Custody in Turkish Law
With the increase in international marriages, child custody in divorce cases of foreigners in Turkey is gaining more importance. In this process, both Turkish law and international regulations need to be considered. Especially the child’s best interest, cultural identity, and protection of relationships with both parents are critically important. In this article, we will discuss all aspects of custody in cases where foreigners divorce in Turkey.
Definition and Scope of Custody in Turkish Law
Content of Custody Rights
Custody rights refer to the entirety of rights and obligations that parents have over their children. This right covers a wide area including the child’s care, education, health, representation, and management of assets. In Turkish law, custody is accepted not only as a right but also as a duty that must be exercised for the benefit of the child.
Place of Custody in Turkish Civil Code
The institution of custody, regulated between Articles 335 and 351 of the Turkish Civil Code, is exercised jointly by parents during marriage. In case of divorce, custody is generally given to one of the spouses. The law determines the child’s best interest as the fundamental criterion in custody arrangements.
The Turkish Civil Code adopts the same basic principles in custody arrangements even in divorce cases involving foreign elements. However, the applicable law is determined by considering the provisions of Law No. 5718 on International Private Law and Procedural Law (MÖHUK). At this point, especially the law of the country where the child has habitual residence becomes important.
In custody arrangements, Turkish courts also consider international conventions. Particularly international regulations such as the Convention on the Rights of the Child and the Hague Convention on Child Abduction serve as guidance in custody cases involving foreign elements.
Characteristics of Custody Decisions in Foreigners’ Divorce Cases
Jurisdiction of Turkish Courts
The jurisdiction of Turkish courts in foreigners’ divorce cases is determined within the framework of MÖHUK Article 41. Turkish courts have jurisdiction to decide on custody matters if one of the parties has residence in Turkey or is a Turkish citizen. Additionally, the child’s habitual residence being in Turkey is one of the important bases for Turkish courts to exercise jurisdiction.
Applicable Legal Rules
The law applicable to custody matters is primarily the law of the child’s habitual residence according to MÖHUK Article 14. However, the law of a country more closely connected with the child may also be considered to the extent required by the child’s interest. Turkish courts rule in accordance with these rules provided that the applicable foreign law rules are not clearly contrary to Turkish public order.
Impact of International Conventions
Hague Convention on Child Abduction
The 1980 Hague Convention on Child Abduction provides an important protection mechanism in the exercise of custody rights. This convention regulates the return of the child to the country of habitual residence in cases where a parent takes or retains the child in another country without permission. Turkish courts take preventive measures against illegal relocation of children while making custody decisions, considering the provisions of this convention.
Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child is a fundamental reference point in custody decisions. According to Article 3 of the Convention, the best interests of the child must be considered in all decisions concerning children. In custody cases involving foreign elements, Turkish courts:
- Consider the child’s views according to their age and maturity level
- Ensure protection of the child’s cultural identity
- Protect the right to maintain regular relations with both parents
- Ensure continuous education and health rights
Criteria Considered in Custody Decisions
Principle of Child’s Best Interest
Turkish courts primarily consider the child’s best interest in custody cases involving foreign elements. This principle is one of the fundamental principles of international law and is explicitly adopted in the Turkish Civil Code. The most important factor in evaluating the child’s best interest is the continuity of emotional and physical development. Maintaining the existing social environment and ensuring uninterrupted education are also among the basic criteria. Additionally, courts consider the possibility of the child maintaining healthy relationships with both parents.
Child’s Age and Development Status
The child’s age and development status carry special importance when making custody decisions. Especially young children’s dependency on their mother is a factor frequently considered by courts. Preferences of adolescent children gain particular importance. Additionally, the child’s psychological and physical health status and whether there are special education needs are examined in detail.
Parents’ Living Conditions
The court evaluates parents’ living conditions in detail when making custody decisions. The parents’ economic situation and working conditions play an important role in this evaluation. Social opportunities in their country and city also affect the decision. The presence of family support and social environment is considered for the child’s healthy growth. The parent’s capacity to undertake child care is also among the basic factors evaluated by the court.
Cultural and Linguistic Factors
Cultural and linguistic factors carry special importance in custody of children born from international marriages. Courts consider maintaining the child’s ties with both cultures. The opportunity to develop their native language(s) is an important evaluation criterion in custody decisions. Religious and cultural education opportunities are also considered. Balanced preservation of different cultural identities is among important aspects considered by the court. The parent receiving custody is expected to respect the other parent’s culture and language and support the child’s bicultural identity.
Special Circumstances for Foreign Parents
Impact of Child’s Citizenship Status
In divorce cases of foreign parents, the child’s citizenship status is one of the important factors affecting custody decisions. In custody of children with dual citizenship, legal systems of both countries are considered. For children who are Turkish citizens, Turkish courts place special importance on maintaining the child’s ties with Turkey.
For children who are citizens of only foreign countries, consular protection and diplomatic rights of their country of citizenship are observed.
Travel and Residence Restrictions
Courts evaluate requests of foreign parents with custody to settle abroad with the child with special sensitivity. The sustainability of the child’s relationship with the other parent is the main criterion in this evaluation. The court may set special conditions or impose restrictions for traveling abroad when deemed necessary. Especially in cases where there is a risk of child abduction, temporary or permanent travel bans may be imposed by the court.
Passport and Travel Documents
The authority of the foreign parent with custody to arrange the child’s passport and travel documents is subject to special regulations. Consent of both parents may be required for renewing the child’s passport or issuing a new one. The court may take special measures regarding the safekeeping of passport and travel documents based on risk assessment. Procedures to be followed in consular transactions for documents to be used in international travel are specifically stated in the custody decision.
