Following a divorce or a separation, the question of which parent the child will live with produces a decisive outcome for the child’s physical, emotional and psychological development. Living conditions are not fixed, however; new circumstances arising over time may make it necessary to revisit a custody order that has already been made. The Turkish Civil Code likewise does not treat a custody decision as an immutable ruling and permits the variation of custody where certain conditions are met.
An action for the variation of custody is a route of judicial review that has regard to the best interests of the child. A change in the way of life of the parent exercising custody, a failure to provide the child with the necessary care and attention, or new developments adversely affecting the child’s development may make a reassessment of the custody arrangement necessary. Within this framework, the parent to whom custody was not awarded may apply to the Family Court on the ground that the child’s interests are being harmed or that custody is not being exercised as it should be.
In this note we examine the statutory basis for a variation of custody, the conduct of the action, the criteria observed by the court, and the effect of the decision on financial obligations.
What Is an Action for the Variation of Custody?
Custody is a legal status expressing the rights and obligations conferred on the mother and father as regards the care, education, health, protection and general welfare of a child who has not attained majority. Under the Turkish Civil Code No. 4721, custody is determined on the basis of the best interests of the child and is awarded to one of the parents. Where circumstances change over time, that determination may need to be varied.
The Concept of Custody and Its Statutory Basis
Custody is regulated as a right and a responsibility belonging to the mother and father under Article 335 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721 Art. 335
“A child who has not attained majority is under the custody of his or her mother and father. For as long as the marriage subsists, the mother and father exercise custody jointly. Where the marriage comes to an end, the judge may award custody to one of the spouses.”
As is apparent from the provision, custody is exercised jointly by the mother and father while the marriage subsists; where the union comes to an end, the judge may award custody to a single parent, having regard to the interests of the child. The question of the parent to whom custody is to be awarded upon divorce is addressed separately under the heading of who is awarded custody of the child in a divorce.
Provisions Permitting a Variation
A variation of custody means the removal of that right from the parent to whom custody was initially awarded and its transfer to the other. The two principal provisions permitting this are Articles 183 and 349:
Turkish Civil Code No. 4721 Art. 183
“Where the mother and father fail to discharge their obligation of care and supervision as they should, or where the interests of the child so require, the judge shall take the necessary measures of his or her own motion or upon request.”
Turkish Civil Code No. 4721 Art. 349
“Custody may be removed from the mother or father and terminated by the appointment of a guardian, where no other measure is sufficient for the protection of the child.”
Read together, these provisions show that the custody arrangement may be varied where the parent exercising custody acts contrary to the interests of the child, creates a harmful environment for the child, or neglects the duties that custody requires.
Conditions for a Request to Vary Custody
This action seeks, with regard to the interests of the child, the removal of custody from the parent currently exercising that right and its award to the other. For such a variation to be ordered, certain conditions must have materialised. Articles 183, 335 and 349 of the Turkish Civil Code No. 4721 set out the basic legal framework in this area.
Neglect of the Child or Exposure to Ill-Treatment (Turkish Civil Code No. 4721 Arts. 183 and 346)
Neglect of the child by the parent exercising custody, the infliction of physical or psychological violence, ill-treatment, or the raising of the child in an unhealthy environment are among the strongest grounds for a variation of custody. Allegations of this kind may be proved by witness statements, social investigation reports and medical reports.
Harm to the Best Interests of the Child (Turkish Civil Code No. 4721 Arts. 339 and 346)
The protection of the child’s interests lies at the heart of the action. If the parent holding custody is unable adequately to provide for the child’s care, education and development, a variation of custody may arise. Reports by social workers and psychologists guide the court in this assessment.
Failure to Meet Educational and Health Needs (Turkish Civil Code No. 4721 Arts. 339 and 346)
A failure by the parent holding custody adequately to meet the child’s educational and health needs is also a significant ground for a variation. Situations such as a disruption of the child’s schooling or a neglect of medical check-ups may require the transfer of custody to the other parent.
Failure of the Parent to Discharge Their Obligations (Turkish Civil Code No. 4721 Arts. 346 and 349)
A failure by the parent exercising custody to show the requisite care in looking after the child, or a disregard of the child’s physical and emotional needs, may likewise lead to a variation of custody. Leaving the child alone for long periods, or harm caused to the child by bad habits such as alcohol or substance dependency, may be given as examples.
Remarriage of the Custodial Parent (Turkish Civil Code No. 4721 Art. 348)
The remarriage of the parent exercising custody is not in itself a ground requiring a variation of custody. Where the new marriage adversely affects the care or the psychological development of the child, however — for instance where the step-parent ill-treats the child — a request for a variation may arise.
Relocation of the Custodial Parent (Turkish Civil Code No. 4721 Art. 347)
Where the parent exercising custody settles in another city or country in a manner that will adversely affect the child’s education and social environment, a variation of custody may be sought. The court decides by assessing the change that the relocation will bring about in the child’s life.
Death of the Custodial Parent (Turkish Civil Code No. 4721 Art. 349)
Where the parent holding custody dies, custody does not pass to the other parent automatically. The judge determines the most appropriate solution having regard to the best interests of the child. If the child has no healthy relationship with the other parent, or if living with that parent is considered inadvisable, the appointment of a guardian for the child may be ordered.
Hearing the Views of the Child (Turkish Civil Code No. 4721 Arts. 12 and 346)
Under the Turkish Civil Code No. 4721, children who have completed the age of 8 have the right to express their views on custody before the court. In assessing the child’s statement, the court also has separate regard to whether that statement was given under pressure.
Procedure
The simplified procedure applies in an action for the variation of custody. Regulated in Article 316 of the Code of Civil Procedure No. 6100, this procedure is intended to bring the dispute to a swift and effective conclusion. Accordingly, the exchange of pleadings and the hearing stage are completed in a shorter time than in other types of proceedings.
