The Establishment of a Personal Relationship with the Child in Turkish Law
What is Establishing a Personal Relationship with the Child?
Establishing a personal relationship with the child is a right aimed at establishing and maintaining the internal relationship between a minor child and their parents. Although this right is generally regulated in TMK Article 323, its application is left to the discretion of the judge.
The right to establish a personal relationship was initially aimed at maintaining the child’s relationship with their relatives, but today it emphasizes the child’s need to establish a regular relationship with both their mother and father.
However, our Civil Code does not contain concrete rules on how, when, and how often the personal relationship between the child and their parents should be arranged.
Instead of setting specific rules on this issue, the law provides for the personal relationship to be “of appropriate nature,” allowing for adaptation to changing conditions over time.
Those Entitled to Establish a Personal Relationship
Mother and Father: In cases such as divorce, separation decision, or termination of cohabitation, the mother or father who does not have custody can establish a personal relationship with the child. Also, if custody rights have been revoked or the child has been placed with a family or institution, a personal relationship right may still exist. A mother or father who has not been the legal guardian of a child born out of wedlock can also establish a personal relationship with the child.
Third Parties: Under certain conditions and when it is in the child’s best interest, the Civil Code grants the right to establish a personal relationship to the child’s relatives.
Child: The right to establish a personal relationship is not only granted to the parents but also to the child. Considering Article 323 of the Civil Code and the provisions of the United Nations Convention on the Rights of the Child, this right is recognized as a right rather than an obligation for the child.
”Both parents and third parties can only establish a personal relationship with the child through a court decision. No personal relationship can be established without the consent of the person who has custody or to whom custody has been granted (TMK m. 326/III).”
Areas of Application for the Right to Establish a Personal Relationship:
The right to establish a personal relationship usually comes to the fore in cases of divorce and separation, but this right has a much broader scope of application. This scope includes:
Areas of application for the right to establish a personal relationship:
Divorce (Turkish Civil Code (TMK) m. 182/I-II, m. 336/III)
Separation (TMK m. 182/I-II, m. 336/II)
Termination of cohabitation (TMK m. 197/IV, m. 336/II)
When there is no marriage between the mother and father (TMK m. 337, m. 323)
When the custody right of the mother or father is revoked or changed (TMK m. 348, m. 323)
When the child is placed with another family or institution without revoking the custody rights of the mother and father (According to TMK m. 347)
Lack of Joint Custody
In Turkish law, since joint custody is not accepted outside the continuation of the marital union, the judge will grant custody to one of the spouses in cases of divorce, separation, or termination of cohabitation. If the parents are not married, custody is generally given to the mother according to Article 337 of the Turkish Civil Code. Similarly, if the custody rights of one or both parents are revoked, the parties cannot have custody rights.
The right to establish a personal relationship with the child is separate from the right of custody and is part of the right of personality. This right cannot be waived or transferred.
Agreements between the parties regarding this right are absolutely invalid.
In a Supreme Court decision, the personal relationship arrangements between the father and the children included in the uncontested divorce protocol were examined. Although the protocol specified how the personal relationship between the father and the children would be carried out, these commitments were deemed invalid on the grounds that they were contrary to the best interests of the children.
In Case the Child is Given Up for Adoption
In the case of the child being given up for adoption, although the parents do not have custody rights, they still have the right to establish a personal relationship with the child since the lineage relationship continues.
In this regard, solutions that are in the best interest of the child are adopted in doctrine and Supreme Court decisions.
For example, in a Supreme Court decision, it was stated that since the social examination report indicated that the child accepted as an adoptee knew their biological mother and that severing their relationship would have negative effects, it was ruled that an appropriate duration of personal relationship between the child and the biological mother should be established.
If the Child is Not Left to the Parent Despite Being Under Their Custody
Although the child is under the custody of the mother or father, if the child is not left to the parent, the judge can take the child from the parents and place them with another family or institution. The party with the right to establish a personal relationship does not need to have custody rights or have the child left to them.
However, according to Article 323 of the Turkish Civil Code, for a personal relationship to be established, the lineage relationship between the child and the parents must be established. If the lineage relationship is not established, the biological father can only establish a personal relationship with the child as a third party.
