I. Custody Rights of the Parents over the Child and Their Scope
The minor child is under the custody of his/her parents (TCC.335/1). As long as the marriage continues, the parents have joint custody (TCC.336/1). In case of the death of one of the parents, the custody belongs to the remaining parent, and in case of divorce, it belongs to the party to whom the child is given (TCC.336/3). In various decisions of the Court of Cassation, custody is defined as follows;
“In accordance with Articles 337, 340, 342 and 346 of the Turkish Civil Code No. 4721, custody covers the care, education, training and protection of children and representation of children. Custody also includes the rights, duties, powers and obligations of parents regarding the personalities and property of children under their custody. The rights and duties of the parents with regard to the personalities of the children are, in particular, to take care of their children, to see and care for them, to provide for their livelihood, and to ensure their education. In this context, they have the right and obligation to raise their children to be honest, away from bad habits, have good morals, hardworking and knowledgeable people” (Court of Cassation HGK, E. 2017/2-3117, K. 2018/1278, T. 27.6.2018).
“Custody includes rights, duties, powers and obligations regarding the personalities and property of the children under the custody of the parents” (Decision of the Court of Cassation General Assembly of Civil Chambers dated 24.2.2016 and numbered E. 2014/1047, K. 2016/171).
II. Does the Remarriage of the Parent with Custody Require the Termination of Custody?
The remarriage of the parent who has custody does not require the termination of custody. However, when the best interests of the child require, the custodian may be changed, or a guardian may be appointed for the child by terminating the custody depending on the circumstances and conditions (TCC.349). Accordingly, in order for the remarriage of the parent who has the right of parental custody to be a reason for the change of parental custody or the termination of parental custody and the appointment of a guardian for the child, the best interests of the child must be required.
III. If There is Best Interests of the Child, Change of Custody Will Be Granted?
The remarriage of the parent who has the right of custody is not sufficient for the change of custody by itself. Evidence of abuse or neglect of custody rights or the existence of a material event that requires a change of custody must be submitted.
“With the divorce decision, the custody of the common child was given to the defendant mother and finalized. Although the court has decided to change the custody this time and to take it from the mother and give it to the father; With the evidence collected, no evidence has been obtained that the mother has abused or neglected her parental duty. The fact that the mother or father who has custody has remarried is not sufficient for the change of custody by itself. Custody may be changed if the best interests of the child so require (Art. 349 of the Civil Code). There is no evidence that changing the custody would be in the best interest of the child. Therefore, while the request for change of custody should be rejected; its acceptance as written was wrong and required a reversal” (2nd Civil Chamber of Court of Cassation, Decision No. E. 2013/4764, K. 2013/25031, dated 4.11.2013).
“The lawsuit is related to the request for change of custody or reorganization of the personal relationship with the joint child. The parties divorced by agreement with the divorce decree of Kuşadası Civil (Family) Court of First Instance, which became final on 12.06.2007, the custody was given to the defendant mother and a personal relationship was arranged between the plaintiff father and the joint child. The joint child Can was born on 17.1.2005 and is in need of maternal care and affection. There is no sufficient evidence within the scope of the file that the defendant mother neglected her parental duty towards the child, did not show the necessary interest and prevented the plaintiff father from having a personal relationship with the joint child. The collected evidence is not sufficient to accept that the conditions for the change of custody have occurred. The remarriage of the mother who has custody does not require the change of custody by itself. In the face of this situation, while the plaintiff’s request for the change of custody should be rejected, the decision to accept it as written is wrong and requires reversal” (2nd Civil Chamber of Court of Cassation, Decision No. E. 2013/13402, K. 2014/1, dated 13.1.2014).
“The joint child M. A. T. was born on 23.11.2008 and his custody was left to the defendant mother with the divorce decree finalized on 04.02.2010. The first lawsuit filed by the plaintiff father on 22.09.2011 with the request for change of custody was dismissed and finalized on 15.03.2012. The child is still staying with the mother and has stated that he wants to stay with his mother and that his father’s new wife has been violent towards him. The court consulted an expert witness who stated that there was no need to change the custody and that the child wanted to stay with the mother. The defendant mother’s remarriage is not a reason for changing the custody, and it is understood from the evidence collected that the defendant is divorced and lives with his family and the joint child. The existence of other reasons requiring the change of custody has not been proven. Considering the age of the child, it is obvious that it is not in his/her best interest to be separated from the environment to which he is accustomed. As such, instead of rejecting the request for the change of custody, it was necessary to reversed the written judgment” (2nd Civil Chamber of Court of Cassation, Decision No. E. 2015/20121, K. 2015/22009, dated 23.11.2015).
