Settled practice in Turkish law has developed in the direction of granting custody to only one of the parents following a divorce. In recent years, however, court decisions have begun to be seen holding that, having regard to the best interests of the child, the right of custody may be exercised jointly by the mother and the father. Joint custody denotes the discharge in common by divorced parents of all the rights, powers and obligations arising from custody. Under this model the mother and father continue in their parental roles by taking decisions concerning the child’s care and education together.
Below we examine the legal bases of joint custody, the conditions in which it may be applied, the rights and responsibilities of the parents, and the effects of the model on the child’s development. How the decision is taken, how the process operates and the approach of the courts to the matter also fall within the scope of this examination.
The Concept of Custody
Custody is a right, and at the same time a responsibility, conferred on the mother and father for the purposes of the care, education and protection of children who have not attained majority. Under Article 335 of the Turkish Civil Code No. 4721, children are under the custody of their mother and father for as long as the marital union subsists. Within the scope of this right, the parents have the power to take decisions concerning the child’s development, education, representation and protection.
Legal Basis of the Right of Custody
Under Article 336 of the Turkish Civil Code No. 4721, custody is exercised jointly by the mother and father for as long as the marriage continues. Where divorce proceedings arise and the spouses are unable to agree on custody, the court, having regard to the best interests of the child, grants custody to the mother or to the father.
The Manner in Which the Right of Custody Is Exercised
For as long as the marriage subsists, the right of custody is exercised jointly by the mother and father (Turkish Civil Code No. 4721 Art. 336). In the event of divorce, custody is as a rule granted to one of the parents. Where joint custody is in issue, the mother and father take decisions concerning the child’s care and education in common.
Where the right of custody is exercised contrary to the best interests of the child, the court may restrict that right or indeed remove it altogether. For this reason parents must exercise custody in a manner compatible with the child’s physical and psychological development.
Types of Custody After Divorce
Although divorce brings the marital union to an end, it does not sever the parents’ bond with their children entirely. In divorce proceedings the court assesses to which parent custody is to be granted, or whether joint exercise is possible. In Turkish law, custody after divorce may be regulated in two forms:
- Joint custody: This is the sharing in common by divorced parents of custody of the child. Although the traditional tendency in the Turkish legal system is towards sole custody, in recent years the courts have also begun to award joint custody. In deciding whether custody is to be granted to a single parent or exercised jointly, the court takes the best interests of the child as its basis in every case.
- Sole custody: This is the situation in which custody is granted to only one parent following the divorce. In making this determination the court assesses together the child’s age, the economic and social circumstances of the parents, the child’s educational and health needs and their best interests. Although it is generally accepted that young children have a greater need for maternal care, each dispute is dealt with within its own circumstances.
For further detail on the subject, the note entitled To Whom Is Custody of the Child Granted in a Divorce? may be consulted.
What Is Joint Custody?
Joint custody is the joint exercise by the mother and father of all the powers, rights and obligations falling within the scope of the right of custody. Under this arrangement divorced parents take decisions concerning the child’s care, education, health and other fundamental matters together, and assume the responsibilities equally.
The Turkish Civil Code No. 4721 as in force provides that custody is as a rule to be granted to one of the parents following a divorce. Nevertheless, it is seen in practice that the courts award joint custody where certain conditions come together.
Joint Custody in Turkish Law
Joint custody has not been adopted as the rule in Turkish law. Under Article 336 of the Turkish Civil Code No. 4721, custody is exercised jointly by the mother and father for as long as the marriage subsists; in the event of divorce or separation, however, custody is granted to one of the spouses. The model taken as the basis in this framework is the granting of custody to a single parent, with the other parent able to maintain personal relations with the child only on the days determined by the court.
Legal and social conditions that have changed over time have led to the concept of joint custody being reassessed by the courts and, in certain cases, becoming applicable. Below we examine the development of joint custody in Turkish law, the relevant court decisions and the effect of international instruments on that development.
The Legal Foundations of Joint Custody
At the centre of the debate lies the second paragraph of Article 336 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721 Art. 336(2)
“Where common life has been brought to an end or a state of separation has arisen, the judge may grant custody to one of the spouses.”