In a Supreme Court decision, it was emphasized that the plaintiff generally has the right to establish a personal relationship with the children since the lineage between the plaintiff and the children was established by a court decision, and it was necessary to take expert opinions if needed to make a decision on this matter.
Listening to the Child
According to the UN Convention on the Rights of the Child, children have the right to freely express their views on all matters affecting them. These views should be taken into account in accordance with the child’s age and maturity level.
According to the European Convention on the Exercise of Children’s Rights, children should be informed, consulted, and have the right to express their views.
The General Assembly of the Supreme Court stated that children’s views should be taken into account in the evaluation of personal relationships concerning them, and these views should be considered if they are in the best interests of the child. Therefore, children’s views should be valued, and decisions should be made with the support of expert witnesses if necessary.
How to Establish a Personal Relationship with the Child in Different Cities?
Establishing a personal relationship in different cities is done in a way that the judge decides the duration during the child’s school holidays or summer holidays. The judge also takes into account the annual leaves of the right holder when establishing this relationship. Additionally, this relationship can be established by deciding on a specific month of the year.
What is the Establishment of a Personal Relationship as a Precaution?
The establishment of a personal relationship as a precaution is the personal relationship with the child that the judge decides to establish during the divorce or separation case. The judge takes this decision as a temporary measure.
Restriction or Prevention of Personal Relationship with the Child
According to the European Convention, personal relationships between the child and their parents can only be restricted or prevented if it is required by the child’s best interests.
According to Article 324 of the Turkish Civil Code, there are four situations that may lead to the rejection, removal, or restriction of personal relationships: endangering the child’s peace; abuse of parental rights; insufficient interest in the child; or other important reasons.
Personal relationships can be permanently removed, temporarily suspended, or restricted. Permanent removal is applied as a last resort when there are no other options for the child’s best interests.
Judicial Support and Victim Services Directorates in Child Delivery or Establishing Personal Relationships with the Child
Decisions regarding child delivery or establishing personal relationships are executed by the “Judicial Support and Victim Services Directorates” with the best interests of the child in mind. This practice, which replaces the delivery through enforcement, is accompanied by experts or guidance counselors at the delivery locations.
Personal relationships with the child are carried out under the supervision of experts with the child’s best interests in mind. No fees are charged to the parties, and all expenses are covered by the Ministry of Justice budget. Initially, communication is established with the child and the parties, considering the children’s expectations, education, and school life.
All tasks and procedures are recorded. If there is a tendency to prevent the relationship, it is reminded that this may be a separate lawsuit and that it may be considered as evidence against the party in the custody case. Information and counseling are provided to the parties about the negative effects of potential conflicts on themselves and especially on their children.
A delivery order is issued, and if the child is not delivered according to the court-determined visitation schedule, verbal warnings are notified in writing. If the delivery still does not occur despite the written warnings, procedures provided by law are applied upon the complaint of the right holder. The parent who does not show the child can be punished with disciplinary detention upon complaint.
How is Personal Relationship Arranged in Joint Custody?
Termination of custody rights does not mean that the parent deprived of this right cannot establish a personal relationship with the child. Even if they do not have custody rights or the child is not left to them, the mother and father have the right to meet, visit, and communicate with the child. This right is considered a fundamental human right and is among the rights of both the parents and the child.
Ways to Establish a Personal Relationship with the Child
The most common way of establishing a personal relationship with the child is for the party with the right to establish a personal relationship to meet and spend a certain amount of time with the child (right to visit). However, if the child is young or health issues prevent travel, the party with the right to establish a personal relationship should visit the child at their location.
Visits generally take place in the environment of the party with the right to establish a personal relationship, so this party is responsible for picking up and returning the child. However, the party with custody of the child is also responsible for preparing the child if necessary. If the child is of an appropriate age and distance to travel alone, the custody holder is responsible for travel and delivery.
If the party with the right to establish a personal relationship with the child faces difficulties in visiting or communicating with the child, the custody holder should inform them of the situation.
This information can be provided in writing or verbally about the child’s condition. Similarly, the child should inform the party with the right to establish a personal relationship about events they experience and decisions they will make. This right to information is considered part of the right to establish a personal relationship and covers issues such as medical interventions, education, or career planning for the child.
