For reasons such as divorce, separation, or the parents never having married, a child most often comes to live with only one of the mother or the father. In that picture, the preservation of the child’s bond with the other parent and with the family members close to him or her is an interest that Turkish law separately safeguards. The right of personal contact aims precisely at maintaining that bond and performs a decisive function for the child’s emotional development.
The questions that give rise to argument in practice generally gather at the same points: to whom the right is afforded, by what criteria the court establishes the contact arrangements, in which cases the right may be narrowed or removed altogether, and what remedy is to be pursued where the requirements of the judgment are not complied with.
In this briefing note we assess, with a practical eye, the legal basis of a claim for the establishment of personal contact, the conditions required, the forms in which contact may be established, the limits of the right, the courts with subject-matter and territorial jurisdiction, and the regime for the handover of children that changed in 2021.
The Right to Establish Personal Contact with a Child
The Legal Nature of the Right
The power to establish personal contact is not a one-sided facility concerning the parent alone; it is directly connected with the personality rights of both the child and the parent. In the case law of the European Court of Human Rights and of the Constitutional Court, this right is assessed within the scope of the right to respect for private and family life.
This right, which enables the parent not granted custody to meet with his or her child on a regular basis, is a matter of public order; it is therefore taken into account by the courts of their own motion. The right is nonetheless not absolute in character. Where the contact established harms the interests of the child, it may be restricted.
To Whom Is the Right of Personal Contact Afforded?
The legislature has not confined this power to the mother and the father alone but has also allowed third persons of importance for the child’s development to advance a claim. The right of claim arises in respect of two groups:
- The mother and the father: where the spouses divorce or begin to live apart, the parent not granted custody may seek the establishment of personal contact with the child. That parent acquires the power to see the child on the days and at the times determined by the court.
- Third persons: if the best interests of the child so require, the establishment of personal contact may also be ordered in favour of family members such as a grandmother, grandfather, aunt or uncle. The same possibility applies in respect of a stepmother and a stepfather, the biological family of an adopted child, and the biological family of a child placed with a foster family. The sole condition is that the contact to be established must not impair the interests of the child.
In Which Cases Is Personal Contact Ordered?
Having regard to the best interests of the child, the court may order the establishment of personal contact in the following cases:
- Divorce: where the spouses divorce, the regulation of personal contact may be ordered in respect of the spouse not granted the right of custody.
- An order of separation: where an order of separation is made in respect of the spouses, the court regulates the rights of the mother and the father and the personal contact they are to establish with the child under Turkish Civil Code Art. 182(1)-(2) and Art. 336(2).
- Suspension of cohabitation: where the spouses suspend their common life, if there is a child who has not attained majority the judge takes the necessary measures concerning personal contact between parent and child under Turkish Civil Code Art. 197(4) and Art. 336(2).
- Removal or alteration of custody: if, following the divorce, the parents’ right of custody is removed or that right changes hands, the establishment of personal contact may be ordered in respect of the parent without custody under Turkish Civil Code Art. 323.
- The parents not being married: where there is no marital bond between the mother and the father, custody belongs to the mother. In that case the father who acknowledges the child may, following the acknowledgment, seek the establishment of personal contact.
The Conditions for the Right of Personal Contact
The court’s ability to order the establishment of personal contact depends on the cumulative fulfilment of the conditions set out below:
- The best interests of the child: the primary and weightiest principle observed in regulating personal contact is the best interests of the child. The court places the interests of the child above those of the parents and determines the scope of the contact to be established according to that criterion.
- The suitability of the nature of the contact to be established: the contact arrangements are established in a manner compatible with the child’s living conditions, so as not to impair his or her right to live in peace, his or her school life or his or her social environment.
- Reflecting the child’s interests in the content of the contact: in giving its decision the court weighs as a whole the child’s present and future position, living conditions, health, education, and moral and intellectual development, and shapes the outcome in a manner consistent with the child’s interests.
- Hearing the child: international conventions and legal doctrine accept that the child’s wishes and views must be given weight when the establishment of personal contact is ordered. In the practice of the Court of Cassation, the child is required to be heard by the court before a decision is given from the age of 10 onwards. If a child with capacity of discernment does not wish personal contact to be established, and it is also established that such contact harms the child’s interests, personal contact should not be ordered. The hearing may be conducted by the judge in person, or it may be carried out in the presence of an educational psychologist, a specialist psychologist or a nursery teacher.
The Scope of Personal Contact and the Forms It May Take
Personal contact is a facility enabling the parent without custody, or a third person, to spend time with the child on a regular basis. This contact may be established by visiting the child, by being with him or her for the period determined, and by using every kind of means of communication such as the telephone, e-mail, text messages or video calls.
In determining the frequency and duration of contact, many factors are weighed together: the child’s existing relationship with his or her mother and father, the distance of the parties’ places of residence from the child, the parents’ working days and hours and their working conditions, their annual leave periods, the characteristics of the environment in which they live, and special days such as national and religious festivals and the New Year. By way of example, in the practice of the Court of Cassation the second day of religious festivals is regarded as suitable for the establishment of personal contact with the child.
