Due to the regulation in Law No. 7226, the party who cannot execute the interim decision or finalized court decision containing the provision of “establishing personal relationship with the joint child” through execution, may apply to the Family Court pursuant to Law No. 6284 in order to temporarily reorganize the personal relationship with the joint child during the pandemic process and obtain a “notification decision”.
Due to the regulation in Law No. 7226, the party who cannot execute the interim decision or finalized court decision containing the provision of “establishing a personal relationship with the joint child” can apply to the Family Court in accordance with Law No. 6284 to obtain a “notification decision” in order to temporarily reorganize the personal relationship with the joint child during the pandemic.
(Covid-19), which emerged in Wuhan, the capital of China’s Hubei region, in December 2019, is a respiratory disease that is easily and continuously transmitted from person to person and threatens a large number of people simultaneously in a very widespread manner around the world. The World Health Organization (WHO) declared the (Coronavirus/Covid-19) disease as a global pandemic on 11 March 2020 due to the rapid increase in cases reported in various countries of the world since mid-January 2020. The first case of (Covid-19) in Turkey was announced by Minister of Health Fahrettin Koca on March 11, 2020.
Since the outbreak of (Covid-19), in order to minimize its spread and protect the health of people in our country, in line with the recommendations of the Ministry of Health and the Scientific Committee and the instructions of the Presidency of the Republic of Turkey; many measures have been taken and implemented by the Ministry of Justice, the Ministry of Interior, various other institutions and organizations, primarily the Presidency of the Republic of Turkey, within the framework of its duties and powers, in order to manage the risk posed by the epidemic / contagion in terms of public health and public order, to ensure social isolation, to protect social distance and to keep the spread rate under control.
With the circulars issued by the Ministry of Interior; in order to maximize the effect of the measures taken on the spread rate of the contagion, all citizens within the borders of 30 provinces with metropolitan status and Zonguldak province were restricted from going out on the streets on weekend days.
With the Circular dated 03.04.2020 issued by the Ministry of Interior; it was temporarily banned for those born after 01.01.2000 to go out on the streets.
Since it has become difficult for people to use their rights effectively and to take legal actions in due time due to the measures taken due to the (Covid-19) pandemic and people’s avoidance of social contact; in order to prevent loss of rights in the judicial field, the Official Gazette dated 26/03/2020 and numbered 31080 (1st Repeated). Until 30/4/2020 (including this date) with the Provisional Article 1 of the Law No. 7226 on the Amendment of Certain Laws, which entered into force after being published in the Official Gazette dated 26/03/2020 and numbered 31080 (1st Repeated); Until 15/6/2020 (including this date) with the Presidential Decree “On the Extension of the Suspension Period Introduced in order to Prevent Loss of Rights in the Judicial Field”, which entered into force after being published in the Official Gazette dated April 30, 2020; until 15/6/2020 (including this date), all periods regarding the birth, exercise or termination of a right, including the periods for filing a lawsuit, initiating enforcement proceedings, party and follow-up proceedings, application, complaint, objection, warning, notification, submission and statute of limitations, periods of forfeiture and mandatory administrative application periods, have been suspended.
In this context, the regulations introduced by Law No. 7226 and the circulars of the Ministry of Interior cause victimization of parents who are divorced or in the process of separation-divorce and live in separate houses with the joint child.
During the pandemic process, the party who has not been granted custody cannot execute the interim decision or finalized decision containing the provision of “establishing a personal relationship with the joint child”, cannot initiate a proceeding “regarding the delivery of the child or establishing a personal relationship with the child” until 15/6/2020 (including this date) in accordance with Law No. 7226, and cannot perform party transactions in pending proceedings.
With the circulars of the Ministry of Interior; the weekend days of the curfew restriction coincide with the days on which the personal relationship of the party who is not granted the use of custody with the joint child is organized; the applications made to the party exercising the right of custody to show flexibility in the time of delivery of the child to the other party according to the starting time of the curfew restriction do not yield positive results, and in this way, despite the interim decision or finalized decision containing the provision of “establishing a personal relationship with the joint child”, the party exercising the right of custody prevents the party who is not granted the use of custody and the joint child from physically establishing a mutual personal relationship.