In cases where the child refuses to establish a personal relationship due to a lack of discernment, it is not appropriate to force the child to establish a personal relationship against their resistance, on the grounds that they are under the influence of the parent holding custody.
The judge, who will determine the scope of the right to visit, should clearly and explicitly specify the duration of the personal relationship, thus providing explanations about the start and end times of the visit. Additionally, national and religious holidays and other special days should be considered in determining the appropriateness of the right to visit, ensuring the duration is reasonable to achieve the purpose of the personal relationship.
What is Establishing a Personal Relationship by Phone?
Establishing a personal relationship by phone is a form of communication used under Article 323 of the Turkish Civil Code regarding the right to establish a personal relationship with the child. In practice, courts decide on this form of communication by ruling that it should be used at certain hours on specific days of the week.
In addition to establishing a personal relationship by phone, other communication methods such as email, text messages, and video communication can also be ordered.
The Competent and Authorized Court in Establishing a Personal Relationship with the Child
For parents or third parties who do not have custody of the child or to whom the child is not left to establish a personal relationship with the child, a court decision is required. If a court decision has not yet been made, a personal relationship can be established with the consent of the parent who has custody or to whom the child has been left.
In this case, for example, a father who wants to establish a personal relationship with the child cannot do so without the consent of the mother who has custody or third parties cannot establish a personal relationship with the child without a court decision.
The competent courts are specified in Article 326 of the Civil Code. The courts competent to decide on divorce and the protection of the marital union are also competent to decide on establishing a personal relationship with the child. Additionally, the court of the child’s residence is also competent. In cases concerning the regulation of personal relationships with the child, Family Courts or Civil Courts of First Instance are responsible.
Example Supreme Court Decision on Establishing a Personal Relationship with the Child
(2HD) Esas: 2016/14238, Karar: 2016/13906, Tarih: 20.10.2016
Following the trial of the case between the parties, the local court’s decision, whose date and number are shown above, was appealed by the plaintiff, and the documents were read, and the necessary considerations were made:
The plaintiff stated that they registered the minor born on 21.12.2002 as their own child without adoption, with the consent of the defendants, that the minor stayed with them until 21.02.2012, and knew them as their mother, that the defendants filed a lawsuit for the annulment of the registration, and that the minor was registered in the defendants’ household. The plaintiff requested the establishment of a personal relationship with the minor … after this date.
As a result of the trial, the court ruled that the plaintiff’s request was rejected on the grounds that the lineage between the plaintiff and the minor was terminated, but custody and personal relationship could be based on the lineage.
Personal relationships with third parties are regulated in Article 325 of the Turkish Civil Code, and it is stated that if extraordinary circumstances exist, other persons who have the right to establish a personal relationship with the child, especially relatives, may also have this right as long as it is in the child’s best interests.
As can be understood from this article, third parties who have the right to establish a personal relationship are not limited to relatives, and there is no requirement for the establishment of lineage to request the establishment of a personal relationship. According to the Turkish Civil Code No. 4721, other persons who are not relatives can also establish a personal relationship with the child if the conditions are met.
The evidence collected showed that the minor … was born on 21.12.2002 and was registered as the plaintiff’s child in the population registry until the defendants filed a lawsuit for the correction of the lineage. The decision of … Civil Court of First Instance dated 2013/227, decision 2014/92 ruled the correction of the lineage of … and registration in the defendants’ household. This decision became final on 13.06.2014.
Although the lineage between the minor … and the plaintiff was terminated, it was evident that the minor had been raised by the plaintiff since birth and knew the plaintiff as their mother. In the hearing, … also stated that they wanted to establish a personal relationship with the plaintiff, who acted as their mother and raised them.
As long as it is not against the interests of the child, the plaintiff’s request to establish a personal relationship with the minor should be granted. There is no serious and convincing evidence or reason to suggest that establishing a personal relationship between the plaintiff and the minor would be contrary to the child’s interests. Therefore, the plaintiff’s request for the establishment of a personal relationship with the minor should have been granted, rather than being rejected.
RESULT: For the reason explained above, the appealed judgment is REVERSED, the appellate fee to be returned upon request, and a correction to the decision can be made within 15 days from the notification of this decision.
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The Establishment of a Personal Relationship with the Child in Turkish Law
