What is Custody Rights?

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Custody is the right, authority and duty of parents to protect the personality and assets of children and to represent them in order to ensure the protection, care and upbringing of minors and exceptionally restricted adult children in various respects. The right of custody is not only a right but also an obligation. In this sense, it should be kept in mind that even if the right of custody is a right, it is a right arising from an obligation. The mother and/or father who has the right of parental custody must not only provide the education, care and parental affection that their child needs, but also help their child’s development within their socio-economic means.

The ultimate aim of parental custody is to safeguard the best interests of the child under all circumstances and conditions. Therefore, it is the responsibility of the parents to maintain and develop the child’s mental, physical and moral awareness. Within the marriage union, these obligations, as well as the representation of the child and decisions regarding the child’s education, belong to the parents. However, since the principle of the best interest of the child is to be observed in any case, this principle should not be abandoned in the face of changing situations (e.g. divorce) and possible legal problems that the child may face should be prevented. In the presence of a situation that may adversely affect the right of custody, which will last until childhood, or in case of abuse of this right, it may be necessary to take necessary measures to protect the best interests of the child or to remove/change the custody.

Especially in the case of divorce, establishing a personal relationship between the spouse who is not granted custody and the joint child is a matter that should be decided on the basis of the child’s interests, especially in terms of health, education and morality. This spouse is obliged to participate in the child’s care and education expenses to the extent of his/her power.

How to Request Custody in a Divorce Case?

In Turkey, since the request for custody is a part of the divorce case, there is no need to file a separate lawsuit for custody. In fact, even if the parties do not request custody in a divorce case, it will be possible for the judge to rule on this issue according to the circumstances of the situation, since the principle of custody and the best interests of the child are directly related to the public interest. If, as a result of the custody granted to one spouse in a divorce case, this spouse does not fulfill the obligations of custody, then custody may also be granted to the other spouse.

According to Article 182/1 of the TCC (Turkish Civil Code);

“When deciding on divorce or separation, the court shall regulate the rights of the parents and their personal relations with the child, after hearing the parents, if possible, and after receiving the opinion of the guardian and the guardianship authority if the child is under guardianship.”

What is a Change of Custody Case?

As mentioned above, since custody is a part of the divorce case, the judge will also make a decision about custody in the divorce case. However, after this decision of the judge, if the conditions change in connection with the custody, the spouse who will later request the custody to change the custody can request from the court under the name of “the case for the change of custody”. It should also be noted that as a result of a finalized divorce case, this request must be requested as a separate case, since custody cannot be requested within the divorce case again since the decision has been finalized. This case is called the case for changing the custody. In this case, the changing conditions can be listed as follows; after a certain age, the child, whose psychological capacity of will is sufficiently developed, wants to live with the other parent rather than the parent who has the right of custody, the parent who has the right of custody abuses this right, or this parent has difficulties in meeting the responsibilities brought by the right of custody and cannot meet these responsibilities. If these allegations are deemed appropriate by the court, custody can be transferred from one parent to the other.

First of all, in this case, “a change in the existing facts” is required. As a result of this change of facts, the parent who has the right of custody must be disrupting or failing to perform his/her custody duties properly. The provision introduced in the Turkish Civil Code regarding the change of custody is as follows;

Article 183 of the TCC: “In the event that new facts such as the marriage of the mother or father to another person, his/her moving to another place or his/her death make it necessary, the judge shall take the necessary measures ex officio or upon the request of one of the parents.”

Considering the decisions of the Court of Cassation, if we want to make the reasons for changing the custody more concrete, we can list the following reasons;

– The party who has the right of custody maliciously prevents the party who does not have the right of custody from establishing a personal relationship with the child (also referred to as parental alienation syndrome in the Court of Cassation decisions and in the literature)

– Lack of attention to the care and needs of the child

– Neglecting or negatively affecting the child’s psychosocial development

– The best interests of the child (economic, social and cultural reasons)

– As stated in the law; remarriage of the mother or father who has custody of the child

– Relocation of the party to whom custody has been granted, death or obstruction of the exercise of custody

– The party who has custody has permanently lost the power of discernment

What is Joint Custody in the Turkish Legal System?

