Dilara Hekim
Legal Intern
1. Introduction and Scope
During the “childhood” phase of a person’s life, responsibilities such as care and protection are carried out by parents under the institution of custody. As a result, parents have certain obligations under custody.
In this article, we will first address the legal aspect of the custody institution. We will then explain the following key issues:
– Custody rights in the context of parental divorce,
– Custody of infants/nursing children,
– The status of personal relationships (personal relations) between the non-custodial parent and the child,
– Whether a custody lawsuit can be filed while the marriage is still ongoing,
– Whether joint custody is possible,
– Which court has jurisdiction over custody cases and how they are filed,
– Child abduction offenses.
2. What is Custody?
Custody is regulated by the Turkish Civil Code (Law No. 4721) and encompasses the rights and responsibilities parents hold concerning the care and upbringing of their children. This legal concept applies to both parents as long as they are married. It includes rights such as managing the child’s assets, providing for their education and development, and deciding on their healthcare. The main objective of custody is to ensure the welfare and best interests of the child.
When parents divorce, custody of the child becomes a key issue to resolve. The court considers various factors to determine which parent should be granted custody, always with the child’s best interests at the forefront. It is also possible for joint custody to be granted under certain conditions, which we will explore later in the article.
3. Custody Arrangements in Case of Divorce
When parents decide to end their marriage, determining who will have custody of their children is an essential matter. Turkish law takes several criteria into account when making this decision, with the child’s well-being being the primary concern. These criteria include:
- The emotional and mental stability of each parent,
- The ability of each parent to provide a stable and secure environment,
- The child’s current living situation and their attachment to a specific parent or home,
- The child’s personal wishes, depending on their age and maturity.
While it’s common for custody to be awarded to one parent, the non-custodial parent still maintains certain rights, including the right to personal contact (visitation rights). The specifics of these rights are also determined by the court.
4. Custody of Infants and Young Children
Turkish law acknowledges that, in the case of very young children or infants, the care provided by the mother may be essential for the child’s physical and emotional development. As such, there is a tendency for courts to award custody of very young children to the mother, unless there are compelling reasons to do otherwise (such as the mother being unable or unfit to provide proper care).
However, this preference does not imply that the father’s rights are disregarded. Fathers can also be granted custody, depending on the circumstances, particularly as the child grows older and their needs change.
5. Personal Relationships and Visitation Rights
When one parent is granted sole custody, the other parent is usually given visitation rights, which allow them to maintain a personal relationship with the child. These visitation arrangements are designed to ensure that the child can maintain contact with both parents, which is crucial for their emotional and psychological well-being.
The court will outline the specifics of visitation rights, including the frequency and conditions under which visits can take place. In some cases, supervised visitation may be required if there are concerns about the child’s safety or well-being.
6. Custody After Divorce: Joint Custody
Although the concept of joint custody was not widely recognized in Turkish law for a long time, recent legal reforms and decisions by the Supreme Court have paved the way for joint custody arrangements. Joint custody means that both parents share equal responsibility in making decisions about the child’s upbringing, education, health, and other essential matters, even after the divorce.
Joint custody is only granted if both parents agree to it, and the court finds that this arrangement is in the best interest of the child. In this case, the court also ensures that both parents can cooperate effectively and that such a decision will not negatively affect the child’s well-being.
There are some points to be considered when arranging joint custody. In particular, it is important that the child has an official address. Again, the child’s school and educational situation must be properly organized. When the official address of the child is different from the address where the child actually lives, problems arise in some issues, especially in education.
7. Changing Custody
After custody is initially determined, circumstances may change that warrant a revision of the custody arrangement. If the custodial parent’s situation deteriorates, or if the non-custodial parent’s situation improves, either parent can request a custody modification through the court.
For example, if the custodial parent is unable to care for the child properly due to financial, health, or other reasons, the court may grant custody to the other parent. In addition, if the child expresses a strong and reasonable preference to live with the other parent as they grow older, the court may take that into account.
