1. NOTARIAL CONTRACT/PERMISSION IN ADVANCE:
A contract issued in Notary indicating that the mother return to Netherlands with child in common would not be enforceable in Turkish Law. Under the Turkish Civil Law spouses are free to make prenuptial agreements only about the marital property. Since According to the Turkish Civil Law it is accepted that the custody has close link with public order, the child custody is regulated specifically in the Law and cannot be regulated by an agreement. The Judge will decide on child’s custody even if the parties does not request from the court to made such a decision during the divorce case.
The custody issues cannot be regulated with agreement, the Judge will decide which parent will have the custody of the common child in case of divorce. In Turkish law, custody is regulated under Turkish Civil Code No. 4721. According to this law, the custody rights of a parent begin with the birth of the child and continue until the child is 18 years old. Thus, a child is deemed to be under the custody of its mother and father. Thus, during the marriage parents use the custodial rights together. As a result if spouses agree that the mother can take the child to another country during the marriage and both spouses apply this agreement there will be not legal issue. But we would like to emphasize that, if spouses have such an agreement but one of the spouses does not comply with its terms, it cannot be possible to enforce the agreement against this spouse. Such an agreement is not enforceable under Turkish Laws. On the other hand, in case of divorce pursuant to the Art. 336 the Judge will entrust the custody of one of the spouses. Judge will decide by considering the benefit of the child even if the parties have a notarial agreement.
2. INFLUENCE OF BEING MARRIED:
Article 337 regulates the custody issues in case of parents are not married. According to the Art. 337 of Turkish Civil Code, “In case of parents are not married, the custody of the child belongs to the mother.” If the mother and the father are not married, custody will be gained automatically by the mother at birth. In this possibility the mother has full custody over the child. Since, this custodial right contains right to decide child’s habitual residence, the mother who has the custody can move another country with the child. The father’s permission is not required.
But according to the Art. 295 of Turkish Civil Code, “The father can acknowledge the child with an application to registrar or the court or with a declaration in his testament.”
The father who acknowledges the child has right to request from the court to regulate the custody issue. In that case the court examine whether there are conditions which require to take the custody from the mother or not. If the court determines that the conditions are not require to take the custody from the mother, the mother continues to have the custody right.
Legal Department No.2 of the Supreme Court stated in its decision that, “the custody of the child who born out of wedlock is belong to the mother as required by law. Since the court does not find any condition which requires to take the custody from the father, the father’s request on custody should be rejected by the court even if the father acknowledges the child.”
As a result, if parents are not married the custody will be gained automatically by the mother at birth. This right of custody contains the care and protection of the child, right to decide the name, habitual residence, education and representation of the child. Thus, the mother who has the full custody can decide the habitual residence of the child without a permission from the father.
3. REGISTERED PARTNERSHIP:
In Turkish Civil Law, the registered partnership does not exist. Such a regulation does not take part in Turkish International Private and Procedural Law No. 5718. Reason of that is any substantive law of the Republic of Turkey does not mention an institution called registered partnership. Art. 5 of the International Private and Procedure Law No.5718 states that “ If the provision of the foreign law to be applied in a certain case is openly contrary to the public order of Turkey, the
said provision shall not be applied. Where it is deemed necessary, Turkish law shall be applied.” In Turkish Civil Law marriage has close link with public order and the form of the marriage has been strictly regulated. Therefore, in Turkish Law the marriage institution is strictly related with the public order and registered partnership is not regulated.
4. RECOGNIZING WITHOUT CUSTODY:
As it is stated in the Question 2, in case of parents are not married, the custody of the child who born out of wedlock belongs to the mother pursuant to the Article 337 of Turkish Civil Code.
Recognizing without custody is possible under Turkish Civil Code. The father can recognize the child without requesting custody.
According to the Art. 295 of Turkish Civil Code, “The father can acknowledge the child with an application to registrar or the court or with a declaration in his testament.” If father recognizes the child but does not request the custody, the custody of the child is continue to be belong to the mother. However, it should be emphasized that, if mother and father get married after the father recognizes the child, the custody will belong to the mother and father together.
5. QUESTION 5 / APPLICABLE LAW:
According to the Art. 14 of the International Private and Procedure Law 5718
(1) The grounds and provisions for divorce and separation shall be governed by the common national law of the spouses. If the spouses have different nationalities, the law of the place of their common habitual residence, in case of absence of such residence, Turkish law shall govern.
