THE USE OF THE RIGHT OF CUSTODY IN TURKISH LAW (Q&A)
The right of custody is the rights and obligations that parents have by law over the personality and immovable property/movable property of the child. This right gives the parents the rights and obligations such as the care and education of the child, that is, to ensure and protect the child’s physical, mental, spiritual, moral, and social development, to determine his/her religious education, to set his/her own name, to be the legal representative of the child against third parties, and to manage his/her property. Below, the issues that are frequently encountered in practice regarding the use of this right are presented to you in the form of questions and answers.
Is custody of minor children always given to the mother in case of divorce?
As long as the marriage continues, the mother and father use custody together. The right of custody is a right granted only to the parents and cannot be given to anyone other than the mother and father, such as uncles, grandparents, aunts, except in the case of adoption. Another spouse helps the spouse who has custody of the stepchild, represents him/her for the needs of the child to the extent that the situation and circumstances oblige (Art. 338 of the Civil Code). In case of divorce, the judge may give custody to one of the spouses (Art. 336 of the Civil Code). In this connection, the discretion rests with the judge. Based on the fact that young children are especially in need of the mother’s care and affection their custody is given to the mother in case of divorce. Of course, this issue is not absolute and should be evaluated separately in every concrete case. As a matter of fact, the Court of Cassation rendered a decision in a case where the moral condition of the mother was the reason for the divorce case and granted the custody to the father: “…since there are serious and convincing evidences that keeping the joint children with the plaintiff mother would hinder the physical, intellectual and moral development of the children, it is not possible to assign the right of custody to the plaintiff mother”
Can a mother who does not take custody of the children even though they are young and in need of maternal affection by uncontested divorce, then ask for a decision to take custody from the father after the children grow up, when there is no reason sought by the law?
Not when there is no reason, but according to Article 348 of the Civil Code, mother may request the removal of custody from the Family Court that is located in the father’s residence by proving that the conditions written in the article have been fulfilled,. These are: 1) The father’s inexperience, illness, presence elsewhere, or failure to perform his duties properly for one of the similar reasons and 2) the father does not pay sufficient attention to the child and severely neglects his obligations towards him/her. There must be evidence that these reasons have occurred. So, does the father’s remarriage require the removal of custody? No, it doesn’t. However, if the best interests of the child require it, the judge may take custody from the father, as well as assign a guardian to the child by not giving custody to both parties according to the circumstances and conditions (Art. 349 of the Civil Code). Unless otherwise stated in the decision, the termination of custody covers all existing and future children (Art. 348, sub-article. 3 of the Civil Code).
Should children be listened to and their opinions evaluated in the divorce case?
While the right of custody is being regulated in the divorce case, the decisions of the courts that do not take the opinion of the child of the age of comprehension are overturned by the The Court of Cassation. As a matter of fact, in a decision of the Court of Cassation: “Article 12 of the United Nations Convention on the Rights of the Child and according to Articles 3 and 6 of the European Convention on the Exercise of the Rights of the Child, attention is also paid to listening to children of the age of cognizance and their opinions expressed, and if necessary, reports are received from expert or experts in accordance with Article 5 of the Law on the Establishment, Duties and Judicial Procedures of Family Courts No. 4787, and, while the evidence should be evaluated together and the decision should be made in accordance with the result, it was not found correct to establish a judgment with incomplete examination on custody” overturned the decision of the lower court.
Does the fact that the mother is a foreign national and not a Muslim constitute a reason why custody should not be granted to her?