Personal contact between the mother or the father and the child may be established in the following forms:
- Unsupervised contact: during the period in which the court has permitted personal contact, the parent spends time with the child as he or she wishes, to the extent compatible with the child’s interests.
- Contact established by means of communication: the maintenance of personal contact by remote means of communication such as telephone calls, video calls, text messages or e-mail.
- Supervised contact: the carrying out of contact between parent and child under the supervision of a specialist such as an educational psychologist or a social worker.
- Contact through a third person: where the court finds direct contact between the parent and the child inadvisable, the provision of contact through a relative or a public official.
The Criteria Observed in Establishing Personal Contact
In establishing the contact arrangements between parent and child, the courts take the following criteria as their basis:
- The child’s habits and educational position: in determining the contact timetable, the child’s school programme and other social activities are taken into account, and care is taken not to disrupt his or her daily routine.
- The child’s age and level of development: under the practice of the Court of Cassation, where the child is aged 10 or over, his or her wishes become more decisive in determining the scope of personal contact. For younger children, contact of shorter duration established in safe environments is preferred. How the contact to be established will affect the child’s level of development is also separately assessed.
- The social and economic position of the parties: the social environment in which the parent who is to meet the child finds himself or herself, and the economic means he or she can offer the child during contact, also bear on the decision.
The Limits of the Right of Personal Contact
Since the right of personal contact is not absolute in character, it may be narrowed by the court at any stage, and may even be removed altogether, in accordance with the principle of the best interests of the child. Under Turkish Civil Code Art. 324, such restriction or removal arises in the following cases:
- The child’s interests being placed at risk: in accordance with the principle of best interests taken as the basis in regulating personal contact, the contact established must not harm the child’s physical, mental and emotional development.
- The child’s peace being disturbed by reason of the personal contact: contact is expected not to unsettle the child’s peace but, on the contrary, to offer him or her the opportunity to spend happy time. The child being neglected, not feeling safe, or displaying aggressive or withdrawn behaviour after returning from the parent are indications that his or her peace has been placed at risk.
- The mother and the father acting contrary to the obligations in Turkish Civil Code Art. 324(1): under Turkish Civil Code Art. 324(1), each of the parents is obliged not to impair the other’s personal contact with the child and not to obstruct the child’s education and upbringing. Creating difficulties in the handover or collection of the child, unsettling the child’s trust by never exercising the right of visit, or exceeding the limits of the right of visit by abducting the child result in a breach of these obligations.
- Obstruction of the child’s education and upbringing: the contact established must not disrupt the child’s education or prevent his or her attendance at school and participation in activities. Keeping the child with the parent for a long period, or interrupting his or her education by taking the child abroad, are examples of this.
- The parent remaining indifferent towards the child: a parent granted the right of personal contact failing to comply with the contact hours determined, changing the place of contact according to his or her own preference, and determining the activities to be carried out with the child solely in line with his or her own wishes are assessed within this scope.
- The existence of other important reasons: where conduct amounting to ill-treatment, violence or neglect is displayed towards the child by a parent or by third persons, the restriction or removal of personal contact may likewise be ordered.
Personal Contact Between a Child and Third Persons
The court may order that contact between the child and the parent be conducted under the supervision of a third person, and may equally order the establishment of personal contact directly between the child and third persons.
The Legal Framework
The ability of persons other than the parent without custody to establish personal contact with the child is regulated in Article 325 of the Turkish Civil Code:
Turkish Civil Code Art. 325
“Where extraordinary circumstances exist, the right to request the establishment of personal contact with the child may also be afforded to other persons, and in particular to relatives, to the extent that this is consistent with the interests of the child.”
The expression “other persons” used in the provision covers a wide circle. Within this scope may be counted the child’s siblings living apart from him or her; grandmothers, grandfathers, paternal uncles, paternal aunts, maternal aunts and maternal uncles, together with other relatives in a close relationship with the child. As regards persons without a tie of kinship, stepmothers and stepfathers, and biological mothers and fathers, fall within this framework.
The Conditions for Establishing Personal Contact with a Third Person
The following conditions are required for personal contact to be established between a child and a third person:
- the contact to be established must serve the interests of the child.
- a bond resembling the relationship between parent and child must previously have formed between the child and the third person. A continuing relationship between the child and his or her grandmother following the parties’ divorce is an example of this.
- an express claim must have been addressed to the court for the establishment of personal contact.
Courts with Subject-Matter and Territorial Jurisdiction
As regards subject-matter jurisdiction, actions concerning the establishment of personal contact with a child are heard in the Family Courts.
Territorial jurisdiction is determined according to how the claim is advanced. If the claim for personal contact is advanced within a pending divorce or custody action, the Family Court hearing that action has jurisdiction. If, by contrast, an independent action is brought for the establishment of personal contact, the court with jurisdiction is the Family Court of the child’s place of residence.
