Child Custody Legalities In Turkey

As Viridis Legal Partners with our team of family lawyers in İstanbul, we recognize the paramount importance of understanding the rights, powers, and duties associated with custody as it pertains to the protection and upbringing of minors. In this guide, we aim to shed light on the intricate nuances of child custody under Turkish law.

In this detailed exploration, we delve into the Turkish Civil Code, shedding light on the regulations governing custody of children, its key principles, and the pivotal role the best interests of the child play in custody determinations. From the fundamental aspects to the complexities of divorce cases and the criteria used by judges to decide custody, we provide valuable insights to empower you in navigating these crucial legal matters. Whether you are facing divorce, seeking custody arrangements, or considering custody modifications, our expert legal team is here to guide you through every step of the process. Read on to gain a deeper understanding of child custody law in Turkey and discover how we can assist you in safeguarding the well-being of your child.

What is Custody? 

Custody can be defined as the rights, powers and duties that parents have regarding the protection of children’s personalities and assets and their representation in order to ensure the protection, care and upbringing of minors and exceptionally limited adult children in various aspects. Accordingly, it can be stated that custody covers the rights, powers and duties related to children’s personal entities, assets and representation. 

In this regard, the Turkish Civil Code regulates custody in general in Article 335 and the following also conveys relevant provisions in divorce and other related family law areas. 

The right to custody is one of the rights strictly attached to the individual. Accordingly, it is not possible to transfer the right of custody, nor can waiver of custody be possible.

In every legal issue where custody rights are discussed, the first thing to consider is that custody rights are for the child, not for the parents. Accordingly, it is expected that the best interests of the child would prevail in exercising the right of custody. In matters related to the child, such as custody rights, the primary principle is the best interest of the child.

The primary aspect of custody in terms of the child’s personal existence is the parent’s right to sovereignty over the child. As stated in Article 335 of the Turkish Civil Code, custody belongs to the parents and cannot be taken away from them unless there is a legal reason. In addition, provided that the interests of the child are taken into consideration, the parents; have the right to determine the child’s education and name him/her. Again, the child’s place of residence is the parents’ house and s/he cannot leave the house without their permission and cannot be taken away from them without a legal reason. This issue is also stated in Article 21 of the Turkish Civil Code, which regulates the child’s place of residence.

According to Article 352 of the mentioned code, the scope of the right of custody regarding the child’s assets is related to the protection, use and especially management of these assets. As a rule, parents are not obliged to provide accountability and assurance regarding the management of the child’s assets.

Who Has The Right of Custody?

Article 336 and subsequent articles of the Turkish Civil Code regulate who will have custody, taking into account various situations. Accordingly, if the parents are married, both of them will exercise the right of custody together. However, if the joint life is terminated or separation occurs, the judge may give custody to one of the spouses. In case of the decease of one of the spouses, custody will belong to the survivor, and in case of divorce, custody will belong to the spouse to whom it is left. If the parents are not married, custody belongs to the mother. If the mother has a condition that prevents her from using custody, for instance, if she is young, limited or dead, or if custody has been taken from her, the judge may decide to appoint a guardian for the child or give custody to the father, depending on the child’s best interests.

Child Custody In Divorce Cases

One of the most disputed matters of divorce cases is child custody. The general rule is that in cases of divorce, custody will be given to one of the spouses by the decision of the judge. 

In Turkish judicial practice, custody is usually temporarily given to one of the spouses as a precaution, upon the opening of a divorce case. Once the divorce takes place, it is decided to whom custody will be given.

What Are The Criteria To Determine The Custody of The Child? 

The judge has wide discretion as to which party will give custody. The measure of this discretion is the best interest of the child. When determining the best interests of the child, the judge; considers criteria such as ensuring his/her physical, mental, spiritual, moral and social development.

Situations such as under which party the child will be raised and cared for better, and whose education and training will be provided better, are considered to be in the best interest of the child.

In this context, issues related to the child’s special criteria such as the child’s gender, date of birth, education level, who the child is studying with, whether the party requesting custody is interested in the child’s educational status, his health, and who can provide treatment opportunities based on his health condition are also taken into consideration.