This matter, especially for Turkish citizens who are married to a foreign national woman, raises the issue of who will be given custody if the marriage ends in divorce. The father, a Turkish citizen who made such a marriage, and the Swiss mother, who is the defendant, were married in 1987. The father stated that he had child in common with the mother. Stating that he used his own customs and traditions in the upbringing of this child, that love, and respect had been lost between the parties, and that the mother’s behavior in a way that created Turkish hostility had led to incompatibility of temperament, he demanded that they divorce, and custody be given to him. Kadıköy 4nd Civil Court of First Instance stated that the child live in Turkey for years, growth in Turkey and it was a privilege for the young child to adapt to Turkish customs and traditions and to grow up in Turkey. It was thought that it might be appropriate for him to grow up in Switzerland in terms of his education, Civil Court of First Instance considering the formation of character structures of young people, decided to give custody to the father for reasons such as the fact that he was raised like a Turk. The decision was appealed by the Swiss mother. Then the 2nd Civil Chamber of the Court of Cassation: “…states that there is no serious and convincing evidence that the child’s stay with the mother will interfere with the child’s physical, intellectual and moral development. If the existence of the current or future dangers cannot be proved, it is against the procedure and the law to give custody to the father of a minor who needs the care and compassion of the mother in particular,” Civil Chamber of the Court of Cassation overturned the decision of court’s, by saying that. When the court resisted the decision, the Court of Cassation General Assembly of Civil Chambers also decided to grant custody to the mother on the grounds set out above. The decision has been criticized. Especially the members who voted against, and rightly so in our view: “It is concluded that if the custody is left to the Swiss mother, the child will be subjected to education in accordance with Swiss laws, customs, traditions and religion, and as a result, the child will be deprived of Turkish history and Turkish customs, national feelings and thoughts. the opinion that custody of a minor daughter should be given to the mother because she is in need of her mother’s care and affection cannot be strictly applied when the parents are of different nationalities. In addition to the future benefit of the child, the benefits of the society on which it depends are an important factor in the arrangement of custody. People are mortal, the nation is permanent, and the survival of the nation depends on the perseverance and will of its individuals to keep it alive and glorify it. They emphasized that it is not always and generally possible to realize positive steps towards Turkish society and the integrity of the homeland only by acquiring material knowledge, and that these must be shaped and developed within historical, national, moral, material and spiritual values.”
What happens if parents cannot agree on the child’s name and religious education?
The previous Civil Code recognized the superiority of father’s vote in the event that the mother and father could not agree on the child’s name. Our current law is “the child’s name is put by his parents” (Art. 339, sub-article. 5 of the Civil Code) Civil Code asked them to agree on this issue. If they cannot agree, one of the parties will apply to the judge. The judge will force the parties to agree on this issue, finally, a situation such as the judge himself naming the child will arise. In the same way, if the parents belong to different religions and cannot agree on the religious education of the child, the judge will make the decision.
Is it possible to have joint custody for parents?
Signed on behalf of the Republic of Turkey 14th of March 1985 Protocol No. 11 and Additional Protocol No. 7 to the Convention on the Protection of Different Human Rights and Fundamental Freedoms” was approved by Law No. 6684 and was published in the Official Gazette dated 25th of March 2016 and entered into force. Besides, it has become a part of our national law. According to Article 5 of Protocol No. 7, “Spouses are equal in the terms of rights and responsibilities according to private law, in their relations with each other and with their children, during marriage and in the event of the end of the marriage. This article does not prevent states from taking the necessary measures for the benefit of children”. International Treaty have the force of legal provision. There is no possibility to apply to the Constitutional Court with the allegation that they are unconstitutional. In case of conflicts that may arise since the International Treaties on fundamental rights and liberty that have been enter into force and involve converse provisions on the same issue, the provisions of the International Agreement shall overwrite. (Constitution of the Republic of Turkey Art.90/5).
By the decision of the 2nd Civil Chamber of the Court of Cassation is “clearly” contrary to the Turkish public order that the arrangement of “joint custody”, referring to the Article 5 of Protocol No.7 says that it is not possible to violates the basic structure and fundamental interests of Turkish society; “PPIL Art.17/1, while it is necessary to make a decision regarding the case for the “joint custody” request, taking into the regulations regarding the custody in the mutual national law of the parties who are British citizens, by going into the merits of the matter and evaluating all the evidence along with, it is necessary to make a decision stating that the request is contrary to the Turkish public order, as necessitated by vitiation” due to the decision lead up for joint custody. The joint custody decision will be provided that the best interests of the child, by taking into consideration to judge.