“The custody of the joint child was left to the defendant (mother) by the divorce decision and the decision became final on 27.01.2004. The joint child was born on 16.10.2000. It is understood from the investigation and collected evidence that the defendant (mother), to whom the custody was left, moved to Bodrum while living in Istanbul, remarried and settled here, the child studied at Şişli Terakki High School in Istanbul, and the plaintiff (father) also lived in Istanbul. It is seen that the child does not want to live with his mother and prefers to live with his father. The main thing in the custody regulation is the best interest of the child. Considering that the mother is married to someone else and lives in Bodrum with her husband, and the father is settled in Istanbul where the child receives education and training, and that the child prefers to stay with his father, since there is no evidence and reason that staying with the father will prevent his physical, intellectual and moral development, it would be appropriate to take the custody from the mother and give it to the father. For this reason, while the request should be accepted, it was not correct to reject it on grounds that were not in accordance with the case” (2nd Civil Chamber of Court of Cassation, Decision No. E. 2013/2773, K. 2013/21832, dated 25.9.2013).
Iv. If There Is a Best Interest Of The Child, The Custody May Be Terminated and a Guardian May Be Appointed for the Child According to the Circumstances and Conditions
The remarriage of the parent who has custody does not require the termination of custody. However, depending on the situation and circumstances, custody may be terminated and a guardian may be appointed for the child. The termination of custody should be a last resort as it is a decision that has severe consequences for the mother and/or father.
“The decision to terminate custody is a decision that has severe consequences for the mother and/or father. For this reason, all necessary investigations should be made before the decision to terminate the custody, whether it is sufficient to change the custody and give it to the other party; if there is no other solution, the custody should be terminated” (2nd Civil Chamber of Court of Cassation, Decision No. E. 2013/15601, K. 2014/1162, dated 22.01.2014).
“According to the contents of the file examined, there is no information and document indicating that the right of custody belonging to the mother, who lived after the death of Hüseyin’s father, has been terminated. On the other hand, according to Article 349 of the Turkish Civil Code, remarriage of the parent who has custody does not require the termination of custody. The court’s decision to appoint his grandmother as guardian without any decision regarding the termination of the right of custody of Hüseyin, which was legally with his mother, was found to be against the procedure and the law” (2nd Civil Chamber of Court of Cassation, Decision No. E. 2009/16476, K. 2010/6149, dated 31.3.2010).
“The defendant and his wife divorced, the custody of the common child Yiğit, born on 14.01.1999, was given to his mother with the divorce decision and this decision became final on 04.04.2005. From the collected evidence, it is understood that after the finalization of the divorce and custody decision, the defendant mother made repeated attempts to take the child, who was actually with the plaintiff (grandfather), but each time she was prevented by the plaintiff. There is no serious fact and evidence that the defendant mother is unable to fulfill her parental duty and that she is indifferent to her child. Although there is no serious and convincing evidence that staying with the mother will prevent the physical, intellectual and moral development of the child and the existence of immediate dangers has not been proven, it was not deemed correct to decide to terminate the custody from the mother while the lawsuit should be dismissed” (2nd Civil Chamber of Court of Cassation, Decision No. E. 2008/5965, K. 2008/9325, dated 25.6.2008).
In the event that the parent to whom the right of custody is entrusted fails to fulfill his/her duty of custody properly, fails to show sufficient interest in the child or severely neglects his/her obligations towards the child, or commits violence, a decision shall be taken to terminate the custody.
V. The Court in Charge in Cases of Change and Termination of Custody
The competent court is the Family Court. In places where a family court has not been founded, these cases are heard by the Civil Court of First Instance as a family court. The competent court is the court of residence of the defendant (mother or father), which is the general competent court.