Furthermore, even the request of the party who has been prevented from having a physical mutual personal relationship with the joint child due to the curfew restriction on the days when the personal relationship with the joint child is organized, to make audio or video phone calls with the joint child is not fulfilled by the party exercising the right of custody.
With the Law No. 7226 and the regulations introduced by the circulars of the Ministry of Interior, the fate of the “personal relationship with the joint child” of the non-custodial party is completely left to the arbitrary management of the custodial party.
Psychological violence, emotional violence and moral violence committed by the party exercising the right of custody with arbitrary attitudes and behaviors such as “preventing the party who is not granted custody and the joint child from establishing a personal relationship through audio or video phone calls or physically” cause mutual victimization of both the party who is not granted custody and the joint child.
Article 2 of the Turkish Civil Code No. 4721 titled “Honest behavior” stipulates that everyone is obliged to comply with the rule of honesty when using their rights and fulfilling their obligations, and that the abuse of a right will not be protected by the legal order. Therefore, the party exercising the right of custody must pay attention to the rule of “honest behavior”. In case of abuse of the right, the legal order does not protect this right.
The mutual personal relationship of the joint child with the party who does not exercise the right of custody, either through audio or video phone calls or physically, is mandatory for the physical, emotional, mental, spiritual, moral and social development of the child and is in the best interest of the child.
The arbitrary actions and behaviors of the party exercising the right of custody, which include psychological violence, emotional violence and moral violence, such as “preventing the joint child and the party who is not granted custody from establishing mutual personal relationship through audio or video phone calls or physically”; in other words, the use of the right of custody contrary to the purposes and honesty rules, in other words, it is a clear abuse of the right of custody, and the legal order does not protect the abuse of the right.
The purpose of Law No. 6284 on the Protection of the Family and Prevention of Violence against Women is to regulate the procedures and principles regarding the measures to be taken for the protection of women, children, family members and victims of unilateral stalking who have been subjected to violence or are at risk of being subjected to violence and to prevent violence against these persons.
Pursuant to Article 5, paragraph 3 of Law No. 6284, “In addition to the measures specified in this Law, the judge is authorized to decide on the protective and supportive measures included in the Child Protection Law No. 5395 dated 3/7/2005, as well as custody, trusteeship, alimony and establishing a personal relationship in accordance with the provisions of Law No. 4721.”
Accordingly, due to the regulation in Law No. 7226; the party who cannot execute the interim decision or finalized court decision containing the provision of “establishing a personal relationship with the joint child” due to the regulation in Law No. 7226, may apply to the Family Court in accordance with Law No. 6284 in order to temporarily reorganize the personal relationship with the joint child during the pandemic process and obtain a “notification decision”.
Furthermore, the mother or father, who does not have a decision and cannot see their child because they live in separate houses with their spouse, may also apply to the Family Court pursuant to Law No. 6284 to obtain a “notification decision” in order to establish a personal relationship with the joint child.
With the “notification decision” to be issued by the Family Court in accordance with Law No. 6284, the temporary reorganization of the personal relationship between the party who is not granted custody and the joint child during the pandemic process will prevent the arbitrary administration of the party who abuses the right of custody, which includes psychological violence, emotional violence and moral violence, and will eliminate the victimization of the other party and the joint child.
Pursuant to the provisions of Law No. 6284, if the party exercising the right of custody, for whom a cautionary decision has been issued, violates the requirements of this decision, even if his/her act constitutes a crime, he/she will be subject to compulsion imprisonment from three days to ten days by the decision of the judge, depending on the nature of the measure violated and the severity of the violation.
In each repetition of the violation of the requirements of the measure decision by the party exercising the right of custody, the duration of the compulsion imprisonment is from fifteen days to thirty days, depending on the nature of the measure violated and the severity of the violation. However, the total duration of the compulsory imprisonment shall not exceed six months.
