Joint Custody in Turkish Law
What is Joint Custody?
Custody encompasses all responsibilities and powers assigned by the lawmaker to parents regarding the personal and property matters of their children. Joint custody means that parents manage their children with equal authority and agreement.
How is Joint Custody Implemented?
In case of divorce, the decision of joint custody given by the judge may include the child staying with one parent continuously or alternating between parents, while also maintaining a relationship with the other parent. Joint custody is based on the principle that parents make important decisions about the child together.
What Custody Model Does the Judge Determine in Case of Divorce?
In every divorce case, if there are minor children involved, the judge must decide on the custody model considering the child’s best interest. The judge should listen to the preferences of the parents and the child and evaluate all conditions of the case to determine the custody model.
In this context, the judge should especially consider the parents’ ability to care for and raise the child, their personal relationships, and communication skills.
There may be a conflict of interest between the mother, father, and child when determining the custody model in case of divorce. However, the interest of the child should be prioritized by the judge. The judge must decide on the custody model that will best serve the child’s welfare. The concept of the child’s best interest refers to ensuring conditions that will support their emotional, mental, physical, and social development at the highest level.
Joint Custody in Uncontested Divorce
In the case of an uncontested divorce, the spouses must agree on the status of the children, based on Article 166 of the Turkish Civil Code. The spouses can decide to continue sharing custody after the divorce within the framework of their contractual freedom.
Joint Custody in Uncontested Divorce Protocol
A joint custody uncontested divorce protocol is an official document prepared by the spouses to reach an agreement on the custody of their children during the divorce process. This protocol details how the spouses will share the care, custody, financial responsibilities, and other important matters concerning the children.
The protocol is prepared to ensure a fair and balanced custody arrangement between the spouses. Joint decisions are made considering the child’s needs, the parents’ work and living conditions, financial situations, and other factors.
Once approved by the court, the protocol becomes an official document and is implemented as part of the divorce decision. This way, the spouses have a legally binding agreement on the custody of their children.
Joint Custody in Contested Divorce
Controversial Issues
Article 336 of the Turkish Civil Code states, “Custody, (…) in divorce, belongs to the party to whom the child is left.” However, this provision does not contain a clear instruction on whether the judge should leave the child to one parent or under joint custody despite the divorce. Therefore, whether the judge can leave the child under joint custody despite the divorce remains controversial.
In Turkish law, the issue of whether joint custody will be applied after divorce is debated around two main legal regulations. The first is the provision in Article 182/2 of the Turkish Civil Code, which states, “In arranging the personal relationship of the spouse not granted custody with the child, the child’s (…) interests are considered.” This provision does not conclude that joint custody is impossible but merely states that the relationship with the child is arranged when only one party is granted custody.
The real debate is about the provision in Article 336/3 of the Turkish Civil Code, which states, “Custody, (…) in divorce, belongs to the party to whom the child is left.” This provision states that in case of divorce, custody belongs to the party to whom the child is left. However, there are different opinions on whether this provision prevents the judge from making a joint custody decision.
Joint custody in case of divorce, where there is no severe conflict between the parents, and they can communicate, may be more beneficial for the child than sole custody. However, it cannot be said in advance that joint custody should be decided in every divorce, or sole custody should be decided only in exceptional cases.
Which custody model is more suitable for the child’s best interest should be determined by considering all details in each case. However, considering that custody is a fundamental right of the parents and that deciding on sole custody in case of divorce may eliminate one parent’s right, deciding on sole custody should not be easy, and this matter should be carefully considered. However, this determination does not mean that a distinction should be made between types of custody in the law.
When making legal regulations, it is important to consider the socio-cultural conditions of each country. Factors that may hinder the healthy functioning of joint custody, such as domestic violence (especially cases where the woman divorces due to violence), and the inability of parents to establish even a minimum level of civil relationship after divorce due to cultural factors, can vary from country to country.
Therefore, the arrangement in the laws of most European countries where joint custody is the rule and sole custody is the exception in case of divorce does not necessarily lead to the same conclusion in Turkish law.
Cases Where Joint Custody Should Not Be Granted in Divorce
For joint custody to function healthily, conditions such as the absence of a severe conflict environment, the parents being able to communicate healthily, and both parents having the ability to carry out custody must come together.
Reasons for Removal of Custody
Article 348 of the Turkish Civil Code specifies the reasons for the removal of custody. These reasons include the parent’s lack of sufficient interest in the child, application of violence, addiction to alcohol or drugs, etc. If it is determined that both parents cannot take care of the child for these reasons, the judge may appoint a guardian for the child.
However, if only one parent is affected by these reasons and the other parent is capable of exercising custody, the judge may grant sole custody to this parent. This way, the child’s care and other needs can be met more effectively.
