Divorce not only ends the marriage union between the spouses, but also requires important decisions to be taken regarding the future of the joint children. The most important of these decisions is “custody”. Custody is the totality of the rights and obligations granted to the mother and father in matters such as the care, education, protection and representation of the minor child (or restricted adult child). While the marriage union continues, custody is exercised jointly by the mother and father. However, in the event of divorce, the court has to decide which parent will have custody. In this decision, the only and most fundamental principle that the court observes is the “best interests of the child”.
Legal Framework: Custody and the Best Interest of the Child
Custody is regulated under Article 335 and following articles of the Turkish Civil Code (TCC). The regulation of custody in divorce is regulated under Article 182 of the TCC. The principle of the best interests of the child is recognised as a fundamental principle both in our national legislation and in international conventions to which Turkey is a party, such as the United Nations Convention on the Rights of the Child.
Turkish Civil Code – Article 182: Regulation of Custody
When deciding on divorce or separation, the court shall regulate the rights of the parents and their personal relations with the child, after hearing the parents, if possible, and after receiving the opinion of the guardian and the guardianship authority if the child is under guardianship. The interests of the child, especially in terms of health, education and morals, are taken as a basis in the regulation of the personal relationship of the spouse who is not granted custody.
Criteria taken into consideration when making a parental authority decision
In deciding to whom custody should be awarded, the judge seeks to determine what is best for the child’s physical, mental, spiritual, moral and social development, rather than the wishes of the parents or their state of fault. The main criteria evaluated in this context are as follows:
- Age of the Child: There is a jurisprudence of the Court of Cassation that the custody of young children (0-3 years old), who are especially in need of maternal care and affection, should be given to the mother unless there is a serious reason to the contrary.
- Opinion of the Child: The Court of Cassation recognises that the opinions of children who are at the age of cognition (generally 8 years old and above) should be taken into consideration and given importance. Which parent the child wants to stay with is an important factor affecting the decision.
- Status of the Parents: Factors such as the parents’ lifestyle, moral status, health status, bad habits, if any, social and economic opportunities they can provide for the child, and the time they can spare for the child are evaluated.
- Accustomed environment of the child: The child’s current social environment, school, friends and siblings are also taken into consideration. It is essential that siblings are not separated from each other.
- Expert Reports: Before making a decision, the court usually receives a report from an expert committee consisting of pedagogues, psychologists or social workers. The experts interview the child and the parents and prepare a report on which parent the child’s best interests would be served by staying with.
Changing Custody
The custody decision made during divorce is not a final and unchangeable decision. In the event of a significant change in the situation of the parent to whom custody has been granted (e.g. moving to another city, remarrying, neglecting the care of the child) or if the interests of the child require it, the other parent may request that custody be granted to him/her by filing a “suit for modification of custody”.
Joint Custody
In Turkish law, it is also possible to decide on “joint custody” in uncontested divorces if the parties request it and the judge finds it appropriate for the best interests of the child. In joint custody, important decisions regarding the child’s life (school selection, health interventions, etc.) are taken jointly by the parents even after the divorce.
Custody is the most sensitive and important issue in divorce cases. When deciding on custody, the courts focus entirely on determining the healthiest environment for the child’s physical, mental and spiritual development, rather than the parents’ conflicts. The principle of “best interests of the child” is the sole and absolute guiding principle in this process. The age of the child, the opinion of the child, the situation of the parents and expert reports are the main factors affecting the decision. Custody decisions are not final and can be reorganised through a custody modification case if the circumstances change. In this sensitive process, it is of great importance to get support from a family law lawyer in order to ensure that the child comes out with the least damage and to manage the legal process correctly.