Adoption Requirements and Procedure — Application, Assessment and Court Decision
Adoption requirements, the application procedure, the adoption of minors and adults under TMK Arts. 305-320, the court stage and international adoption, examined in detail.
What Is Adoption?
Adoption is a legal institution governed by Articles 305 to 320 of the Turkish Civil Code (TMK) No. 4721, enabling a person to establish a parent-child relationship with another person's child. Adoption takes effect by court order, and the adopted person acquires the status of the adopter's lawful child.
The institution of adoption places the best interests of the child first; it aims to ensure that the child's care and educational needs are met within a family environment. Turkish law subjects the adoption of minors and of adults to separate conditions.
Adoption is a judicial act and takes effect only by court order. An adoptive relationship cannot be created by administrative act or by agreement between the parties.
Adoption of Minors
For a minor to be adopted, the minor must have been cared for and educated by the adopter for at least one year, the adoption must serve the minor's interests, and the interests of the adopter's other children must not be inequitably harmed. There must be an age difference of at least eighteen years between the minor and the adopter (TMK Art. 308). The consent of a minor capable of discernment and the consent of the parents are governed by TMK Arts. 308–311.
As a rule spouses adopt jointly; persons who are not married cannot adopt jointly. The spouses must have been married for at least five years or have completed thirty years of age (TMK Art. 306). One spouse may adopt the other's child where they have been married for at least two years or where the adopter has completed thirty years of age; these conditions are alternative, not cumulative. In joint adoption the age difference is required in respect of each spouse; the limited statutory exceptions are reserved.
Adoption of Adults
The adoption of adults (persons aged 18 and over) is governed by TMK Arts. 313-314. The adoption of adults is subject to more restrictive conditions than the adoption of minors.
Conditions (TMK Art. 313)
For an adult to be adopted, one of the following conditions must be satisfied:
- Physical or mental disability: the person to be adopted is permanently in need of care by reason of physical or mental disability and the adopter has provided that care for at least five years
- Care during minority: the person to be adopted was cared for and educated by the adopter for at least five years while a minor
- Other just causes: the existence of just causes such as the adopter having shared family life with the person to be adopted for at least five years
In the adoption of adults, the express consent of the adopter's descendants is required (TMK Art. 313/3).
Limitations on the Adoption of Adults
In adult adoption the adoptive relationship as a rule takes effect only between the adopter and the adoptee. As a rule no relationship of kinship arises with the adopter's relatives. This is a significant difference from the adoption of minors.
The Adoption Application Procedure
For the adoption of a child in institutional care, an application is made to units of the Ministry of Family and Social Services, followed by a social investigation, matching and monitoring process. In intra-family, step-child and adult adoptions, administrative matching is not a mandatory first step in every file; the matter may proceed directly to the court and the necessary investigation.
The minor must have been cared for and educated by the adopter for at least one year. The total duration of the administrative and judicial stages varies according to the file, the records, the consents and any foreign element; no unofficial guarantee such as “2–4 years” is given.
Legal Consequences of Adoption
The adoptee becomes an heir of the adopter, takes the adopter's surname and, if a minor, comes under the adopter's parental authority. The rights and obligations belonging to the parents pass to the adopter. That said, under TMK Art. 500 the adoptee's succession rights within their own family continue; adoption does not entirely extinguish all the consequences of biological descent or succession within the biological family. The adopter and the adopter's relatives do not inherit from the adoptee.
| Legal consequence | Explanation |
|---|---|
| Descent | By court order a relationship of descent based on the adoptive relationship is established between adopter and adoptee. |
| Rights and obligations of parents | On adoption, the rights and obligations belonging to the parents pass to the adopter. |
| Parental authority | Where the adoptee is a minor, parental authority passes to the adopter. |
| Surname | The adoptee takes the adopter's surname; other consequences relating to name and surname are subject to the statutory conditions. |
| Succession to the adopter | The adoptee and the adoptee's descendants inherit from the adopter as blood relatives would. |
| Succession in the biological family | The adoptee's succession rights within their own family continue under TMK Art. 500. |
| The adopter's succession to the adoptee | The adopter and the adopter's relatives are not statutory heirs of the adoptee. |
| Legal consequence | Explanation |
|---|---|
| Citizenship | The citizenship of a foreign minor is subject to the conditions in Art. 17 of Law No. 5901; adoption alone cannot be presented as an unconditional automatic outcome. |
International Adoption
In countries covered by the Hague Convention, cooperation between central authorities, the best interests of the child, the possibilities for domestic placement and the consents given are all reviewed. Under MÖHUK Art. 18, capacity and the conditions for adoption are determined by the national law of each party at the time of adoption; in joint adoption by spouses, by the law applicable to the general provisions of the marriage; and, as regards consent, by the child's national law.
