The Crime of Withholding Child Visitation in Turkish Law

CRIME OF WITHHOLDING CHILD VISITATION

The crime of abducting and detaining a child by the party who does not have custody is commonly known as withholding child visitation. Unfortunately, cases of intra-family child abduction and preventing the child from seeing the other parent occur in our country. To address this issue, the legislator has classified the abduction and detention of a child as a crime under the Turkish Penal Code. Additionally, there are regulations concerning this issue in the Child Protection Law and the Execution and Bankruptcy Law.

The crime of withholding child visitation is a crime against family order. While joint custody is possible, custody of the child is usually granted to one of the parties following divorce proceedings. The party with custody is obliged to allow the other party to see the child within the limits determined by the judge. However, it is a crime for a parent or third-degree blood relative who has had their custody rights removed to abduct or detain a child under the age of 16. This issue is regulated under Article 234 of the Turkish Penal Code. For detailed information on the crime of withholding child visitation, you can visit our office and receive legal support from specialized lawyers.

HOW DOES THE CRIME OF WITHHOLDING CHILD VISITATION OCCUR?

The legislator states that the crime of withholding child visitation occurs when a parent or third-degree blood relative, who has had their custody rights removed, abducts or detains a child under the age of 16 from the custody, guardianship, or care of the person without using force or threat. In this case, the perpetrator will be sentenced to imprisonment for a period of three months to one year. The crime of withholding child visitation can occur through two different actions:

1. Abducting a child under the age of 16 without using force or threat

2. Detaining a child under the age of 16

The abduction of a child involves taking the young child away from the people under whose custody or guardianship they are and taking them to another place. This abduction can be carried out in different ways, such as dragging the child, taking them along, or directing the child to another place. The fact that the perpetrator is unable to take the child to the desired place does not prevent the formation of the crime.

Detaining the child occurs when the child voluntarily goes to the person detaining them. It is the act of the perpetrator detaining the child who has voluntarily come under their control. For example, if a child goes to the father’s place with the mother’s permission, and the father does not return the child, the child has been detained. This situation frequently occurs, especially when the non-custodial party takes the child within the personal relationship determined by the judge but does not return them. In this case, the child is detained, and the person doing so is committing a crime.

WHO CAN COMMIT THE CRIME OF WITHHOLDING CHILD VISITATION?

The crime of withholding child visitation can only be committed by certain individuals. If other people abduct or detain the child, another crime will occur, and they will be subject to a different penalty.

Perpetrators of the crime of withholding child visitation include:

– A parent who has had their custody rights removed

– Third-degree blood relatives who have had their custody rights removed

In this context, in-laws cannot be perpetrators of this crime. If in-laws commit these acts, another type of crime will come into play (TCK 109).

It should be noted that the third paragraph of the article regulating the crime of withholding child visitation addresses another situation. According to this, anyone who, even with the child’s consent, keeps a child who has left home without the knowledge or consent of their legal representative, without informing the family or the authorities, also commits this crime. Therefore, anyone can commit this crime under these circumstances. In this case, the person who keeps the child who has left home will be sentenced to imprisonment for a period of three months to one year. Therefore, if the situation in the third paragraph applies, anyone can be the perpetrator, and there is a difference in the duration of the penalty.

WHO CAN FILE A LAWSUIT FOR THE CRIME OF WITHHOLDING CHILD VISITATION?

As a rule, the victim of this crime is primarily the child themselves, as well as the child’s custodian, guardian, or the person under whose care they are.

The victim child must be under 16 years old. If the child is under 16, their consent will not be significant. If the child is over 16 and is abducted or detained with their consent, this will not constitute a crime. In this case, the child’s consent will prevent the formation of the crime.

IN WHAT CASES IS THE PERPETRATOR GIVEN A HIGHER SENTENCE?

The second paragraph of the crime of withholding child visitation addresses situations where the penalty given to the perpetrator will be increased. According to this provision, the penalty will be doubled in the following cases:

1. If the child is abducted or detained using force or threat

It should be noted that force or threat is not required for the crime of abducting or detaining a child. However, if a child under 16 is abducted or detained using force or threat, the perpetrator’s penalty will be increased. Force and threat will constitute the aggravated form of the crime.

2. If the child is under 12 years old

If the abducted or detained child is under 12 years old, the penalty given to the perpetrator will be doubled.

PENALTY FOR THE CRIME

The penalty for this crime is imprisonment for a period of three months to one year. This crime is prosecuted ex officio, meaning it is investigated automatically. There is no need for a complaint to investigate the crime.

VIOLATION OF CHILD HANDOVER ORDER

Violating a child handover order also constitutes a crime. This situation is regulated in the Execution and Bankruptcy Law. Accordingly, there is a penalty for violating a child handover order. If there is an order for the handover of the child or a precautionary decision, those who act contrary to this order will be punished with up to three months of disciplinary imprisonment upon complaint. This also applies to those who obstruct the fulfillment of the handover order. For example, if the mother or father obstructs the officials who come to hand over the child in accordance with the handover order, a disciplinary penalty will be imposed. However, a complaint must be filed within one month.

Other situations related to the violation of child handover order include:

– Those who act contrary to the order to establish a personal relationship with the child or precautionary decisions and those who obstruct the fulfillment of the order

If these people are complained about within one month, they will be punished with disciplinary imprisonment of three to ten days.

– Those who do not bring the child to the specified place at the end of the period specified in the order or precautionary decision for establishing a personal relationship with the child

If these people are complained about within one month, they will be punished with disciplinary imprisonment of up to three months.

 

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