It is inevitable to take into account the characteristics of the mother and father in determining and regulating custody. For this reason, the court decides on issues such as leaving the child to someone else, neglect, abduction, voluntary abandonment, guidance, whether the party has a custody request or not, use of violence, infidelity, economic situation, profession, living environment, bad behaviour, alcohol addiction, health, unstable behaviour and so are taken into account.

In Which Cases The Custody Of The Child Is Not Given To The Mother?

Custody of underage children and children in need of maternal affection and care is given to the mother. As long as it is understood that there is no obstacle to assuming custody, and if the child does not declare a desire to live with the father, custody is usually given to the mother.

If giving custody of the child to the mother will negatively affect the child’s health, education or moral values, custody will not be given to the mother. If both parents are able to take custody of the child, but in the case of divorce, if the child has declared that he wants to live with his father, and if it is understood that there is no obstacle for the father to take custody, custody can be given to the father, considering the best interests of the child. If the mother and father make a joint decision to leave custody to the father, custody can be left to the father. In addition, if it is determined that the mother abused her custody duty, for example, if it is proven that she prevented personal contact with the father and did not allow the child to meet with the father on visiting days, custody may be given to the father, considering the best interests of the child, since the custody right was abused. However, custody is not given to a minor mother.

Joint Custody and Recognition and Enforcement Cases of Joint Custody in Turkish Law

Joint custody can be defined as the mother and father exercising the rights, powers and obligations within the scope of the right of custody by making joint decisions. Within the scope of current legal regulations in Turkish Law, it is essential that custody be given to one of the spouses after divorce.

In countries such as Switzerland and Germany, although the general rule has become that children are under joint custody until they reach adulthood, regardless of the marital status of the spouses, such regulations have not yet been quoted in Turkish Law. Similarly, cases for the recognition and enforcement of joint custody decisions taken abroad have also been rejected. 

With Article 5 of Additional Protocol No. 7 of the European Convention on Human Rights, which entered into force in Turkey on 1 August 2016, it has been accepted that spouses are equal in terms of their responsibilities for children, even if the marriage ends with divorce. According to Article 90 of the Turkish Constitution, international agreements duly ratified have the force of law. If the agreement provisions regarding fundamental rights and freedoms differ from the laws, the agreement provisions shall prevail. 

Furthermore, the Supreme Court 2nd Civil Chamber in its decision numbered 2016/15771 E., 2017/1737 K. and dated 20.02.2017; reversed its ongoing jurisprudence and decided that joint custody arrangements were not contrary to public order. In this state, in Turkish practice, the recognition and enforcement of joint custody and joint custody decisions have become possible with the agreement of the spouses.

Custody Changing Cases

Decisions regarding custody given as a result of a divorce case are not absolute. According to Article 183 of the Turkish Civil Code, in cases where the best interests of the child can be considered to be damaged due to reasons such as the parent who has custody getting married, changing city or country, dying, entering a vegetative state, receiving inpatient treatment due to alcohol or substance addiction, or going to prison, the judge; It is obliged to take the necessary measures regarding custody upon the request of the parties or on its own.

Accordingly, in case of a permanent change that harms the interests of the child, the spouse who does not have custody will be able to sue and request that custody be given to him or her, without being bound by any period of time.

How We Can Assist You? 

As Viridis Legal Partners, we understand the complexities and sensitivities involved in matters of child custody. Our experienced legal team is committed to providing personalized and expert assistance to help you navigate through the intricacies of custody issues. Whether you are facing a divorce, seeking custody arrangements, or considering modifications to an existing arrangement, we are here to guide you. 

Our family law attorneys ensure that your case is approached with a deep understanding of the legal framework and a focus on the best interests of the child. We offer comprehensive legal support, from initial consultations to courtroom representation, and strive to find amicable solutions whenever possible. With a commitment to safeguarding your rights as a parent and the well-being of your child, we tailor our services to meet your unique needs. Let us be your advocate in securing the best possible outcome for you and your family. 

Contact us today for a consultation and take the first step towards resolving your custody matters with confidence.

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