Some important aspects in this process are:
- Sworn translation of custody decision must be submitted in passport applications
- Obligation to inform the other parent before travel plans
- How to obtain travel permission in emergencies
- Procedures to be applied for holiday and visit-purpose travels
Modification and Termination of Custody
Grounds for Modification
Serious and permanent reasons are required for modifying or terminating custody decisions given to foreign parents. Courts particularly consider the following situations:
The custodial parent’s inability to meet or neglect of the child’s basic needs is an important reason for modification. The parent’s permanent return to another country and making it difficult for the child to maintain a relationship with the other parent can also lead to custody modification. The court can act ex officio in cases where there are conditions negatively affecting the child’s physical, mental, or moral development. Additionally, behaviors of the custodial parent that would violate the Hague Convention are among the reasons for modification.
Application Procedure
The procedure for applying for custody modification or termination is subject to a special process. In modification cases filed in Turkish courts, the foreign element is particularly important in these aspects:
The right to file a lawsuit primarily belongs to the other parent. The modification request must be supported by concrete evidence. Power of attorney and other documents of the party residing in a foreign country must be apostilled or consulate-certified. The court can collect evidence using international judicial assistance mechanisms when necessary. In cases where the child needs to be heard, the child’s opinion is taken with interpreter support.
Recognition of Foreign Country Decisions
Recognition and enforcement procedure is required for custody modification decisions given by foreign courts to be implemented in Turkey:
The recognition and enforcement lawsuit is filed in the competent civil court of first instance. It must be established that the court of the country where the decision was made had jurisdiction. The decision must be final and not clearly contrary to Turkish public order. The custody arrangement specified in the decision is evaluated for compliance with the child’s best interest. Particularly, respect for the parties’ right of defense is important.
Frequently Asked Questions
Recognition of Foreign Custody Decisions in Turkey
For a custody decision obtained from a foreign country court to be valid in Turkey, the recognition and enforcement procedure must be followed. We can answer frequently asked questions about this process as follows:
The recognition lawsuit can be filed without any time limitation from the date the decision becomes final. The lawsuit is filed in the court of the parties’ residence in Turkey, or if not available, in the court of their place of stay. Basic documents required for application are; certified copy of the decision, notarized translation, and finalization annotation. The court examines the foreign decision formally and evaluates its compliance with Turkish public order.
Custody in Case of Dual Citizenship
Custody in case of dual citizenship requires special sensitivity. We can provide these answers to the most frequently encountered questions:
Turkish courts always have jurisdiction for children who also have Turkish citizenship. Regulations prescribed by legal systems of both countries are evaluated together. Which country’s law will be applied in the custody decision is determined considering the child’s habitual residence. Dual citizenship does not affect the child’s right to travel to and settle in both countries. However, the custodial parent must exercise these rights in a way that does not violate the other parent’s rights.
Temporary Custody Decisions
Temporary custody decisions constitute an important protection mechanism during the divorce process. We can answer basic questions about this as follows:
A temporary custody decision is a measure that needs to be taken urgently for the care and protection of the child during the trial process. The court considers minimizing the impact on the child’s current arrangement when making this decision. The duration of temporary custody is until the divorce case becomes final. If there is a possibility of the foreign parent returning to their country, the court may restrict the child’s travel abroad. Temporary custody decisions can be appealed and modified if conditions change.
Related Topics
Relationship Between Custody and Alimony
Custody and alimony decisions are complementary arrangements for the child’s healthy development. The ability of the foreign parent with custody to cover the child’s care and education expenses is important for the sustainability of custody.
Although custody decision and alimony obligation are directly related, they are regulated independently. The non-custodial parent’s alimony obligation continues. Especially when foreign parents live in different countries, international agreements and mechanisms come into play for collecting alimony.
Effect of Custody on Right to Personal Relationship
It is a legal obligation for the foreign parent with custody to respect the other parent’s right to establish a personal relationship with the child. Arrangement of personal relationship between parents living in different countries carries special importance.
The custodial parent is obligated to ensure the child maintains regular communication with the other parent.
In this context, online meetings, holiday visits, and other communication methods are planned in detail. Special arrangements required for international travel and coverage of expenses are also evaluated within this scope.
Each of these topics constitutes an important part of custody arrangements in the divorce process of foreigners. The detailed information in our articles will help better understand the process and take the right steps.
Conclusion and Recommendations
Custody arrangements in the divorce process of foreigners in Turkey is a multidimensional and sensitive issue. In this process involving international elements, both Turkish law and international regulations must be considered.
When deciding on custody, the child’s best interest is always the first priority. Courts consider intercultural differences, language factors, and the necessity of maintaining the child’s bonds with both parents. In this context, we can make the following recommendations to parents:
First, it is important to get support from an expert lawyer before starting the legal process. Especially in custody cases involving foreign elements, guidance from a legal expert with international law knowledge ensures healthy progress of the process.
The parent with custody should support the other parent’s relationship with the child. Maintaining the child’s bonds with both cultures is critically important for healthy development. Therefore, effective communication and cooperation should be established between parents.
Advance planning should be made for possible overseas travel and residence changes during the implementation of the custody decision. Preparing necessary documents and informing the other party prevents potential future problems.
Conclusion:
Proper management of the legal process is essential for achieving a successful outcome in foreign custody cases in Turkey. While considering the child’s best interest, intercultural sensitivities must also be taken into account. Parents acting in cooperation and receiving professional legal support will ensure healthy progress of the process. It is important to consider international regulations in this process.