Although the Code speaks of custody being granted to one of the spouses, this provision contains no express rule prohibiting joint custody. Indeed, it is seen in practice that the courts award joint custody where certain conditions are met.
In deciding to that effect, the courts take the best interests of the child as their basis and assess the quality of communication between the parents. It is emphasised in particular that in contested divorces joint custody may not be applicable, on the ground that the disputes between the parties may harm the child’s psychological condition.
The First Joint Custody Decisions Given in Türkiye
Joint custody was first given effect in Türkiye by the decision of the İzmir 4th Family Court dated 27.05.2009, Case No. 448, Decision No. 470. In that file the process unfolded as follows:
- The expert appointed by the court drew up a report to the effect that it was in the child’s best interests to be in effective communication with both parents.
- The parties agreed that custody of the child of the marriage should be exercised jointly.
- Taking as its basis the parents’ conciliatory attitude and the findings in the expert report, the court awarded joint custody.
In the same period, by contrast, in applications for the recognition and enforcement of joint custody decisions given by foreign courts, the Court of Cassation regarded joint custody as contrary to Turkish public policy and refused to accept those decisions.
The Approach of the Court of Cassation and the Change in Case Law
The turning point as regards the recognition and applicability of joint custody was the decision of the 2nd Civil Chamber of the Court of Cassation dated 20.02.2017. Until that date the Court of Cassation had rejected post-divorce joint custody decisions, finding them contrary both to the Turkish Civil Code No. 4721 and to public policy. With the 2017 decision:
- The recognition and enforcement of foreign court decisions concerning joint custody became possible.
- It was established that joint custody does not bear any manifest contrariety to Turkish public policy.
- It was accepted that joint custody may be applied in a manner that protects the best interests of the child.
This decision amounts to a fundamental change of case law as regards the applicability of joint custody in Turkish law.
Conditions Required for a Joint Custody Order
Although post-divorce joint custody has not been adopted as the rule in Turkish law, the courts are able to decide in that direction, having regard to the best interests of the child, where certain conditions are satisfied. For joint custody to be awarded, the ability of the parents to cooperate, the absence of harm to the child’s physical and psychological development and the protection of the child’s best interests are taken as the basis. In reaching its decision the court assesses a number of criteria together.
The principle of the best interests of the child
In every decision concerning custody the courts are obliged to have regard to the best interests of the child. If it is concluded that joint custody will contribute to the child’s physical, emotional and psychological development, judgment may be given to that effect. In making a custody arrangement, the child’s needs must be taken as the basis so that the child grows up in a healthy environment and is able to benefit in the best possible manner from their rights to education and health.
The parents’ acceptance and disposition to cooperate
Willingness is decisive in joint custody. It is important that the mother and father have reached agreement on the matter; they must, moreover, be able to act in harmony on questions concerning the child’s upbringing. Since in contested divorces there is a risk that the disputes between the parties will be reflected upon the child, joint custody orders are in practice encountered mostly in uncontested divorces.
Obtaining the child’s views
Under the Turkish Civil Code No. 4721 and the international conventions to which Türkiye is a party, the views of children capable of forming their own opinion must be taken into account in matters of custody. In practice the views of children aged 8 and above are taken into consideration, while greater weight is accorded to the statements of children aged 12 and above. The child’s opinion on joint custody is also assessed in this context, and the court may give its decision after hearing the child’s statement. Nevertheless, if the best interests of the child so require, the court may give judgment contrary to the child’s views.
Expert opinion and social investigation reports
Before awarding joint custody the courts may request reports from psychologists, pedagogues and social workers. These reports guide the judge as to with which parent the child is able to establish a healthier relationship. Whether the parents are able to offer the child a suitable environment, and the child’s psychological condition, are assessed by means of social investigation reports. If the expert opinions are to the effect that the parents are not suitable for joint custody, the court may dismiss the claim.
