Divorce is not merely a transaction dissolving the legal bond between the spouses; in files involving a child of the marriage it produces far broader consequences. The most sensitive of these consequences is the question of which parent the child’s custody will be left with. Under Turkish law, custody is addressed around the principle of the best interests of the child, and the court determines the party able to ensure that the child is raised in a healthy environment.
In reaching its decision, the court weighs together a large number of factors, such as the child’s age, the parents’ capacity for care and their financial position, and the child’s psychological and emotional development. But by reference to which concrete criteria do the courts carry out this assessment? May joint custody be awarded? Can a custody decision once given be varied subsequently?
In this briefing note we address, in practical terms, the legal framework of custody, the criteria taken into account by the judge, the settled practice by age group, and the circumstances in which custody is left with the father.
Custody and Its Legal Nature
Custody is a legal authority denoting the whole of the rights and obligations conferred upon the mother and father in respect of the care, education, protection and representation of a child who has not attained majority. This authority rests with the mother and father until the child attains majority; the parents are at the same time obliged to meet the child’s every need.
Turkish Civil Code No. 4721 Article 335 – The Right of Custody
“A child who has not attained majority is under the custody of his or her mother and father. Custody may not be removed from the mother and father in the absence of a legal ground.….”
How Is Custody Determined in a Divorce Action?
In divorce proceedings, custody is assigned by the court within the framework of Article 336 of the Turkish Civil Code No. 4721 and having regard to the best interests of the child. Where the joint life comes to an end or separation is ordered between the spouses, the judge may leave custody with one of the spouses.
The Factors the Court Has Regard to in a Custody Decision
In determining to which party custody will be left, the judge assesses the following criteria:
- The physical and mental health of the mother and father
- The interest shown by the parents in the child and the nature of the emotional bond between them
- Whether care and educational opportunities compatible with the child’s age and level of development can be offered
- The parties’ living conditions and whether the child’s existing social environment can be preserved
- The existence of findings that one of the parents has harmed or neglected the child
- The capacity to contribute to the child’s education and development
- For children who have completed the age of 12, the child’s own statement
The principal criteria on which the judge relies in determining the best interests of the child are examined below under separate headings.
The Effect of the Child’s Age on the Custody Decision
The child’s age is foremost among the determinative factors in the assignment of custody. Since developmental and emotional needs differ according to age, the judge assesses which parent the child stands in greater need of. Although children in the younger age group are observed to tend towards remaining with their mother on account of their need for care and affection, the ultimate criterion in every file is the best interests of the child.
- Age group 0 – 3: It is accepted in Turkish legal practice that children in this age range are absolutely dependent on maternal care. Under the case law of the Court of Cassation, custody is for the most part left with the mother without regard to her employment status, financial means or way of life. The mother loses this right only in exceptional circumstances, such as her not being in a position to care for the child or leading a life that would endanger the child’s health.
- Age group 3 – 6: The child is accepted still to need maternal care and affection; this acceptance is not, however, in the nature of an absolute rule. Where the mother is not in a position to assume the responsibility of care, where her health has deteriorated or where she adopts a way of life that would harm the child, the court may, having regard to the best interests of the child, leave custody with the father. That said, the award of custody to the father in this age range remains exceptional.
- Age group 6 – 12: In this range, which corresponds to the school years, the assessment is not confined to emotional needs alone; the child’s education and future also enter the balance. The court compares the material and moral opportunities the parties are able to offer the child. Before the decision, the child is generally heard in the presence of a pedagogue and his or her views are taken. The child’s statement does not bind the judge; the final choice is made by determining the parent most suited to the child’s interests.
- Age 12 and above: Children in this age group are accepted to be able to express themselves adequately and to have reached a certain maturity. The courts therefore have regard to the child’s wishes and, as a rule, allow the child to choose the parent with whom he or she wishes to remain.
In this assessment by age group, the judge decides in every case by giving priority to the child’s health, psychological development and general welfare.
Continuity of the Living Conditions Offered to the Child
In the custody decision, the courts attach weight to the principle that the living environment to which the child is accustomed should be preserved. A sudden and radical change in the environment in which the child has grown up, attends school and has formed his or her social relationships may produce adverse consequences for his or her psychological development. For this reason, the extent to which the existing pattern of life can be maintained is also taken into account.
With a view to ensuring that the child’s education, social environment and daily routine are not interrupted, the judge may leave custody with the party best able to maintain that environment. The following factors come to the fore in the assessment:
- Whether the environment in which the child lives meets safety and health criteria,
- The strength of the bond the child has formed with the place where he or she currently lives and with its surroundings,
- The ability to continue at the same school so that the child’s education is not disrupted,
- Friendships, daily habits and the social environment in which the child finds himself or herself.
Regard for the Bond Between Siblings
In files involving more than one child, keeping the siblings together is accepted as a criterion of importance for the best interests of the child. While coping with the emotional upheaval caused by the divorce, children benefit markedly from the solidarity that being together with their siblings provides. The courts therefore take care not to separate siblings from one another.
In the case law of the Court of Cassation, too, the prevailing tendency is that siblings should not be separated and that custody should be concentrated in the same parent. Where, on the other hand, the children’s age difference, needs and levels of development diverge from one another, it may not always be possible for the siblings to remain together. In such cases the judge decides by carrying out a separate best-interests assessment in respect of each child.
Hearing the Child’s Views
Obtaining the child’s views is an important stage in the process of determining custody. The United Nations Convention on the Rights of the Child and the European Convention on the Exercise of Children’s Rights, to which Türkiye is a party, recognise the right of children with sufficient understanding to express their views in proceedings concerning them. Accordingly, the child’s statement has become one of the factors taken into account in custody files in Turkish judicial practice.
