Custody Proceedings — Who Is Awarded Custody, the Criteria and Variation

We examine who is awarded custody of a child in custody proceedings, the criteria the court takes into account, the variation of custody and the right of personal contact.

What Is Custody and How Is It Governed in Turkish Law?

Custody is the legal institution comprising all the rights and duties of parents in respect of their minor children as to maintenance, education, protection and representation. Governed by Art. 335 et seq. of the Turkish Civil Code (TMK) No. 4721, custody is exercised within the framework of the principle of the best interests of the child and is a matter of public policy.

For as long as the marital union continues, custody is exercised jointly by the parents (TMK Art. 336/1). On divorce or separation the court awards custody to one of the spouses. Who has custody is determined by the best interests of the child and falls within the judge's discretion. The right of custody is strictly personal and can be neither transferred nor waived.

The scope of custody is broad. The child's maintenance, education, health, the administration of their property, their representation in legal transactions and the determination of their place of residence form its content. Under TMK Art. 339 the parents take and implement the necessary decisions concerning the child's maintenance and education having regard to the child's interests.

Who Is Awarded Custody on Divorce and What Criteria Does the Court Apply?

The sole fundamental criterion in a custody decision is the best interests of the child. There is no statutory rule giving automatic preference to the mother or the father by reason of the child's age or sex. Who has in fact been providing care may be significant, particularly for a young child; but no invariable age rule such as “0-3 years goes to the mother” appears in the legislation. The court examines together the continuity of care, the child's relationship with each parent and with siblings, safe living conditions, educational and health needs, any risk of neglect or violence, the parents' capacity to cooperate, and the child's settled arrangements. Economic superiority is not of itself a ground for custody. Fault in the divorce matters only to the extent that it is connected with the child's care and safety.

The child's views are obtained to the extent their age and maturity permit, free from pressure. The statute lays down no fixed “age of discernment” such as eight years. Although the child's views are important, they do not absolutely bind the judge; the views must be assessed together with the best interests of the child, and a departure from them must be reasoned. Preserving the relationships between siblings is also among the factors assessed; each case is considered on its own circumstances.

Economic circumstances: the parents' financial means are taken into account; but economic superiority alone does not determine custody. Economic imbalance may be remedied through alimony. In its judgment the court assesses not only the parents' present means but also the sustainability of care in the future. The risk of violence, neglect or abuse of the child; the continuity of schooling and health care; and the preservation of relationships with siblings and the other parent are important. A parent's fault in the divorce is reflected in the custody assessment only where it has a concrete effect on their capacity to care for and protect the child.

How Influential Is an Expert Opinion in a Custody Decision?

A social investigation or expert opinion may be sought from psychologists, pedagogues and social workers under Law No. 4787. A report is not an automatic condition of validity in every custody file; the nature of the dispute, the available evidence, the child's age and any need for protection are taken into account.

The expert may interview the parents and the child, examine the living environment and assess the relationship dynamics and capacity for care. The scope of the examination need not be the same in every file. The report does not bind the judge; the court must discuss it together with the other evidence, address serious objections, and give reasons if it departs from it. Without citing a decision, no absolute conclusion such as “without a report the judgment will certainly be reversed” can be drawn. To the extent the particular file requires, an expert examination may include the following:

Separate examination of the mother's and the father's living environments
Interviewing and observing the child in a manner appropriate to their age and development
Interviewing the mother and the father separately
Observing the child's interaction with the parents
Assessing the child's level of development
Assessing the parents' capacity for care and custody

When May an Action to Vary Custody Be Brought?

Under TMK Art. 183, where new facts arise such as a parent's remarriage, relocation or death, the judge takes the necessary measures of the court's own motion or upon the application of one of the parents. Variation of custody and, where necessary, more serious protective measures are assessed according to the best interests of the child within the framework of that provision and of TMK Arts. 346-351 on the protection of children.

The principal situations requiring variation of custody are as follows:

Ill-treatment of the child by the custodial parent: custody may be varied in cases of physical or psychological violence or neglect.
Serious illness of the custodial parent: custody may be varied where illness is so serious that the parent cannot exercise custody.
Remarriage of the custodial parent: remarriage is not of itself a ground for varying custody; but it may arise where the new spouse mistreats the child or the child's interests are harmed.
The child growing older and their preference changing: a child who has reached an age of discernment wishing to live with the other parent may be a ground for variation.
Obstruction of the right of personal contact: a custodial parent persistently obstructing personal contact between the child and the other parent is a ground for varying custody. In an action to vary custody, too, the best interests of the child govern. The court obtains expert reports and hears the child's views. For custody to be varied, it must be established that the existing arrangements are adversely affecting the child's interests.

What Is the Right of Personal Contact and How Is It Arranged?