A foreign minor does not automatically and unconditionally become a citizen upon being adopted by a Turkish citizen. Under Art. 17 of Law No. 5901 the child may acquire Turkish citizenship as from the date of the decision, provided there is no impediment on grounds of national security or public order.
Annulment of Adoption
Where a legally required consent was not obtained, the person whose consent was required may, provided the best interests of the child will not be gravely harmed thereby, seek annulment of the adoptive relationship under TMK Art. 317. Where the adoption is vitiated by another substantive defect, the public prosecutor or an interested person may bring an action under Art. 318; if the defect has since been cured, or if annulment would gravely harm the child's interests, the outcome is assessed separately.
Under the current text of TMK Art. 319 the right of action lapses one year after the ground for annulment becomes known. The five-year long-stop period formerly contained in the article was annulled by the Constitutional Court; that period cannot be applied as current law. For past events, the dates of entry into force and finality must be examined separately.
The Difference Between Foster Care and Adoption
There are significant differences between foster care and adoption, two institutions frequently confused in practice:
| Feature | Adoption | Foster care |
|---|---|---|
| Legal nature | An adoptive relationship and a relationship of descent are established by court order. | An administrative care relationship aimed at the protection and care of the child; it does not establish descent. |
| Decision and procedure | A decision of the competent court is required. | Established through the assessment and contractual process of the relevant administrative authorities. |
| Rights and obligations of parents | On adoption, the rights and obligations belonging to the parents pass to the adopter. | Neither parental authority nor descent passes automatically to the foster family. |
| Succession | The adoptee becomes an heir of the adopter, and succession within the biological family also continues under TMK Art. 500. | The foster care relationship alone does not give rise to statutory succession rights. |
| Duration | As a rule permanent; the limited statutory grounds for annulment are reserved. | Continues for as long as the child's need for protection and the administrative assessment continue. |
| Legal relationship with the biological family | Certain consequences of biological descent continue; the rights and obligations belonging to the parents pass to the adopter. | Biological descent and the legal relationship based on it continue. |
Points to Bear in Mind in Adoption
The important points to bear in mind during the adoption process are as follows:
- Expert support: working with a family law attorney from the outset helps to forestall potential legal problems.
- Importance of the care and education period: the minimum one-year period of care and education required by TMK Art. 305 serves to assess the adjustment of both child and family and the best interests of the child; the statute does not describe this period as a “trial period”.
- Completeness of documents: missing documents can significantly prolong the process.
- Psychological preparation: psychological support is recommended for both the adopter and the adoptee.
- Particular care in international matters: ensuring compliance with the Hague Convention is of considerable importance in international adoption.
- Respect for the child's past: sensitivity regarding the adopted child's biological origins and history, and informing the child in a manner appropriate to their stage of development, are recommended.
Costs of Adoption Proceedings
The following costs may arise in adoption proceedings:
- Application costs: costs may arise at the administrative application stage depending on the nature of the file.
- Attorney's fees: determined in accordance with the Minimum Attorney Fee Tariff.
- Court fees and expenses: at the court stage, fees, service costs and other litigation expenses may arise depending on the nature of the file.
- Medical reports: expenses may arise in obtaining the required medical reports.
- Additional costs in international matters: additional costs may arise for translation, apostille, consular procedures and international correspondence.
Current Developments and Trends in Practice
The following matters are prominent in current adoption practice:
- Adoption waiting times: the circumstances of children in institutional care and the conditions of applications may affect the matching period; there is no fixed period for completion.
- Adoption of children with special needs: measures encouraging the adoption of children with physical or mental disabilities are being developed.
- Informing the child about their past: such information should be handled with expert support, having regard to the child's age, development, best interests and the protection of personal data.
This content is for general information purposes only and does not constitute legal advice. For your specific legal problems you are strongly advised to obtain professional support from an attorney.
Frequently Asked Questions
What is the required age difference?
At least 18 years.
For a step-child, are two years of marriage and the age of 30 both required?
No; they are alternative conditions.
Is an application to the Ministry mandatory in every case?
Yes for a child in institutional care; the procedure differs for intra-family and adult adoption.
Does the adoptee remain an heir in the biological family?
Yes, succession rights continue under TMK Art. 500.
This article was prepared by Av. Fatma Rojan MALGIR SAYĞIDAR.
