be Placed Under Joint Custody?
As a general rule in Turkish law, joint custody is not commonly accepted; however, it has been applied by courts in light of evolving legal and social considerations. Therefore, the concept and practice of joint custody are particularly reflected in court decisions and judicial precedents.
The acceptance of joint custody by a court depends on various conditions and circumstances. Accordingly, a decision to grant joint custody is based on: ensuring the child’s best interests, both parents agreeing to and cooperating in joint custody, the absence of any obstacles to joint custody, obtaining the child’s opinion if they are of discernment age, and considering expert opinions and social investigation reports.
9.Can I Request Custody Back If I Agreed to Give It to the Other Parent During Divorce?
Even if custody is granted to the other parent with the consent of the parent who originally holds the right, the parent without custody can still request this right. Accordingly, custody can be claimed even if it was given to the other parent through a divorce agreement or by any other means.
10.What is the Right to Personal Contact with the Child, and Who Holds It?
The right to establish a personal relationship with the child belongs to the parent who does not have custody and allows them to maintain a relationship with the child through regular contact. Additionally, this right is automatically taken into consideration by the court.
11.Do Grandparents Have the Right to Establish a Personal Relationship with Their Grandchild?
According to Article 325 of the Turkish Civil Code (TMK), “In extraordinary circumstances, the right to request a personal relationship with the child can also be granted to other persons, especially relatives, to the extent that it is in the best interest of the child.” Accordingly, grandparents legally have the right to establish a personal relationship with their grandchildren as long as it serves the child’s best interests.
Additionally, in the decision of the Supreme Court of Appeals, 2nd Civil Chamber, dated 29.09.2020, case no. 2020/3888, decision no. 2020/4296, it was stated: “The plaintiffs are the child’s grandmother and grandfather, and their natural right is to love their grandchildren and request a personal relationship with them. A disagreement between the father and the plaintiffs should not prevent the plaintiffs from establishing a personal relationship with their grandchildren. For children who have lost their mother, spending time with their grandparents and establishing a personal relationship, as indicated in the social investigation report, will also support the children’s emotional state during the grieving process, which is in their best interest. While it was correct for the first instance court to regulate the duration of personal contact, it is understood that the personal relationship established between the plaintiffs and Enes (2010) and … (2013) on religious holidays and the 4th Sunday of each month without overnight stay was insufficient. Considering the children’s best interests, it was necessary to annul the decision and arrange a more suitable duration of personal contact with overnight stays, ensuring there is no uncertainty during enforcement.”
Some Supreme Court Decisions Regarding Custody Cases and the Modification of Custody
- “The plaintiff’s request to have the custody of the joint child taken from the mother and awarded to themselves constitutes a ‘non-contentious jurisdiction’ matter (Civil Procedure Code No. 6100, Art. 382/2-13). In non-contentious cases, unless otherwise stipulated by law, it is accepted that the competent court is the one located in the residence of the person making the request or one of the interested parties (Civil Procedure Code No. 6100, Art. 384). Since the Turkish Civil Code does not contain a contrary provision regarding the jurisdiction for cases involving the removal of custody, transfer of custody from one parent to the other, or the return of removed custody, the general jurisdiction rule related to ‘non-contentious jurisdiction’ under the Code of Civil Procedure shall also apply here. Therefore, the plaintiff may file this case in the court of their place of residence. Accordingly, instead of rejecting the case on jurisdictional grounds, the merits of the case should have been examined, and issuing a jurisdictional dismissal based on an unlawful reason is deemed incorrect.” (Supreme Court, 2nd Civil Chamber, Decision Date: 21.04.2015, Case No. 2015/1474, Decision No. 2015/8126)
- “In the present case, the court obtained reports regarding the defendant father and the joint children. However, no social investigation report concerning custody was obtained from a psychologist, pedagogue, or social worker regarding the plaintiff mother. Therefore, the court should have obtained a report on the mother from a panel consisting of a psychologist, pedagogue, and social worker, evaluated it together with the other evidence, and then rendered a decision based on the outcome. Issuing a judgment with incomplete examination, as was done, was contrary to procedural law and legislation and required reversal.” (Supreme Court, 2nd Civil Chamber, Decision Date: 03.05.2017, Case No. 2017/773, Decision No. 2017/5299)
- “In the present case, the court obtained a report regarding the father and the joint child. However, the social investigation report on custody prepared by the psychological counselor and guidance teacher on 04.03.2016 is not sufficient for rendering a judgment. Therefore, taking into account the criteria mentioned above, a tripartite panel should have conducted on-site examinations and obtained reports for both parents and the child, which should then have been evaluated together with other evidence before issuing a decision based on the outcome. Issuing a judgment regarding custody with incomplete examination and investigation, as was done, is contrary to procedural law and legislation and requires reversal.” (Supreme Court, 2nd Civil Chamber, Decision Date: 12.01.2017, Case No. 2016/23759, Decision No. 2017/319)
- “Upon examining the file, it is established that from the date the case was filed, 02.12.2013, throughout the litigation process, the parties’ joint children remained with the plaintiff-counter-defendant mother. The social investigation report obtained by the court did not prove that the children’s staying with the mother would negatively affect their physical, social, cultural, and psychological development. Furthermore, it is understood from the hearing that the joint children did not wish to choose between their parents regarding custody. Considering together the fact that the defendant-counter-plaintiff father has established a new family arrangement and the principle that the children should not be removed from their accustomed environment, it was incorrect to grant custody of the joint children Hasan and Ahmet Emre to the defendant-counter-plaintiff father due to erroneous assessments. Therefore, the decision in this regard had to be reversed.” (Supreme Court, 2nd Civil Chamber, Decision Date: 20.01.2021, Case No. 2020/6360, Decision No. 2021/431)
- “Taking into account the social investigation reports obtained by the court and the statements of the parties’ joint children, custody of …, born on 11.05.2003, and …, born on 02.04.2008, was granted to the plaintiff-counter-defendant mother, and a personal relationship was established between the father and the joint children. Custody is one of the foremost issues concerning children. In custody arrangements, when there is a conflict between the interests of the child and those of the mother or father, the child’s best interests must prevail. The child’s best interests mean that the child can develop physically, intellectually, and morally in the best possible way, and for such development, social, economic, and cultural conditions must be provided. Articles 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 stipulate that children of sufficient maturity should have their opinions considered and given appropriate weight in matters affecting them. If required by the child’s best interests, decisions contrary to their opinions may be made. Custody pertains to public order, and the principle of ex officio investigation applies. Therefore, even developments that occur during the proceedings must be taken into account. The defendant’s acceptance of the case alone does not produce legal consequences.” (Supreme Court, 2nd Civil Chamber, Decision Date: 07.02.2017, Case No. 2016/7741, Decision No. 2017/1217)
ANTALYA CUSTODY LAWYER – ANTALYA FAMILY LAWYER
A custody case is an extremely sensitive and important legal process, particularly in determining with whom a child will live during or after a divorce. For those considering filing a custody case in Antalya, working with an experienced Antalya lawyer is crucial to properly manage both the legal and emotional aspects of the process. In such cases conducted before the Family Court, decisions are made with the child’s best interests in mind. A professional Antalya family law attorney protects the client’s rights and provides the most effective representation throughout the custody process. In custody cases, experience, knowledge, and the right strategy determine the path to success. If you wish to receive legal consultancy or representation, you can contact us.