There is no provision on joint custody in the Turkish Civil Code. Especially in contentious divorce cases, the judge cannot rule on joint custody. However, in practice, if the parties are divorced with an agreed protocol and they have made a provision regarding joint custody in this protocol, the provision regarding joint custody can be established by the judge. The underlying reason for this is that the judge primarily attaches importance to the wishes and wills of the parties in divorce. After the joint custody provision in the uncontested divorce protocol is accepted by the judge, the spouses must fulfill their duties and obligations regarding custody together. In practice, this situation may bring along some problems. For example, the signature of both parties may be required for the school enrollment of the child. Therefore, it is worth mentioning once again that, except for the uncontested divorce protocol, it is not legally possible for the judge to accept the joint custody provision, and in Turkish law, custody can only be granted to one person.

How is the Personal Relationship Between the Non-Custodial Spouse and the Child Established?

Of the spouses who have separated after the divorce case, the party who has not been granted custody may request the judge to decide to establish a “personal relationship” with his/her child. Moreover, even if there is no such request, the judge is required to regulate this relationship automatically pursuant to Article 182/1 of the TCC. On the other hand, Article 182/2 of the Civil Code reads as follows;

“In its decision, the court warns that if the requirements of the personal relationship arrangement are not fulfilled, the custody may be changed, provided that it is not contrary to the interests of the child.”

The spouse who has been granted custody should fulfill his/her duties and responsibilities within the scope of custody and should take care not to disrupt the personal relationship between the other spouse who does not have custody and the child, and should not cause difficulties to the other spouse. If he/she tries to sabotage the personal relationship or, for example, prevents them from meeting, this will lead to a change of custody.

Can Persons Other Than the Mother and Father Request Custody?

Article 404 of the TCC stipulates that “Every minor who is not under guardianship shall be placed under guardianship.” Pursuant to this provision, the right of custody belongs only to the mother and father. Other relatives of the child, other than the mother or father, for example, cannot request custody. As can be understood from the article, these persons may request that the child be placed under guardianship depending on the circumstances and conditions.

Exercise of Custody Rights within the Marital Union

As long as the marriage union lasts, the spouses exercise the right of custody together and take all decisions regarding the child together. If one of the spouses dies, the surviving spouse continues to exercise parental authority. In this case, it is not possible for the right of custody to be left to the heirs or relatives of the deceased spouse.

Scope of the Right of Custody

Article 339 and the following articles of the TCC regulate the scope of the right of custody. In this framework, the following can be said about the scope of parental authority;

– The mother and father should prioritize the best interests of the child when making decisions regarding the child’s future within the marriage union, such as education and care.

– Even if the child is obliged to listen to his/her parents, the parents cannot abuse this authority in an abusive manner.

– When making a decision, parents should allow the child the freedom to determine his/her own living arrangements and seek the child’s opinion on important matters.

– The child may not leave home without the consent of the parents.

– The child may not be separated from the mother and father without a legal reason.

– The mother and father name the child together.

A) Care and Education of the Child under Custody

One of the most prominent points of the principle of the best interests of the child arises when it comes to the care and education of the child. The main idea here is to decide what is most beneficial or most useful for the child. The point that parents should pay attention to here is to prioritize what is in the best interest of the child, not their own wishes. Of course, the child’s ideas should be listened to while doing this. In line with this principle, parents should support the child’s sociological, cultural, physical, mental, spiritual and moral development within the limits of their means. If the child has a disability, they should also provide the child with appropriate support and benefits according to the child’s abilities and inclinations.

B) Religious Education of the Child under Custody

Parents have the right to determine the religious education their child receives. However, once a child reaches the age of majority, his or her freedom to follow the religion of his or her choice cannot be restricted.

C) Representation and Capacity to Act

The representation of the child to third parties is, as one might expect, carried out by the mother and father. This representation covers all kinds of activities, course registration and educational programs in which the child will participate. If the child has the power of discernment, he/she may enter into legal transactions on behalf of the family, provided that he/she has the consent of his/her parents. However, it should not be forgotten that if a debt arises as a result of these legal transactions, for example, the mother and father are deemed to be in debt. It is only possible with the approval of the judge and the participation of the trustee that the child can be considered to be under debt in legal transactions made by the child with third parties for the benefit of the parents. Therefore, as a rule, it should be accepted that it is the mother and father who will incur debts.

