Child Custody Case

Custody is the set of rights and obligations relating to the care, education, protection and representation of a minor child. For as long as the marriage continues, the mother and father exercise custody together. In the event of divorce, separation or a significant change that arises later, who will be granted custody is determined through a custody case. In these cases, the court looks less at the wishes of the parents and more at which arrangement is more suitable for the child's psychological, physical and social development.

Custody disputes are the most emotionally charged area of family law. Not letting the tension between the parents spill over onto the child is important both for the child's well-being and for the court's assessment.

In which situations is a custody case filed?

The custody issue arises in different proceedings:

• Within a divorce or separation case: When deciding on divorce, the judge regulates custody by taking into account the rights of the mother and father and the interests of the child (Turkish Civil Code Art. 182).
• Modification of custody: If new facts arise after the divorce, a change to the custody arrangement may be requested (Turkish Civil Code Art. 183).
• Removal of custody: If other measures aimed at protecting the child have failed or are considered insufficient, custody may be taken from a parent in the serious situations listed in the law (Turkish Civil Code Art. 348).
• Child born out of wedlock: If the mother and father are not married, custody belongs to the mother; if the mother is a minor, under guardianship or deceased, or if custody has been taken from her, the judge appoints a guardian or grants custody to the father, according to the child's interests (Turkish Civil Code Art. 337).

In all of these cases, the competent court is the family court; in places where there is no family court, the civil court of first instance hears the case in that capacity. Removal of custody, unlike modification, is a far more serious intervention. The law provides for this route where a parent cannot properly perform the custodial duty due to reasons such as inexperience, illness or absence, or where the parent fails to show sufficient care for the child or seriously neglects their obligations toward the child. A parent whose custody has been removed remains obliged to contribute to the child's maintenance expenses. Which case should be filed must be determined according to the seriousness and urgency of the events experienced; choosing the wrong type of case leads to wasted time.

On what basis does the court decide?

The decisive criterion is the best interests of the child. In applying this criterion concretely, the court evaluates the following factors together:

• The child's age, gender and health condition,
• The bond each parent has with the child and who has provided care up to now,
• Preserving the home, the school environment and the social setting the child is used to,
• The parents' work schedules and the time they can devote to the child,
• Not separating siblings from one another,
• Whether the parent supports the child's relationship with the other parent.

Although the Court of Cassation's practice accepts that a young child needs the mother's affection and care more, this alone is not decisive. A parent's income level alone is likewise not considered a ground for custody; economic shortfalls can be remedied through child support (contribution alimony).

The child's opinion

The opinion of a child who has reached the age of discernment on the matter of custody is heard and taken into account in the assessment. This approach is based on Article 12 of the United Nations Convention on the Rights of the Child, to which Turkey is a party. The child's opinion is usually taken in the presence of a pedagogue or psychologist working at the family court, in an environment that will not distress the child. The child's wishes matter; however, if the judge believes those wishes are contrary to the child's interests, the judge may decide differently.

Social investigation report

One of the most important pieces of evidence in custody cases is the social investigation report. A psychologist, pedagogue or social worker working at the family court meets with the parents and the child, examines the home environment if necessary, and presents an assessment of which arrangement is in the child's best interests. The report does not bind the judge, but it often carries weight in the reasoning of the decision. The report can be objected to within the prescribed time, and if the investigation is incomplete, a new report may be requested.

Is joint custody possible?

The Turkish Civil Code does not expressly regulate joint custody in divorce. However, relying on Article 5 of Protocol No. 7 to the European Convention on Human Rights, which Turkey has ratified, the Court of Cassation has accepted that joint custody is not contrary to public order; in practice, post-divorce joint custody may be ordered where the parents agree to it and the arrangement is found to be in the child's best interests. For joint custody to function well, there must be a minimum level of communication and common ground between the parents; for this reason, it generally comes up in uncontested divorce protocols.

Personal contact and child support

The parent who has not been granted custody has the right to maintain personal contact with the child (Turkish Civil Code Art. 323). The court determines in detail the days, hours and duration of this contact, including periods such as weekends, holidays and the summer break. If personal contact endangers the child's well-being, it may be restricted or removed (Turkish Civil Code Art. 324). The parent who has not been granted custody is also obliged to contribute to the child's care and education expenses in proportion to their means; this contribution is set as child support (contribution alimony).

Modification of custody and the process

Decisions on custody do not produce a final result; they can be reassessed when circumstances change. Facts such as the custodial parent neglecting the child, alienating the child from the other parent, changing their place of residence to the child's detriment, or remarrying in a way that negatively affects the child's situation may constitute grounds for modification. A modification case is filed at the family court; the court has a new social investigation carried out and often hears the child. We have covered this topic in detail in our guide to custody modification cases.

During the proceedings, temporary custody and temporary personal contact arrangements may be requested if needed. School records, medical reports, witness statements and correspondence are the main pieces of evidence supporting the claims. Every file is unique; the child's age, the family structure and the parents' circumstances directly affect the outcome, and the specific situation must be assessed separately.

How our firm supports you

In custody cases, we take care to gather evidence without placing the child at the center of the process, to prepare for the social investigation process, and to object to the report where necessary. Our aim is to help reach a workable arrangement that puts the child's interests first. We also support our clients on matters such as personal contact violations that arise after divorce and the updating of child support.