8. Custody Arrangements When Parents are Unmarried
When a child is born to parents who are not married, Turkish law automatically grants custody to the mother. This can change, however, if the father takes legal steps to establish paternity and request custody through the court. In this case, the court will make a decision based on the same criteria used in divorce cases, with the child’s best interests being the primary concern.
If the father establishes paternity and requests custody, the court may award him custody if it is deemed to be in the best interest of the child. However, the court typically prefers for the child to remain with the mother, especially in the case of very young children, unless there are exceptional circumstances.
9. Termination of Custody Rights
In some cases, a parent’s custody rights may be revoked. This can happen if a parent is found to be severely negligent or abusive, or if their behavior poses a risk to the child’s safety and well-being. The court may terminate custody rights and transfer them to the other parent, a guardian, or, in some cases, the state.
The termination of custody rights is an extreme measure and only used in the most serious cases where the parent’s conduct endangers the child. If custody rights are terminated, the parent may still retain some form of contact with the child, depending on the circumstances.
10. Custody and International Law
In cases where one parent resides in a different country, custody issues can become even more complicated. Turkiye is a signatory to several international conventions, such as the Hague Convention on the Civil Aspects of International Child Abduction, which seeks to prevent the unlawful removal or retention of children across international borders.
If a parent unlawfully takes a child to another country without the other parent’s consent, the other parent can request the child’s return through international legal channels. These cases can be complex, requiring the assistance of legal professionals who specialize in international family law.
11. Summary and Advice
Custody disputes can be emotionally charged and legally complex. The key principle guiding custody decisions in Turkiye is always the child’s best interests. Whether parents are married, divorced, or unmarried, the welfare and security of the child take precedence over all other considerations.
If you are involved in a custody dispute, it is essential to seek legal counsel to navigate the legal system effectively. Professional legal advice can help protect your rights as a parent and ensure that your child’s best interests are at the forefront of any legal decision.
12. Frequently Asked Questions (FAQs) About Child Custody and Visitation Rights in Turkiye
What factors does the court consider when determining custody?
The court evaluates several factors to determine custody, including the child’s age, the stability and suitability of each parent’s living environment, the behavior and health of each parent, and the child’s own preferences if they are old enough to express a clear opinion. The primary focus is always on the child’s best interests.
Can custody arrangements be changed after a court decision?
Yes, custody arrangements can be modified if there are significant changes in circumstances. Examples include a parent relocating to a different city or country, changes in the child’s needs, or concerns about a parent’s ability to care for the child. Either parent can request a modification by applying to the family court.
What are visitation rights, and how are they determined?
Visitation rights refer to the non-custodial parent’s right to spend time with the child. The court determines the visitation schedule, which can include weekends, holidays, and extended periods during school breaks. If parents can agree on a schedule, they may not need court intervention, but the court will step in if an agreement cannot be reached.
As lawyers who have intervened in numerous legal disputes, we would like to make a humanitarian recommendation at this point. Especially people in the process of divorce may use children as a tool in their tensions and problems between themselves. In some cases, people want to take advantage of the custody and personal relationship situations and harm the other party. These situations can cause great harm to children. It is sometimes not possible to resolve such situations through the court. We recommend that parents during and after the divorce process, regardless of what happened between them, prioritize the interests of the children and prepare the necessary grounds for the child to establish healthy communication with both the mother and the father.
Can a parent be denied visitation rights?
Yes, visitation rights can be restricted or denied if the court finds that the non-custodial parent poses a risk to the child’s safety or well-being. This can include cases of abuse, neglect, or other serious concerns. In such instances, the custodial parent may request a modification or restriction of visitation rights.
What should I do if I disagree with a custody or visitation decision?
If you disagree with a custody or visitation decision, you have the right to appeal the court’s decision or request a modification based on changes in circumstances. The grounds and methods of appeal differ in each case.
Note: For references and sources, please check Turkish version of this article from this link.
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