Removal of Custody

According to Article 348 of the Turkish Civil Code: If other measures for the protection of the child do not yield results or if it is understood in advance that these measures will be insufficient, the judge decides to remove the custody in the following cases:

1. The inexperience of the parents, their illness, their presence in another place or for similar reasons, the inability of the parents to fulfill the duty of custody properly.

2. The parents do not pay sufficient attention to the child or grossly neglect their obligations towards the child.

If custody is removed from both parents, a guardian shall be appointed for the child.

Unless otherwise specified in the decision, the termination of custody covers all existing and future children.

If the said provision is summarized in articles, the reasons for the termination of parental authority may be as follows;

• Inexperience of parents,
• Illness of the parents,
• The parents are in another location or
• Failure to fulfill the duty of guardianship due to one of the similar reasons,
• Parents do not pay enough attention to the child or
• Severe neglect by the parents of their obligations towards the child

If custody is removed from both parents, a guardian is appointed for the child. Unless otherwise specified in the decision, the termination of parental authority covers all existing and future children.

Custody Rights in Connection with Abroad

What is the Relationship between Removal of a Child Abroad and Custody?

If the child is going abroad within the marriage union, there must be a notarized consent of the parent who does not accompany the child during the trip (if any). Because the spouses exercise the right of custody together since they are in a marriage union. On the other hand, if there is a divorce or separation, the custodian can act as he/she wishes regarding the custody of the child whose custody is left to the mother or father and is not obliged to obtain the consent of the other party. It should be noted that regardless of custody, if the child in question is under the age of eighteen, an exit permit must be obtained on behalf of the child in any case.

Although the party having custody in case of divorce or separation does not need the consent of the other party, in practice, some countries require the notarized consent of the other spouse at the visa stage. There are two possibilities for taking the child under custody abroad. The first of these is to take the child abroad for travel purposes, while the second possibility is to take the child abroad for settlement purposes.

Taking the Child Abroad for Travel Purposes

As mentioned above, if the right of custody is exercised by one spouse, the consent of the other spouse is not required. Since the issue in question is travel, consent is also not required under the Constitution within the scope of freedom of movement. On the other hand, after divorce or separation, a personal relationship is established between the non-custodial party and the child. During the period of this personal relationship, it is obligatory to obtain the consent of the other spouse to take the child abroad. It should not be forgotten that the only issue that does not change regardless of the custody issue is the best interest of the child.

Taking the Child Abroad for the Purpose of Settlement

If the right of custody is exercised by one spouse, the consent of the other spouse will not be required in the same way. The difference here is that the child’s settlement abroad is a significant change. This significant change in the child’s situation raises the possibility for the other party, who does not have the right to custody, to request the court to “re-evaluate the custody”.

Another issue is that the relocation of the child’s place of residence to another country may violate international conventions. According to the Hague Convention, which specifically applies to children under the age of 16, if the custodial parent takes the child abroad for settlement purposes, the other parent can request the return of the child.

Prevention of Removal of the Child Abroad+

Although the custodial parent does not need the other parent’s permission to take the child abroad, if the non-custodial parent suspects that the other parent has brought the joint child abroad for the purpose of “abducting” the child, the court may issue a “restraining order” if proven by evidence. However, the aforementioned evidence must be of strong suspicion.

Failure to Give Consent for the Child to Leave the Country

First of all, it should be noted that a letter of consent is a document required by the competent authorities of the destination country. Therefore, there is no legal basis for requesting such a document from the Turkish courts, nor does it seem possible. Although it has been agreed in the uncontested divorce protocol to give permission (consent) for the joint child to go abroad, the issue of compensation may arise if the spouse arbitrarily does not give consent. The party whose personal rights are violated or who suffers material damage may file a lawsuit for compensation in case the joint child is not allowed to leave the country.

Why Us?

The right of custody is a parental right that includes important responsibilities regarding the care, education and protection of the child. Disputes regarding custody rights can have serious legal consequences in divorce proceedings or disputes between parents. It is of great importance to make the right decisions and manage the process in a fair manner, taking into account the best interests of the child. For this reason, legal proceedings regarding custody rights should be carried out with expert support.

As Güneş & Güneş Law Office, we provide comprehensive legal consultancy and representation services to our clients regarding custody rights with our team of lawyers specialized in family law. Our experienced team ensures that all processes related to custody are carried out fairly and in accordance with the law, taking into account the best interests of the child. We are at your side with our legal support on custody rights.

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