It should be noted that if one of the parents is incapable of taking responsibility for reasons other than those requiring the removal of custody, the judge has the authority to grant sole custody to this parent. For example, if one of the parents exhibits inconsistent behavior that undermines the child’s sense of security, the judge’s decision to grant sole custody to the other parent may be in the child’s best interest.
Presence of Continuous Conflict Between Parents
A continuous, serious, and chronic conflict between parents may justify granting sole custody to one parent. In this case, it must be determined based on concrete facts that joint custody would harm the child’s best interests.
However, occasional disputes or differences of opinion that may occur in every family are not sufficient reasons for granting sole custody. Especially, different opinions of parents on child-rearing are not sufficient reasons to grant sole custody.
Lack of Willingness or Ability of Parents to Cooperate and Communicate with Each Other
For parents to carry out joint custody healthily, even at a minimal level, they need to be able to cooperate and communicate with each other. However, if there is no possibility of cooperation and communication, granting sole custody may be in the child’s best interest.
Especially, if the continuous deadlock between parents is due to one party consciously refusing to cooperate with the other parent, how should the situation be handled? In this case, sole custody may need to be given to the party ready for cooperation and communication, not the one preventing it.
Granting Custody to One Parent at the Joint Request of the Parents
In the case of divorce, if parents agree that custody should be carried out by one parent and make this request to the judge, the judge must consider this agreement.
However, the judge should grant such custody only if it is determined to be in the child’s best interest. Even in uncontested divorces, the arrangement regarding the custody of the joint children is valid only if the judge finds it appropriate.
If one parent does not want to take responsibility for the child’s care and upbringing, it should not be forgotten that joint custody is often not in the child’s best interest. Because a person cannot voluntarily give up custody responsibility; however, it will not be feasible to force a person who insists on not taking care of the child.
Who Pays Alimony in Joint Custody?
In the case of joint custody, alimony is usually paid by both parents to cover the child’s care and needs. However, if custody is granted to only one parent, alimony payments and the child’s personal relationships are arranged according to certain rules. In this case, alimony payments and other matters are determined by court order.
Although Article 182 of the TMK does not contain a specific provision regarding the granting of custody directly, a definite conclusion cannot be reached that joint custody will not be granted to the mother and father when the entire provision is examined. Therefore, in cases where joint custody is not granted, matters such as the child’s personal relationships and alimony are determined by court order.
Another important provision regarding the examination of joint custody is Article 336 of the TMK. This article discusses the use of custody during the marriage, when cohabitation ends or in case of separation, and the use of custody in case of the death of one spouse or divorce. Within these provisions, the court is authorized to decide which party custody will be granted to and how much alimony the spouse not granted custody will pay to the child.
Can a Child Move to Another City in Joint Custody?
In joint custody, parents must make decisions regarding their children together. However, according to the Turkish Civil Code, a parent must obtain the other parent’s permission for important decisions such as moving to another city with the child. Therefore, in a situation where the child is under joint custody, a parent cannot unilaterally decide to move the child to another city. However, if the other parent agrees or the court grants this permission, a parent can decide to move the child to another city.
Child’s Residence in Joint Custody
In joint custody, the child’s residence is determined by agreement between the parents or by court order. The most appropriate solution is sought by considering the child’s physical, emotional, and educational needs. It is important for the child to maintain a relationship and spend time with both parents while determining the residence. The court takes the parents’ opinions and makes its decision by considering the child’s best interests.
Joint Custody Decision After Divorce with Foreign Nationals
The first decision regarding joint custody after divorce in Turkish law was made on May 27, 2009, at the Izmir 4th Family Court, considering the parties’ request and the best interest of the child.
Applications to the Court of Cassation regarding joint custody have generally involved disputes with foreign elements or the recognition of joint custody decisions made by foreign courts. The Court of Cassation, in its precedents until 2017, did not recognize foreign court decisions on the grounds that the provisions of the Turkish Civil Code regarding custody were mandatory and related to public order. However, with a decision dated February 20, 2017, the Court of Cassation reversed its precedent, stating that joint custody in cases of extramarital birth or divorce is not contrary to Turkish public order.
The Court of Cassation later ceased granting joint custody decisions regarding foreign court decisions post-divorce, stating that these decisions were not contrary to Turkish public order. In these decisions, the Court of Cassation considered the regulations in Turkish domestic law and referenced international conventions, emphasizing the application of international agreements related to fundamental rights and freedoms.
Conclusion
The Importance of Joint Custody in Divorce
Scientific research has shown that joint custody is more beneficial for the child compared to sole custody, provided that conditions for its healthy functioning exist. Considering that the primary aim of the custody institution is to serve the child’s best interest, the possibility of parents exercising joint custody after divorce should not be denied if it is beneficial for the child.
