Custody is the legal bond and authority between the parents and the child (TMK article 335). It is possible to decide who will be given custody after the divorce or to change custody over time.
The Best Interest Principle of the Child
In all decisions regarding custody, the judge takes the "best interest of the child" as the primary criterion. This principle stems from United Nations Convention on the Rights of the Child article 3 and TMK article 182.
Factors Considered by the Judge
- Child's age, gender and health condition
- Current attachment with parents
- Economic and social conditions of the parties
- The child's educational and developmental needs
- The effect of hostility between parents on the child
- Pedagogue/psychologist reports (social investigation report)
Obtaining the Child's Opinion
The Constitutional Court has emphasized that in many individual applications, obtaining the opinion of a child of cognitive age (approximately 8 years old and above) is mandatory within the scope of the right to a fair trial. Opinions are obtained through judges, expert pedagogues or child surrender centres.
Conditions for Changing Custody (TMK article 183)
Joint (Joint) Custody
Shared custody has been a controversial issue in Turkish law for a long time. In the decision numbered 2017/11733 E. - 2017/13117 K. of the 2nd Civil Chamber of the Supreme Court of Appeals, it was accepted that joint custody decisions can also be made in domestic law since Protocol No. 11 has been approved by the Grand National Assembly of Turkey. However, the condition is: it is requested jointly by the parties and it is for the benefit of the child.
Obligations of the Custodian
- Care, education and representation of the child (TMK article 339)
- Not to interfere with the maintenance of the child's personal relationship with the other parent
- Management of the child's assets, if any (Art. 352)
Important Jurisprudence of the Supreme Court of Appeals
In its decision numbered HGK 2018/2-1192 E., the Supreme Court of Appeals stated that custody cannot be automatically given to the mother on the assumption that the separation of the child from the mother will cause trauma, and that the individual capacity of the parents must be evaluated with concrete evidence.
Jurisdictional and Competent Court
- Officer: Family Court
- Authority: Court of the child's place of residence
Custody cases have decisive consequences for the child's future; It is recommended to manage the process with a lawyer experienced in family law.