The countries taken and continue to take some precautions in order to battle with this pandemic disease of coronavirus which occurred in the city of Wuhan of China on December, 2019 and the primary measures taken is to keep the social distancing, in another saying, to decrease the social distancing by maintaining the distance between people and to perform the social isolation.
Some of the measures also taken as this virus were occurred in the Republic of Turkey, one of them is to receive the permission from the governor’s office in order to travel between the cities. This measure bring this question to our minds from the point of view of Family Law: How a parent who is not entitled to custody will perform the personal relation with his child who lives in a different city? Before we evaluate this issue, let’s take a brief look to the Articles that regulate the custody and the personal relationship under Turkish Civil Code:
- Article 336 : 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.
- Article 323 : Either of mother and father has right to request to be formed personal relationship with the child who has not been under his or her parental custody or who has not been left to him or her.
As it is seen in the consideration the above articles of the code; the custody right of the common child is entitled to a parent in case of the parties’ marriage is no longer continues and unless the opposite situation is not existed, the personal relation between the parent who does not have the custody and the child; the parties are obliged to perform this personal relation within the determinate limits. Thus the each of the mother and the father is obliged not to harm the personal relation of the child with the other parent. We would like to express briefly that; as the parties’ agreements or any other arrangements can be made with the consideration of the situation of the parties and the common child can be possible; the common practices of Supreme Court are to establish the personal relation on the odd or even numbered weeks and during the child’s winter and summer holidays and also on the feasts.
It is allowed with the circular of the Ministry of the Interior dated 28.03.2020 and numbered 6009 that the passengers stated below that have special conditions that will use the airline or road can travel with the travel permission document from Travel Permission Council.
- People who are transferred with the doctor’s decision due to their medical needs,
- In the event of the death of a close family member,
- Especially within last 15 days, people who do not have any accommodation in the place where they came to
As it is seen with the limited situations stated above; this circular allows people to travel between the cities only if there is any force majeure case, but principally all citizens must remain in their homes and cities where they reside.
In addition to this circular on 03.04.2020 it is decided to temporarily shut down the borders of 30 metropolitan cities Adana, Ankara, Antalya, Aydın, Balıkesir, Bursa, Denizli, Diyarbakır, Erzurum, Eskişehir, Gaziantep, Hatay, İstanbul, İzmir, Kahramanmaraş, Kayseri, Kocaeli, Konya, Malatya, Manisa, Mardin, Mersin, Muğla, Ordu, Sakarya, Samsun, Şanlıurfa, Tekirdağ, Trabzon, Van) and also Zonguldak for all the vehicles including road, seaway and ailrway (by public transportation, private vehicle or foot) for 15 days starting from 03.04.2020 at 24:00. Well, how a parent who is not entitled to custody will perform the personal relation with his child who lives in a different city in this situation?
First of all changing the cities is not recommended but there is not any travel ban which prohibits the passengers to travel with their own vehicle at this moment. But except the cities mentioned above, it will be better for us to advise to the parents who will travel with their own vehicle must pay maximum attention and must carry their court’s decision which shows the personal relation in order to support their reason of the travel. In this way that person can prove the reason of his/her travel with its document during any possible control at the entrance of the city.
Again except the cities mentioned above, in case of the parent’s travel with the bus to the city of the child in order to establish the personal relation with his child, that parent must obtain the travel permission document from the application desk that are build for this purpose at the bus terminals, from the call center of Call 199 that will be established by the Ministry for this purpose or from the E-Application system of the Ministry that is currently available from E-Government.
Even the travels of the parent who live in different cities in order to set the personal relation with his child is not counted as one of the reasons above, as we Family Law Counsels closely know and experience this matter that, the parents who can see their child with the personal relation look forward for such times in order to fulfil their longings. Therefore, acceptance of this fact out of the context will be against the justice and fairness; we consider that this must be applied with the comparing. If this fact will not be possible in the upcoming days, the parents should not use this situation with bad faith and must make an effort to keep the relation active between the child and the parent. For example: It will be acceptable that the parties’ making an agreement to the visits on the future for the visits that cannot be held between the cities that are affected for the travel ban.
The coronavirus is a pandemic disease that no one is familiar with before and our priority must protect ourselves and people around us. In this regard the parties whose divorce cases are still pending or finalized must act with the consideration of themselves and the people that they are surrounded with but they must pay the greatest attention and care for not to violate the other parent’s legal right of the personal relation with his/her child. For instance, the parent who has the custody right removing or limiting, the personal relation of the other parent with the child, without any valid reason with his/her own decision will be against the legal regulations. In addition to this if one of the party has specific and important facts that the other party has this virus; first of all the parties must take a healthy, understanding and compatible common decision with the consideration of the best interest of the child; if this is not possible or if one of the party has the opinion that his/her own right is violated; that party must take legal actions for this matter to be evaluated and to prevent the loss of the right.