Nevertheless, the child’s view is not on its own determinative; the judge gives judgment essentially by having regard to the best interests of the child. In the course of the proceedings it is possible for the child to be influenced by his or her parents, to be directed by them or to come under pressure. In examining the child’s statement, the courts therefore assess the weight to be given to that statement by taking into account his or her level of understanding and emotional development. As the child grows older and his or her capacity of understanding develops, the effect of the statement may also increase.
The Effect of the Parents’ Requests on the Decision
In giving its custody decision the court has regard to the parties’ requests; what is determinative, however, is the best interests of the child. Although whether or not the parents seek custody is of importance for the decision, the judge carries out an assessment based on the child’s interests within the framework of a broad discretion.
- Agreement of the parties on custody: Custody is a matter on which the parties may reach agreement, whether in uncontested or in contested divorce files. The spouses may decide between themselves with whom custody is to remain and record this in the uncontested divorce protocol. That agreement is not, however, binding on the judge.
- Both parties seeking custody: It is a frequently encountered picture for both spouses to request custody in the course of the divorce. In such a situation the judge, while having regard to the requests, is obliged to give the most appropriate decision in terms of the child’s physical, emotional and social development.
- Neither party seeking custody: Imposing this obligation by force on a parent who does not wish to assume custody is, as a rule, not preferred, since it may produce adverse consequences for the child’s physical and emotional development. If both spouses avoid assuming custody, the judge may decide that the child be taken into State care within the framework of the Social Services Act No. 2828. In that event the child may be placed in a care institution under the supervision of the Ministry of Family and Social Services or with a suitable foster family.
May Joint Custody Be Awarded in a Divorce?
Joint custody means that the divorced spouses assume responsibility equally for the child’s care, education, health and other fundamental matters. Under this model the child does not simply remain with a single parent; both parties participate actively in the decision-making processes.
There is no express provision in the Turkish legal system on joint custody following divorce. By contrast, in the light of the international conventions to which Türkiye is a party and the settled decisions of the Court of Cassation, it is accepted that joint custody may be applied in certain conditions.
In uncontested divorce files in particular, where the spouses request joint custody with mutually consistent intentions, the court may accept that request following an assessment of best interests. In contested divorce files, on the other hand, joint custody is as a rule not awarded and custody is left with one of the spouses.
Circumstances in Which Custody May Be Left with the Father
Although it is accepted both in the doctrine and in the decisions of the Court of Cassation that young children, and in particular those in the 0-3 age range, stand in need of maternal care, there are also circumstances in which custody is left with the father. Within the framework of the best interests of the child, the court examines whether custody in the mother gives rise to any disadvantage for the child’s development. If it is concluded that the mother is unable to provide suitable care for the child, custody may be left with the father.
- Violence against the child: Where the mother inflicts violence of a physical or psychological nature on the child, custody may pass to the father.
- Neglect of the child’s care by the mother: Where there is serious neglect in meeting basic needs such as nutrition, health and shelter, custody may be awarded to the father.
- Addiction and a gambling habit: Where the mother has an alcohol or narcotic substance addiction or a gambling habit, custody may be left with the father so that the child may be raised in a healthy environment.
- The mother’s state of health being an obstacle to custody: If the mother suffers from a physical or mental illness of such severity that she is unable to care for the child, or if her illness endangers the child’s safety, custody may be awarded to the father.
- Leading a life that gives rise to danger for the child: Where the mother is within an environment inclined to crime, the court may leave custody with the father.
- The mother abandoning the child or taking no interest in the child: If the mother has left the child and takes no interest in him or her, if she refuses the responsibility of care during or after the divorce, or if she causes the child to be cared for by other persons for an extended period, custody may be awarded to the father.
- A new marriage reflecting adversely on the child’s development: If the mother’s new marriage adversely affects the child’s development (for example, where the stepfather mistreats the child), if the child is neglected because of that marriage, or if living conditions deteriorate, the court may leave custody with the father.
- The father being able to offer the child a more favourable future: If it is established that the father is able to provide better opportunities than the mother in terms of education, health and general standard of living and that this will have a positive effect on the child’s emotional development, the court may, having regard to the best interests of the child, leave custody with the father.
Custody is determined in every file in a manner that protects the best interests of the child. Although custody is as a rule left with the mother in the case of children in the younger age group, where the mother harms the child, remains indifferent or is unable to discharge the obligation of care, the court may award custody to the father. Where it is shown that the father offers a more favourable environment in terms of the child’s physical, mental and emotional development, the right of custody may change hands.
Independent Legal Assessment
What determines the outcome in custody disputes is not the accusations the parties level at one another, but whether the best interests of the child can be established by concrete evidence. A frequently observed error in practice is that the file focuses on the marital conflict between the spouses and that no material is submitted concerning the child’s daily pattern of life. Yet it is the pedagogue’s report, the social investigation report and the school records that are the real factors shaping the judge’s discretion.
In building a strategy in a particular file, it is appropriate to prioritise the following headings:
- Assessing the child’s age group at the outset in terms of the settled tendency of the case law
- Submitting to the file the school, health and residence records demonstrating the continuity of the existing pattern of life
- Where there is more than one child, expressly advancing the request that the sibling bond be preserved
- Exercising in time the right to respond to the social investigation and pedagogue reports
- Raising the request for joint custody only after realistically gauging the parties’ level of communication
- Framing the requests for custody, personal contact and child support as an integrated whole
Independent Legal provides advisory services and litigation representation in disputes concerning custody, the establishment of personal contact and applications for the variation of custody in divorce proceedings.