A further point to note is that decisions given by the Regional Court of Appeal in these actions are not open to appeal on points of law. In its decision numbered 2019/3013 E. and 2019/4091 K., the 2nd Civil Chamber of the Court of Cassation held that, as a consequence of a request for the variation of custody being classified as a matter of non-contentious jurisdiction, decisions given by the Regional Court of Appeal in such matters are final, that no appeal on points of law lies against those decisions, and that a petition of appeal on that ground must be rejected.
Courts with Subject-Matter and Territorial Jurisdiction
The court before which, and the place in which, the action is to be brought are determined within the framework of the provisions of the Turkish Civil Code No. 4721 and the Code of Civil Procedure No. 6100.
The court with subject-matter jurisdiction is the Family Court; in places where there is no Family Court, the Civil Court of First Instance resolves the dispute in that capacity. As regards territorial jurisdiction, no mandatory rule is laid down. Under Article 384 of the Code of Civil Procedure No. 6100, requests for the variation of custody are dealt with as matters of non-contentious jurisdiction, and the Court of Cassation likewise accepts in its settled case law that the action may be brought before the courts of different places.
Since the statute contains no special provision on territorial jurisdiction, the action may also be heard before the court of the place of residence of the parent making the request.
The Approach of the Court of Cassation to Territorial Jurisdiction
In its decision numbered 2019/2220 E. and 2019/4091 K., the 20th Civil Chamber of the Court of Cassation stated that there is no mandatory or special rule of territorial jurisdiction in an action for the variation of custody; that, by contrast, where the respondent raises an objection to jurisdiction as a preliminary objection, that point will be taken into account; and that, where jurisdiction is not mandatory, the judge may not consider the matter of his or her own motion.
Is There a Time Limit for the Action?
The Turkish Civil Code No. 4721 lays down no time limit as regards the variation of custody. The action may be brought at any time the best interests of the child require. In examining such requests, however, the courts apply the criteria of a “material change” and of “permanence”. Accordingly, since the statute contains no time restriction, the action is not conditional on the expiry of any particular period; whenever a situation arises that harms the interests of the child, custody may be revisited at any time. For a variation to be ordered, however, the change that has arisen must be material and must be permanent rather than temporary in nature.
Interim Measures During the Proceedings
While the action is pending, the court may grant an interim measure in order to protect the best interests of the child. Such measures come into play where there is a serious risk to the child’s safety, health, education or psychological development. Within the framework of the Turkish Civil Code No. 4721 and the Code of Civil Procedure No. 6100, the judge may grant a measure upon request or of his or her own motion where he or she considers it necessary.
If the interests of the child so require, it is also possible for a temporary custody arrangement to be made while the proceedings continue. In this context, where there is an environment that is dangerous for the child, such as violence, neglect or ill-treatment, the judge may order a temporary variation of custody. That decision remains in force until judgment is given on the merits and is, as a rule, granted by the Family Court in line with social investigation reports and expert opinions.
Example: Where the father of a child in the mother’s custody establishes by evidence that the mother has inflicted violence on the child or has not shown sufficient interest in the child, the judge may order that the child remain temporarily with the father until the proceedings are concluded.
Effect on Child Support and Other Financial Obligations
A variation of custody may also bring about changes in the financial obligations that directly concern the child’s care, education and general welfare. Under the Turkish Civil Code No. 4721, where custody changes hands, the financial responsibilities relating to the child — child support in particular — are revisited.
Change in the Child Support Obligation
Child support is the maintenance paid by the parent to whom custody was not awarded in order to contribute to the child’s care and education costs. Where custody changes hands, the party liable to pay maintenance may also change; the parent who newly assumes custody may claim child support from the other party. The amount of maintenance may be redetermined having regard to the child’s age, educational situation and needs.
📌 Example: If the father is paying maintenance while custody lies with the mother, the maintenance obligation may fall to the mother once custody passes to the father.
Redetermination of the Amount of Maintenance
Following a variation of custody, the amount of maintenance may increase or decrease. The parties may apply to the court and request that the amount be redetermined.
📌 Example: Where the child moves to the parent who is in the stronger economic position, the court may reduce the maintenance obligation or remove it altogether.
Educational and Health Expenses
Although a change in custody affects the maintenance obligation, certain expenses may continue even where the custodial parent changes. Comprehensive educational and health costs such as private school fees or health insurance are of this nature.
The court may decide the extent to which such costs are to be shared by assessing the economic means of the parties together with the needs of the child.
Independent Legal Assessment
In practice, requests for a variation of custody are most often founded on general complaints directed by the parties at one another; what the court looks for, however, is a material and permanent change that has arisen since the earlier order. Temporary tensions, difficulties over personal contact or communication problems between the parents do not, on their own, result in custody changing hands. The petition must therefore be constructed so as to set out, by date and by event, the concrete deterioration in the child’s life.
The determining element of the process is the social investigation report. Going into the expert interviews unprepared, the child’s statement giving the impression of having been coached, or the allegations not being supported by documents may result in the rejection even of a request that is well founded on the merits.
In a concrete file, the following headings should be assessed as a priority:
- Establishing chronologically that the change is material and permanent in nature
- Raising a request for temporary custody at the commencement of the action where the child’s safety is at risk
- Compiling school, health and social environment records as evidence from the outset
- Conveying, in due form, a request that a child who has completed the age of eight be heard
- Raising the claim for child support together with the custody request
- Submitting the evidence in full at first instance, bearing in mind that the decision of the Regional Court of Appeal is final
Independent Legal provides advisory and litigation services throughout the entire process, from preparation of the action to enforcement of the decision, in disputes concerning custody, personal contact and maintenance.