Circumstances constituting an obstacle to joint custody
The existence of certain circumstances constitutes an obstacle to a joint custody order. These circumstances include one of the parents having subjected the child to physical or psychological violence, the existence of allegations of domestic violence or child abuse, one of the parents being indifferent to the child’s care or failing to discharge their obligations, and the existence of severe and continuing disagreements between the parties. Where such a picture exists, sole custody rather than joint custody is awarded, having regard to the best interests of the child.
Rights and Responsibilities of the Parents
Joint custody requires all the rights, powers and responsibilities falling within the scope of custody to be assumed in common by the mother and father. Under this arrangement the parents are obliged to conduct the process by taking decisions together on a great many matters, from the child’s care to their education and from their health to their legal representation.
Where joint custody is awarded by the court, the parties’ rights and responsibilities are placed within a defined framework. Within that framework, the rights held by the parents and the obligations they assume are examined below.
Rights of Parents Holding Joint Custody
Where custody is joint, the parents have equal rights in matters concerning the child.
The right to maintain personal relations with the child
- The court may determine the timetable on which the parents are to maintain relations with the child in line with the child’s development and needs.
- The parents have the right to spend time with their child to an equal extent.
- The parties may agree on a programme under which they are able to spend time with the child within a defined order.
Equal authority in decisions on education, health and development
- Health: The power to take decisions on matters such as the child’s courses of treatment, vaccinations and hospital procedures belongs to the parents jointly.
- Education: The school at which the child is to be educated and all decisions concerning their education must be taken jointly.
- Social and cultural development: The child’s participation in social activities, the holiday arrangements and their direction towards sport and the arts are determined by the joint decision of the parents.
The right to be the child’s legal representative
- Parents holding joint custody act together in the capacity of legal representative in the child’s legal transactions.
- Transactions carried out on the child’s behalf, such as obtaining a passport or opening a bank account, require the consent of both parents.
Equal rights over the child’s place of residence
- Where the child is to live must be determined by joint decision.
- Where one of the parents wishes the child to live in another city or country, the consent of the other parent is required.
Obligations of Parents Holding Joint Custody
Joint custody does not merely confer rights; it also imposes certain obligations on the parents with a view to ensuring that the child grows up in a healthy and balanced environment.
The child’s care and supervision
- Nutrition, clothing, housing and other basic needs must be met jointly.
- The parents are obliged to offer the child a healthy living environment by supporting their physical and psychological development.
- Healthy communication must be established between the parents in order to support the child’s emotional development.
Financial responsibilities
- Where custody is joint, the obligation to meet the child’s material needs belongs to both parents.
- Educational expenses, health costs and social and cultural expenditure must be assumed jointly.
- The court may determine the proportions in which expenses are to be shared, having regard to the parties’ income position.
- The maintenance obligation takes shape according to the manner in which custody is in fact shared. Where one parent predominantly assumes the child’s day-to-day care, maintenance in the nature of a contribution may be sought from the other.
Support for education and social life
- The parents are obliged to support the child’s school achievement and development.
- Assisting with schoolwork, maintaining communication with educational institutions and encouraging social activities are among the joint responsibilities.
The requirement to take decisions jointly
- As a natural consequence of joint custody, the parents are obliged to take decisions together on important matters concerning the child’s life.
- Decisions cannot be taken unilaterally on critical matters such as health, education and residence.
Acting in accordance with the best interests of the child
- The right of custody must be exercised in a manner compatible with the best interests of the child.
- Personal conflicts between the parents must be prevented from being reflected upon the child.
- The child’s emotional, physical and psychological development must be observed when decisions concerning them are taken.
Joint Custody Agreements
Joint custody requires the mother and father to share the responsibilities relating to the child’s care, education, health and general development. The conclusion of a written agreement between the parties during or after the divorce process makes it easier for the arrangement to operate in an orderly and untroubled manner. Such an instrument is intended to protect the best interests of the child by reducing to a minimum the disputes that may arise.
How Is a Joint Custody Agreement Prepared?
A joint custody agreement is a legal instrument that expressly regulates the parents’ duties and responsibilities concerning the child’s care. It becomes binding at the moment it is approved by the court and affords the parties legal security.
