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What is the Custody (Restriction) Case?

Guardianship serves the purpose of protecting minors who are not under custody and adults who are incapable of managing themselves and their property for various reasons, and to ensure their security in the field of rights and law.

Minors who are not under custody are placed under direct custody without restrictions. Adults who are incapable of managing themselves and their property must be restricted in order to be under guardianship. In this case, there are two areas called “minority” and “limitation”, which require guardianship and being placed under guardianship.

GUARDIANCE DUE TO MINORITY

Minors are under the custody of their parents until the age of 18, no matter what. Parents will supervise the children. For this reason, minors do not need to be placed under guardianship. Custody for minors will only be available if the children are not under custody.

If both parents have died or both are absent, or if custody has been removed from the parents by a court decision, the child will be in the status of “child not under custody”. Since the custody of a child born out of wedlock will be given directly to the mother, and in the event that this mother dies, the court will either give custody to the father or take it under guardianship with a court decision, according to the child’s best interests.

GUARDIANCE DUE TO RESTRICTION (RESTRICTION)

Restriction is the restriction of people who need to be protected and observed for one of the reasons specified in the law, by a court decision. Adults who cannot protect themselves in terms of considering their personal interests, for reasons listed as limited in the Civil Code, are restricted for protection purposes. In this case, the court will appoint a guardian for them. However, if their mother or father is alive, they will be placed under custody.

REASONS FOR RESTRICTION

The reasons for the restriction are specified separately in the law. For this reason, it is not possible for a person to be restricted in the law except for the limited cases. This reasons;

1-GUARDIAL DUE DUE TO MENTAL DISEASE OR MENTAL WEAKNESS

According to Article 405 of the Civil Code, “any adult who is unable to work due to mental illness or mental weakness, or who constantly needs help for his/her protection and care, or who endanger the safety of others, is restricted.”

Accordingly, the fact that a person is mentally ill does not mean that that person will be strictly restrained. Due to mental illness or mental infirmity, the person is unable to perform his/her own affairs, requires ongoing assistance for his/her protection and care, or poses a danger to others.

2- LIMITATION DUE TO SUPPOSITION, ALCOHOL OR DRUG ADDICTION, BAD LIVING STYLE OR MAD MANAGEMENT OF ITS

It is regulated in Article 406 of the Civil Code. A person may be restricted due to extravagance, alcohol or substance abuse, poor life or poor management of one’s assets. However, apart from the existence of these reasons, it is also necessary for the person to “put himself or his family at risk of falling into hardship and poverty, and therefore need constant protection and care” or “threaten the safety of others” for these reasons.

Extravagance makes expenditures without calculating the income-expenditure balance, disproportionately and without any benefit. It must have reached the level of passion. For this reason, the person or his family must be constantly in danger.

Alcohol addiction means excessive dependence on alcoholic beverages and the inability to quit. The person should be drinking alcoholic beverages constantly, not from the occasional drink, but in the state of drunkenness.

They do not behave in bad ways, contrary to general morality, incompatible with the social order and required by the order. To summarize; is to lead a life that is bad, contrary to morality and society.

Mismanagement is when a person does not deal adequately with one’s property and finances.

3- RESTRICTION OF LIBERTY DUE TO BINDING PENALTY

Anyone who is sentenced to a prison sentence of one year or more is restricted. The court in charge of carrying out the penalty is obliged to automatically notify the situation to the relevant guardianship authority.

It does not matter whether the person whose freedom will be restricted due to a binding penalty can run his own business. Being convicted is sufficient for restriction.

4- RESTRICTION ON PERSON’S OWN REQUEST

According to Article 408 of the Civil Code, it is stated that if a person proves that he is unable to perform his work due to his old age, disability, inexperience or serious illness, he can prove his restriction.

For this reason, in order for the restriction to occur, the person must demand it himself. The court cannot do this on its own.

PROCEDURE IN RESTRICTION ACTIONS

Hearing of the person by the court; In cases of extravagance, alcohol and drug addiction, poor lifestyle, restriction caused by mismanagement, and restriction of one’s own will, the court will make its decision after hearing the person to be restricted. The court and the law prescribe such a condition. The reason for this is to protect the person who is likely to be restricted from his malicious environment and relatives. It is also because he does not want to be content with only their claims and proofs. For other reasons of restriction, it is not necessary to listen to the person himself.

Applying to an expert; “The restriction of a person due to mental illness or mental weakness can only be decided on the basis of the official health board report.” (Civil Code article 409/2)

Again, if the court so wishes, it will listen to the person who is requested to be restrained, taking into account the medical board report.

Announcement of Restriction Decision; After the restriction decision of the court becomes final, it is announced both in the place of residence of the restricted person and in the place where he/she is registered.

The restriction becomes effective for third parties only from the date of announcement. Until this period, legal transactions made with a limited person will be valid.

DUTIES AND AUTHORITIES IN GUARDIAN CASE

The court that is responsible and authorized for the custody of the person, the appointment of a guardian, the change of guardian and the removal of guardianship is determined as the Civil Court of Peace in the settlement of the minor or the restricted person.

For more detailed information about the custody case, you can contact us on our contact page.