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 abovementioned 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.