Elements That Must Appear in the Agreement
The essential headings a joint custody agreement must contain are as follows:
Identity details of the parties and the child
- The child’s name, date of birth and national identity number
- The mother’s and father’s names, surnames, national identity numbers and addresses
Residence and accommodation arrangements
- The sharing plan to be applied on public holidays, religious holidays and special days such as birthdays and New Year
- With which parent the child’s principal residence is to be
- Detailed provision as to the periods for which the child is to stay with each parent
Education and school life
- The proportions in which school expenses are to be shared
- The method by which the school at which the child is to be educated is to be determined
- The parents’ responsibilities as regards participation in private tuition, courses and sporting activities
Health and emergencies
- Which parent is to be regarded as authorised in cases of emergency
- The manner in which the child is to benefit from health services
- How decisions are to be taken on matters such as treatment and the use of medication
Financial expenses and maintenance arrangements
- The manner in which the maintenance obligation is to be regulated where custody is joint
- How the child’s day-to-day and long-term financial needs are to be met
- Which parent is to assume which item of expenditure
Legal representation and legal transactions
- The parents’ responsibilities in transactions such as passports, visas and bank accounts
- To which parent the power of representation in the child’s legal transactions is to belong
Personal and social development
- The principles according to which the child’s holiday plans are to be made
- Decisions concerning their participation in social activities and their cultural and artistic development
- How decisions are to be taken on matters of religious education and belief
Communication and decision-making mechanism
- The means of resolution to be resorted to should a dispute arise, for example mediation
- In which circumstances and in what manner the parents are to communicate
- The procedure by which important decisions such as a change of school or travel abroad are to be taken
The child’s views and participation
- The extent to which the child is to be involved in decision-making processes, having regard to their age and level of maturity
- The means by which the child may express their views on the operation of joint custody
The term of the agreement and conditions for amendment
- The period for which the agreement is to remain in force
- The procedure to be followed should one of the parties seek an amendment
The Legal Binding Force of the Agreement
- A joint custody agreement drawn up by the parties of their free will and approved by the court becomes legally binding.
- The court reviews the instrument’s conformity with the best interests of the child and may exercise its power to amend such clauses as it considers necessary.
- Where one of the parties acts contrary to the agreement, the other party may apply to the court alleging that the custody provisions have been breached.
- A court order concerning joint custody may be varied upon the application of one of the parties. Where one of the parents abuses custody or acts contrary to the child’s interests, custody may be regulated afresh by an application to the court.
Assessment
Joint custody agreements are intended to create the most favourable environment for the child’s development by strengthening cooperation between the parents. An agreement drafted clearly and in a manner leaving no room for doubt both clarifies the parties’ responsibilities and secures the child’s rights.
For this reason it is of great importance that the agreement carry legal validity and be drawn up in conformity with the best interests of the child.
Independent Legal Assessment
Although joint custody ceased to be legally contentious after the 2017 change of case law, it still retains its exceptional character in practice. The criterion the courts find decisive is not whether there is a statutory obstacle but whether the parents will be able to sustain, after the divorce, a level of communication permitting them to take decisions about the child together. For this reason a claim for joint custody most often comes to nothing in files marked by intense conflict.
Whether joint custody can operate in fact depends less on the order itself than on an operating arrangement constructed in detail. In planning the process we recommend that the following points be brought to the fore:
- Submitting the claim to the court together with a protocol evidencing the parties’ will to reach agreement
- Determining the child’s residence, the accommodation timetable and the sharing of holidays with a clarity that leaves no room for doubt
- Reducing to writing in advance the procedure to be followed on critical decisions such as education, health and travel abroad
- Ensuring that the views of a child capable of forming their own opinion are obtained in due form
- Agreeing in the agreement in advance on the method of resolution to be resorted to in the event of a dispute
- Keeping open the avenue of a fresh regulation of custody against the possibility of a change in circumstances
Independent Legal provides advisory services and conducts litigation throughout the entire process in divorce and custody disputes, from the assessment of a claim for joint custody to the preparation of a custody agreement and the conduct of the proceedings.