Custody Arrangements in Divorce: Current Situation and Problems
The provision in Article 336 f. 3 of the TMK stating that custody in case of divorce belongs to the party to whom the child is left, does not allow the judge to order joint custody in case of divorce. The legislator’s adoption of a now outdated concept of family and the assumption that the child’s best interest can be best served through sole custody, particularly by granting custody to the mother, underlies this provision. However, it is argued that this provision is contrary to international conventions and the principle of the child’s best interest.
Role and Authority of the Judge
The determining criterion for the judge when deciding whether to grant joint custody or sole custody to one parent in case of divorce is the child’s best interest. The judge should consider all conditions of each case to determine which custody model is more beneficial for the child. The judge should consider the preferences of the parents and the child regarding the custody model, each parent’s ability to care for and raise the child, the current state of their relationship with the child, and their ability to cooperate and communicate with each other.
Joint Custody Court of Cassation Decision
SECOND LAW DEPARTMENT Case: 2022/1902 Decision: 2022/2470 Date: 15.03.2022
SUMMARY: In a case filed by the mother, the plaintiff-counter defendant, requesting the removal of joint custody and granting custody of the child to the father and arranging personal relationships with the children, the father filed a counter-suit requesting custody of the other child born in 2014 and child support.
The court accepted the mother’s claim and granted custody of one child to the father and ordered the arrangement of personal relationships. All the father’s claims were rejected, and the relationship with the other child was arranged for specific weekends.
Divorce and custody arrangements were made between the parties based on the relevant articles of the Turkish Civil Code. However, considering the father’s work situation, changes were made in the arrangement of personal relationships. The court’s decision was upheld with these changes.
(…) In the trial of the main case filed by the plaintiff-counter defendant mother requesting the removal of joint custody and granting custody of the joint child Kadir to the father and arranging personal relationships with the children, and the counter-case filed by the father requesting custody of the other joint child born in 2014 and child support for the children, the court accepted the mother’s case, granted custody of the joint child Kadir born in 2006 to the father, ordered the arrangement of personal relationships between Kadir and the mother, and canceled the child support ordered for Kadir. All the father’s claims were rejected, and the court ordered that the relationship between the father and the joint child … be arranged for the 2nd and 4th weekends of each month from Saturday at 10:00 to Sunday at 19:00, on the 2nd days of religious holidays in odd years from 10:00 to 19:00 on the 3rd days, on national holidays in odd years from 09:00 to 18:00, on the child’s birthdays in odd years from 09:00 to 18:00, for the second week of the first mid-term break of each year from Monday at 09:00 to Friday at 18:00, for the first week of each year’s winter break from Saturday at 09:00 to the following Saturday at 18:00, for each year’s summer holidays from August 1 at 09:00 to August 31 at 18:00, and on Father’s Day each year from 09:00 to 18:00.
It is understood that the parties divorced on 13/06/2018 pursuant to Article 166/3 of the Turkish Civil Code, joint custody was decided for the children, and personal relationships were established between the children, who reside with the mother, and the father on the basis of “The children will be taken from the mother at 18:00 on Fridays of even-numbered weeks and returned to the mother at 18:00 on Sundays, taken from the mother at 13:00 on the second day of religious holidays and returned to the mother at 18:00 on the third day, taken from the mother at 10:00 on the first day of August each year and returned to the mother at 18:00 on the 31st day of August, taken from the mother at 09:00 on the first Monday of the winter break and returned to the mother at 17:00 on the following Sunday.”
The defendant-counter plaintiff father stated that the personal relationship established with the joint child … should not be changed, that he works shifts and cannot always be at home on weekends, that he has to leave the child with the mother on Sundays when he works, and that he will spend little time with the child. It is understood from the collected evidence that the joint child is of school age, and therefore, the personal relationship established every week is not in the child’s best interest, and it is understood that arranging personal relationships for specific weekends of the month is more appropriate for the child’s best interest and welfare. However, considering the father’s work situation and sincere statements, it is more appropriate for the child’s best interest to establish personal relationships from Friday at 18:00 to Sunday at 18:00 on the 2nd and 4th weeks of each month. However, since correcting this error does not require a retrial, it is necessary to approve the decision as corrected in this regard (HMK Article 370/2).
CONCLUSION: For the reasons stated above in paragraph 2, the annulment of the decision of the regional court of appeal on the merits, the removal of the 7th paragraph of the judgment of the first instance court regarding the arrangement of personal relationships between the father and the child, and the replacement of the phrase “on the 2nd and 4th weekends of each month from Saturday at 10:00 to Sunday at 19:00” with the phrase “on the 2nd and 4th weeks of each month from Friday at 18:00 to Sunday at 18:00,” and the approval of the corrected part of the judgment, and the approval of the other parts of the appeal for the reasons stated in paragraph 1, and the refund of the appeal deposit to the appellant upon request, and the file to be sent to the first instance court, and a copy of the decision to be sent to the relevant regional court of appeal law chamber, it was decided unanimously. (…)
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Joint Custody in Turkish Law