Enforcement of Personal Contact Judgments
Determining the Handover Locations
When the establishment of personal contact between the child and a parent or a third person is ordered, the most suitable handover location for the child is established, having regard to the child’s best interests and safety. Taking into account the child’s age and his or her psychological and physical safety, the place of handover may be determined as the child’s place of residence, neutral areas agreed upon by the parties (a park, a shopping centre), social services centres, or safe areas in the presence of an educational psychologist or police officers.
Where the performance of judgments or interim orders concerning the handover of a child and the establishment of personal contact is obstructed and the enforcement of the decision is to be secured through official authorities, the handover locations are determined by the Judicial Support and Victim Services Directorates established by the Ministry of Justice. Upon the request of the directorate, governorships and municipalities determine suitable handover locations having regard to the interests of the child, and create them where none exist.
Performance of Judgments and Interim Orders on Handover
Where the party holding the right of custody obstructs the establishment of personal contact, enforcement proceedings based on a judgment were formerly commenced under the Enforcement and Bankruptcy Act on the basis of the judgment, and the handover of the child was carried out by that means.
With the amendment that entered into force on 30 November 2021, however, the handover of children was taken out of the hands of the enforcement offices and entrusted to the Judicial Support and Victim Services Directorates attached to the Ministry of Justice.
Where the person whose right of personal contact has been infringed applies to these directorates, the handover is carried out in child-friendly contact centres in the presence of psychologists, educational psychologists and social workers.
Who Bears the Handover Costs?
Where the establishment of personal contact is ordered, the costs necessary for the handover (for example, the cost of travelling to and from another city where the parent without custody lives in that city) are, as a general principle, borne by the holder of the right of personal contact. In some cases, however, it may also be ordered that these costs be met by the party holding the right of custody.
Where the handover process is conducted through an application to the Judicial Support and Victim Services Directorates, under the new arrangement the costs relating to the handover of the child are met by the Ministry of Justice free of charge.
What Happens If the Child Is Not Handed Over?
Failure to comply with the personal contact arrangements determined by the court, or with the obligations concerning the handover of the child, may result in a breach of the court’s decision.
Cases Regarded as a Breach of the Court’s Decision
- Forcibly detaining or abducting the child
- Failing to hand the child over despite the court’s decision
- Deliberately obstructing or delaying the handover process
- Resorting to violence or threats during the handover
- Preventing contact by exerting pressure on the child
- Acting contrary to the court’s decision at the handover stage
Sanctions That May Be Applied
Where the child is not handed over despite the decision, an action for damages may be brought against the person breaching the decision, and an alteration of custody may also be sought.
A parent acting contrary to a judgment or an interim order is regarded as having committed the offence of failing to present the child under Article 41/F of the Child Protection Act No. 5395. If the parent holding custody refrains from handing the child over on the day and at the place determined in the judgment, an application may be made to the Judicial Support and Victim Services Directorates within the one-month preclusive period relating to the handover of the child, provided that the judgment has become final, requesting that a warning be sent to the person acting contrary to the judgment. If, notwithstanding service of the warning, the child is again not handed over on the date and at the place determined, disciplinary imprisonment is applied to the person concerned.
Article 41 of Act No. 7343 provides for separate periods for different forms of breach:
- Persons acting contrary to decisions on the establishment of personal contact are sentenced to disciplinary imprisonment of from three to ten days.
- Persons acting contrary to a handover order relating to the enforcement of a judgment or an interim order on the handover of a child are punished with disciplinary imprisonment of up to three months.
- Where a right-holder to whom the child has been handed over for the purposes of personal contact fails to return the child at the end of the period, disciplinary imprisonment of up to three months is applied to him or her.
The court with subject-matter and territorial jurisdiction to examine complaints falling within the scope of these provisions is the Family Court of the place where the directorate conducting the process is located.
Independent Legal Assessment
In personal contact disputes the element that determines the outcome is most often not the strength of the legal argument but the quality of the concrete data placed before the court. The child’s school calendar, the distance between the parties’ residences, working patterns and observations supported by expert reports directly shape the contact arrangements the court will establish. Constructing the claim realistically and workably from the outset reduces the need to return to court at a later stage with a request for alteration.
The enforcement stage calls for separate expertise. The transfer of the handover of children out of the enforcement offices to the Judicial Support and Victim Services Directorates has also changed the procedure and the time limits for applications. When a roadmap is drawn up in a particular file, the following points should be addressed as a priority:
- seeking a contact timetable that is workable in the light of the child’s age, educational routine and the parties’ places of residence
- assessing from the outset the age threshold at which the child must be heard and the need to obtain an expert opinion
- regulating special periods such as religious festivals, the mid-year break and the summer holidays expressly in the petition
- in a claim in favour of a third person, establishing the requirement of extraordinary circumstances in Turkish Civil Code Art. 325 by concrete facts
- not missing the one-month preclusive period in the event of a breach, and addressing the application to the correct directorate
- supporting the grounds falling within Turkish Civil Code Art. 324 with documents in a claim for restriction or removal
Independent Legal provides advisory services and conducts litigation throughout the whole process, from the litigation stage to the enforcement of the judgment, in disputes concerning custody and the establishment of personal contact.