Custody is all the rights and obligations granted to parents over the person and property of the minor child (TMK article 335). The right to custody covers the protection, education, care and representation of the child. In case of divorce or separation of parents, who will be given custody is determined within the framework of the principle of "best interest of the child".
Basic Principle in Determining Custody: Best Interest of the Child
According to TMK Article 182, the judge decides which one to give custody to after listening to the mother and father. When making a decision, the best interest of the child is essential. Factors taken into consideration in this context:
- The age and gender of the child (especially the tendency to be with the mother between the ages of 0-6 - established case law of the Supreme Court of Appeals)
- Economic situation and housing conditions of the parents
- The attitude, interest and sense of responsibility of the mother and father towards the child
- Mom and dad's lifestyle and social environment
- The view of the child of cognitive age (usually 8 years and above in practice)
- The child's school, social environment and psychological state
- Social examiner report
Types of Custody Cases
1) Custody Decision in Divorce Case
In a divorce case, the judge must decide ex officio about custody (TMK article 182/1). The parties' agreement on custody is not binding on the court; The judge may also decide against the agreement, taking into account the best interests of the child.
2) Case for Change of Custody (TMK article 183)
If the circumstances change after the divorce, a separate lawsuit is filed for the transfer of custody to the other parent. Terms:
- The parent to whom custody is givenmarries another person, moves to another place, or dies
- Neglect of child care
- Living conditions that would cause moral harm to the child
- Situations that threaten the child's physical or mental health
- The stable desire of the child in the cognitive age
3) Removal of Custody (TMK article 348)
Custody is abolished in cases where the child's physical and mental development is in danger, the parents grossly neglect their duties arising from custody or grossly abuse their authority. In this case, a guardian is appointed for the child (TMK article 404).
Social Review Report
Family courts base their decision largely on the social review report. The family court social worker, pedagogue or psychologist prepares the report. Expert; visits the parents' home environment, meets with the child, obtains the opinion of the school/teacher, and expresses an opinion on which party should be given custody to the best interest of the child.
Hearing the Child (UN Convention on the Rights of the Child, art. 12)
According to the consistent jurisprudence of the Supreme Court of Appeals 2nd HD, a child of cognitive age (usually 8 years old and above) should be heard by the court personally or through an expert in the custody issue. The child's opinion is not binding on the court, but it is an important element to be taken into account when making a decision.
Relationship with Participation Alimony (TMK article 182/2)
The parent who is not given custody must participate in the child's care and education expenses in proportion to his financial ability. This obligation is called child support. It continues until the child reaches adulthood (18 years of age); If education continues, it may be extended for a reasonable period of time.
Right to Personal Relationship (TMK art.182/2, 323-324)
It is mandatory to establish a personal relationship between the parent and the child who are not given custody. The court adopts the following framework in practice:
- Specific weekends each month (usually the 1st and 3rd weekend)
- Specific time during semester break
- 15 days - 1 month during summer vacation
- 1st or 2nd day of religious holidays
- Father/mother's day
Supreme Court Approach
According to the established jurisprudence of the Supreme Court 2nd HD, custody is not a right that must be given to the mother or father; In each file, the concrete child's best interests are evaluated. However, it is an established approach to prefer the mother during the 0-6 age period due to the need for "mother's love and affection". For children aged 7 and over, the child's wishes and opinions and the parents' conditions come to the fore.
Abuse of Custody
Parent given custody:
- Prevent personal contact between the child and the other parent,
- Turning the child against the other parent,
- Using the child support for other purposes,
- Using physical/psychological violence against a child
If he behaves like this, the door to changing custody case is opened.
Jurisdictional and Competent Court
- Officer: Family Court.
- Authority: The court of the child's place of residence or the requester's place of residence (TCC art.6, TMK art.20).
Practical Tips
Since custody cases directly affect the future of the child, it is of great importance to work with a lawyer specialized in family law from the beginning.