Child Custody Case in Turkish Law
Child custody case is the type of the civil case involving rights and obligations of parents related to the care, protection and education of minors, who are under 18 years old, or of majors under legal disability.
In Turkish law, custody is only granted to parents.
Child custody cases are usually filed during divorce cases or upon the realization of divorce.
The judge listens to spouses once divorce case is filed and deliver a provisional judgement on custody. After the divorce case is finalized and divorce is realized, the judge delivers the final judgment on custody.
HOW IS CUSTODY GIVEN TO A SPOUSE?
Custody is given to a spouse according to the uncontested divorce agreement in case of uncontested divorce. On the other hand, in case of contested divorce, custody is given according to the judge’s decision regardless of whether spouses claim it or not.
In child custody cases, the priority is the benefit of the child. The judge makes a decision on it, considering the age, education and mental capacity of the child. During and following the divorce process, the judge uses its best efforts so that the child will stay with the right parent.
In practice, the custody of a child aged 0-3 is usually given to the mother. It is because the child needs maternal care and love in this period and maternal care is more important than financial conditions.
In other age ranges, the judge delivers its judgement, considering the best interests of the child. The judge considers where the child develops best, physically and psychologically or materially and spiritually, and makes a decision accordingly.
In Turkish law, it is accepted that there should be joint custody during the marriage and sole custody after the divorce. However, in some of the Court of Cassation decisions, whether joint custody is accordance with public order is considered and decided that joint custody is not possible. There are also supreme court decisions later in the opposite direction.
For joint custody, the best interests of the child should be considered again, and parents should duly agree on this.
NOT PERFORMING THE CUSTODY OBLIGATION
The custodial parent should support the child in terms of its care, financial situation and education after custody is given to it. Unless the custodial parent violates its custody obligation, custody terms cannot be modified and its right of custody cannot be disentitled.
Non-performance or abuse of the custody are evaluated considering the following issues;
- Neglecting the child
- Leaving the child to someone else
- Abducting the child
- Abandoning the child deliberately
- Not guiding the child properly
- The following factors are also considered;
- Committing violence against the child
- Adulterous behavior
- Bad economic situation
- The state of having a job
- Bad behaviors,
- Alcohol addiction
If any of these situations exists, custody modification case or custody disentitlement case can be filed.
IN WHAT SITUATIONS CUSTODY IS NOT GIVEN TO THE MOTHER?
Especially, the custody of children at young ages are mostly given to the mother. However, in some situations, even though the child is at young ages, the custody of the child is given to the father. One of these situations is that the mother does not claim the custody of the child. Other situations may be that the mother is mentally ill, commits violence against the child or have bad habits.
WHEN DOES THE RIGHT OF CUSTODY END?
The Right of Custody cannot be transferred to another person as it is a right that is strictly attached to the individual. Unless there is a reason for the removal of the custody, the parent cannot waive the custody. As a rule, the right of custody ends after the child reaches the age of 18.
WHAT HAPPENS IF THE CUSTODIAN PARENT WITHHOLDS CHILD VISITATION?
When terminating the marriage, the judge provides for which parent will have the right of custody and when the other parent can visit the child and states it in the judgement. If new circumstances arise, this provision can be re-regulated.
If the custodian parent withholds child visitation, the other parent can visit the child by requesting it through enforcement proceeding. In this case, the custodian child should allow child visitation within 7 days upon the enforcement order is sent and notified to it. Otherwise, the custodian parent is made to do so by force through enforcement proceeding.