Custody is a form of legal guardianship granted by law. It encompasses the authority and responsibility to meet both the material and emotional needs of the child, to oversee their education and healthcare, and to make significant decisions regarding the child’s future.
The determination of who holds custody rights may vary depending on the circumstances. As a general rule, custody is jointly held by parents who are legally married. One of the most critical issues that arises, particularly in the event of divorce, is the determination of which parent will be granted custody.
CUSTODY CASES
Custody cases generally focus on three main issues. The first concerns the determination of which parent will be awarded custody in the event of divorce or separation. The second involves a request for change of custody when the current custody arrangement no longer serves the best interests of the child, where the right of custody is not exercised properly. Lastly, in cases where the child’s health or safety is at risk, a complete termination of parental custody rights may be sought.
A parent who wishes to initiate a lawsuit regarding the custody must apply to the family court. The application should include details about the child’s current situation, a request for change of custody rights, and supporting evidence for the claim. The petition must also include the reasons why it is in the best interests of the child to stay with which parent, together with evidence.
a. Importance of the Child’s Age and Opinion
The child’s age is a significant factor in custody proceedings. According to the Turkish Civil Code, the opinions of children who are 12 years of age or older must be taken into consideration by the court. Courts assess which parent the child prefers to live with and whether this preference aligns with the child’s best interests. However, the child’s opinion alone is not determinative.
b. Importance of Social Investigation Reports
Social investigation reports are key documents used to evaluate the child’s living conditions and the influence of each parent on the child’s well-being. These reports are prepared by social service experts and include assessments of the child’s social environment, education, health status, and relationship with each parent.
c. Impact of Psychologist and Pedagogue Reports
Reports from psychologists and pedagogues provide detailed information about the child’s psychological condition and their relationship with each parent. These reports evaluate the child’s mental health and the emotional impact of the parents. Courts rely on these reports to identify factors that may adversely affect the child’s development.
CHANGE OF CUSTODY CASE
A custody modification case is a legal action filed to ensure the protection of the best interests of the child, and it is evaluated under Articles 183, 335, and subsequent provisions of the Turkish Civil Code. Custody does not grant parents unlimited rights over the child; on the contrary, it imposes significant responsibilities such as safeguarding the child’s physical, mental, and moral development.
Custody may be modified or revoked in situations where one parent fails to provide adequate care, engages in abusive behavior, or when substantial changes in living conditions arise that could negatively affect the child’s well-being.
In custody modification proceedings, the court bases its decision primarily on the best interests of the child. If the child has reached a sufficient level of maturity, their opinion is also taken into consideration. During the judicial process, factors such as social investigation reports, the financial and social conditions of the parents, and the physical and psychological needs of the child are assessed.
If the court determines that a change in custody is necessary, responsibility for the child’s care is transferred to the more suitable parent, or if deemed necessary, the child may be placed under state protection.
Custody modification is considered in circumstances where the child’s best interests are compromised, or where the current custody arrangement is no longer compatible with the child’s development. According to the Turkish Civil Code and judicial precedents in Turkey, the grounds for custody modification can be detailed under the following headings:
- Behaviors That Endanger the Child’s Physical and Psychological Development
A parent who holds custody may lose it if they engage in conduct that adversely affects the child’s physical or mental well-being. Examples include:
Physical abuse: Infliction of bodily harm such as hitting or other forms of violence against the child.
Psychological pressure or neglect: Persistent verbal abuse, humiliation, emotional neglect, or raising the child in an environment lacking affection.
Allegations of sexual abuse: Any direct or indirect sexual misconduct toward the child; in cases of confirmed abuse, custody is immediately revoked.
- Lifestyle Contrary to Common Moral Values
If the custodial parent leads a lifestyle that may negatively influence the child’s moral development, the court may consider this a valid ground for custody modification. Examples include:
Continuously cohabiting with multiple partners in the presence of the child,
Drug or alcohol addiction,
Engagement in prostitution-related activities,
Spending excessive time in nightclubs or similar venues without proper supervision of the child.
- Failure to Provide Adequate Care and Attention
A parent’s failure to meet the child’s basic needs, including education, social development, not spending enough time with the child may justify a change in custody.
Such failures include:
Neglecting the child’s education,
Ignoring the child’s medical needs,
Failure to provide adequate clothing, housing, and nourishment,
Leaving the child in the long-term care of others (e.g., grandparents or caregivers).
- Significant Changes in the Parent’s Marital or Living Conditions
If the custodial parent remarries, relocates to another city or country, or experiences economic or health-related changes that could negatively impact the child, the custody arrangement may be revised. For example:
The new spouse mistreats the child or is incompatible with the child,
The new location lacks adequate education or healthcare resources,
The custodial parent suffers from severe mental illness (e.g., depression, schizophrenia),
Loss of income leads to an inability to provide for the child’s basic needs.
- The Child’s Preference (If of Sufficient Age and Maturity)
A child who has reached a certain age and level of maturity may express a preference regarding which parent they wish to live with. Courts generally give weight to the opinions of children aged 12 and older. The Turkish Court of Cassation has also stated that the opinion of a child over 8 may be considered, provided the child has sufficient comprehension. However, the child’s statement alone is not decisive; it must be evaluated alongside other relevant factors.
- Inapplicability of the Current Custody Arrangement
Custody may be modified if the custodial parent relocates abroad for an extended period, is incarcerated, or passes away. A change may also be necessary if the existing custody order no longer meets the child’s evolving needs.
- Abuse or Misuse of Custody Rights
If the custodial parent prevents the other parent from having a personal relationship with the child, violates court orders, or tries to take revenge by using the child as an instrument, this is also considered abuse of custody and custody can be changed if these situations are proven.
We would like to emphasize that while all these reasons are evaluated the primary criterion in custody modification decisions is the best interests of the child. Each case is evaluated individually, taking into account social investigation reports, assessments by psychologists and pedagogues, witness statements, and concrete evidence.
Competent and Authorized Court
Competent Court:
The cases where custody is taken away from one spouse and given to the other (change of custody) falls under the jurisdiction of Family Courts.
Authorized Court:
Under Turkish procedural law, proceedings for the change of custody are considered non-contentious matters (as per Article 382/2-b-13 of the Code of Civil Procedure). In non-contentious matters, the court located in the place of residence of the applicant is also authorized.(CCP 384)
In this case, the lawsuit for change of custody may also be filed in the court where the defendant or the claimant resides. The case shall be conducted according to the simple trial procedure and shall be finalized as soon as possible and the judge shall take the necessary measures to protect the child during the proceedings.