(2) The provisions of the first clause shall also govern demands for maintenance between divorced spouses. This
provision also governs in cases of separation and nullity of marriage.
(3) Custody and problems thereof in accordance to divorce is also governed by the provisions of the first clause.
(4) Turkish law shall govern demands for temporary measures.” As it is indicated in the Law, common national law of the spouses shall be applied to the custody issues. If the spouses have different nationalities, the law of the place of their common habitual residence, in case of absence of such residence, Turkish law shall govern.
The habitual residence is a place where a person lives and maintains life activities. In Feder v. Evans-Feder case, (3rd. Cir. 1995) 63 F.3d 217, the court stated its definition of habitual residence as follows:
“[W]e believe that a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a “degree of settled purpose” from the child’s perspective. We further believe that a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child’s circumstances in that place and the parents’ present, shared intentions regarding their child’s presence there.”
Therefore, in case of the mother take the child to the Netherlands, with the aim of reside, and the child maintain his/her life activities in there, goes to school in there, the habitual residence of the child will be Holland. But the time is not binding for the determination of the habitual residence. The important thing is the aim of reside and maintain life activities in there.
6. CUSTODY REGULATION IN TURKEY:
In Turkish law, custody is regulated under Turkish Civil Code No. 4721. According to this law, the custody rights of a parent begin with the birth of the child and continue until the child is 18 years old. Thus, a child is deemed to be under the custody of its mother and father. However, in a divorce or separation case, the court may give custody to one of the parents.
According to the Art. 336 of Turkish Civil Code “Parents shall use the custody together as long as marriage lasts. If the common life is terminated or separation is realized, the judge may entrust the custody to one of the spouses.”
Therefore, in Turkish law there is only “sole custody” and term “joint custody” does not exist. Thus, in case of divorce, the Court shall give custody to one parent. Right of non-custodial parent is limited to visitation rights which are arranged by the Court. Custodial parent have to obey the visitation rights which are declared in the verdict.
To determine custody there is no specific grounds but every case is considered individually. In making this decision, the judge will consider several factors, including but not limited the economic conditions of a parent, whether a parent is able to afford the child’s costs in terms of an education and social life. In determining what is in the best interests of the child, the jobs, salaries and lifestyles of the parents play a large role. Since an infant child needs its mother’s care, custody of the infant child is usually given to the mother. In Supreme Court application women get custody generally in the decisions given before, because of the reason that the child needs love and care of his/her mother.
If the custodial spouse wants to go to another country he/she should say this fact before the court, because the court will regulate the right to visit of non-custodial parent according to parent’s life styles, places. The court would regulate the right to visit in different way in case of custodial parent lives abroad, in that case the court may decide that, the child will spend the summer holidays with the non-custodial parent in Turkey.
If custodial parent decides to move another country without telling this before the court, He/she will violate non-custodial parent’s right to visit and non-custodial parent can apply official establishments relying on Convention on Civil Aspects of International Child Abduction.
Assembly of Civil Chambers states in one decision that, “to ban the common child’s on leaving the country in order to prevent custodial foreign mother to abduct the child to the foreign country, prevents the mother to perform its custody obligation and violates the freedom of travel which is regulated in the Turkish Constitutional Law as fundamental right. For that reason, the ban on to ban the common child’s on leaving the country should be removed.”
As it can be seen the above mentioned Assembly of Civil Chambers decision ın Turkish Law, it is not an obstacle for a parent to have custody if that parent is a foreign. Supreme Court made different decisions on this matter previously. In prior decisions Supreme Court states that, “the custody should be given to the father on the grounds that, the mother is living abroad and in the event of she has custody, the child who is a Turkish citizen cannot be raised according to the Turkish culture and traditions.” Then, the Supreme Court changes its point of view in the later decisions and gives the custody of child to foreign mother. Supreme Court indicates in this decisions that, the benefit of the child is more important than he/she to be raised in Turkey. If the child’s benefit requires his/her to live with her mother, the foreign element of mother is not relevant. In that case, the visitation rights of the non-custodial parent will be regulated by considering custodial parent and the child is living abroad. The non custodial parent will have visitation right within a period determined by court which may be in winter and summer holidays.