Personal contact is established between the child and the parent not exercising custody under TMK Arts. 182 and 323. The schedule is determined according to the child's age, schooling, state of health, distance, holidays and safe handover conditions; there is no mandatory template such as one weekend every two weeks.

Each parent must refrain from harming the other's relationship with the child. Where personal contact is persistently obstructed in a manner harmful to the child, enforcement of the order, a fresh arrangement or, where the conditions are met, variation of custody may be sought.

Orders for the handover of a child and for personal contact are no longer carried out under the former provisions of the Enforcement and Bankruptcy Law. Following Law No. 7343, the process is carried out by the judicial support and victim services units under Art. 41/A et seq. of Child Protection Law No. 5395, by a child-friendly procedure.

The principal matters that may be expressly set out in a personal contact schedule are as follows:

The days and times of contact
Arrangements for the mid-year and summer holidays
Arrangements for religious and public holidays
The place and method of handover and return of the child

Is Joint Custody Possible in Turkish Law?

There is no general provision of the Turkish Civil Code governing joint custody after divorce in detail. Nevertheless, it is accepted within the framework of international conventions and case law that joint custody is not categorically contrary to Turkish public policy.

Joint custody is not established merely because the parties wish it. The parents' genuine capacity for cooperation and communication, their ability to take decisions together on important matters, any risk of conflict or violence, the child's relationship with both parents, the educational and residential arrangements and the best interests of the child are examined concretely. The concept is not the same as personal contact with the child or a mathematically equal division of the child's time.

The following facts in particular may be significant in assessing joint custody:

Whether communication and cooperation on matters concerning the child can be established between the parents
The quality of the child's relationship with each parent
The effect on the child of the distance between the parents' places of residence
The sustainability of the educational and daily routine
Whether joint custody serves the best interests of the child in the specific case

When Does the Removal of Custody Arise?

Under TMK Art. 348, where the other measures for the protection of the child have not produced results or it is clear in advance that they will be insufficient, the judge may order the removal of custody. Removal of custody is the most serious protective measure and is applied as a last resort.

The situations requiring the removal of custody are set out in TMK Art. 348 as follows:

The parents being unable properly to perform the duty of custody by reason of inexperience, illness, being elsewhere or similar causes
The parents not showing sufficient interest in the child or gravely neglecting their obligations towards the child. An order removing custody may be made in respect of both parents together or of each separately. Where custody is removed from both parents, a guardian is appointed for the child (TMK Art. 349). An order removing custody may be lifted if circumstances change, and custody may be restored to the parents.

Is It Mandatory to Hear the Child in Custody Proceedings?

Under Art. 12 of the UN Convention on the Rights of the Child, a child capable of forming a view must be given the opportunity to express it in judicial proceedings affecting them. The assessment is not confined to chronological age; the child's maturity, capacity for communication and the effect of the proceedings are taken into account. The statute lays down no fixed limit such as eight years.

The child's views may be obtained directly by the judge or through a suitable expert, in an environment protecting the child from pressure and conflict. The child's statement does not mean that they have “chosen” custody and does not of itself bind the judge. The court must assess the views together with the other evidence and the child's best interests, and must give concrete reasons if it reaches a different conclusion.

Frequently Asked Questions

In which court is a custody action brought?

Custody actions are brought before the family court. Where there is no family court, the civil court of first instance hears the case in the capacity of a family court.

If the mother does not work, is custody given to the father?

No; the mother's not working does not of itself require custody to be given to the father. Economic insufficiency may be remedied through alimony. The best interests of the child govern the custody decision.

How much time must pass before custody can be varied?

There is no time requirement. An action to vary custody may be brought whenever circumstances have changed and the child's interests so require.

From what age may a child express a preference as to custody?

A child capable of forming a view is given the opportunity to express it in a decision affecting them. The statute lays down no fixed hearing threshold such as eight years; the child's age, maturity and the specific circumstances are assessed together.

Is custody always given to the mother on divorce?

No. Neither parent is given automatic preference by reason of the child's age or sex. All the facts, including the continuity of actual care, are assessed on the facts according to the best interests of the child.

May the custodial parent take the child abroad?

Short-term travel and the permanent relocation of the child's residence to another country are not the same. Passport and border procedures, the personal contact order, the other parent's rights, Law No. 5718 and the provisions on international child abduction must be assessed together. No absolute statement can be made that the same procedure and permission are required for every permanent relocation.

What can be done if the right of personal contact is obstructed?

The parent whose right of personal contact is obstructed may seek enforcement of the order under Art. 41/A et seq. of Law No. 5395, a fresh arrangement of personal contact and, where the conditions are met, variation of custody.

This content is for general information purposes and does not constitute legal advice.

Official sources: Turkish Civil Code No. 4721, Family Courts Law No. 4787, Child Protection Law No. 5395, Private International Law Act No. 5718, UN Convention on the Rights of the Child