Joint Custody

Recently, there have been news reports about divorced couples having the possibility to share joint custody of their children, and we have been receiving frequent inquiries about this topic. Therefore, we find it necessary to provide a brief and general explanation.

The "Protocol No. 11, Amended with the Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms," which was prepared to expand the civil and political rights outlined in the Convention, was opened for signature on November 22, 1984, and entered into force on November 1, 1988. This protocol was signed by our country on March 14, 1985.

According to Article 5 of the Protocol: "Spouses, in terms of marriage, during the marriage, and in the event of its dissolution, are equal with respect to their rights and obligations in private law matters regarding each other and their children. This provision does not prevent States from taking the necessary measures for the benefit of children."

Under Article 90 of the Constitution, international treaties duly enacted have the force of law. In the case of conflicts between international treaties and laws on fundamental rights and freedoms, the provisions of the international treaties should prevail.

Through the approval of Law No. 6684 published in the Official Gazette on March 25, 2016, the relevant provisions of the Turkish Civil Code, which previously restricted joint custody, were implicitly removed.

In light of these regulations, according to the statements of Ömer Uğur Gençcan, the President of the 2nd Civil Chamber of the Court of Cassation:

In the case of divorce, joint custody is the primary rule, and granting custody to one parent is the exception.
Joint custody is based on the principle of voluntariness. If either parent requests custody to be granted solely to them, it is likely to cause disputes, and therefore, joint custody should not be implemented.
In matters related to joint custody, the opinion of the child, if of an appropriate age, should be obtained by the family court, and expert opinion should be sought if necessary.
Generally, both parties contribute equally to the child’s expenses. If requested, the amount of contribution from each parent will be determined by the court.
Regarding personal relations, the views of both parents and the child, if of an appropriate age, should be considered, and expert opinions should be sought if necessary.
If the joint custody request is found to be contrary to the safety and best interests of the child, custody should be granted to one parent. If neither parent is suitable, a guardian should be appointed, and the relevant authorities should be notified.

(http://www.cumhuriyet.com.tr/haber/turkiye/656606/Velayette_devrim__Ortak_velayet_geldi.html)

Additionally, the ruling of the 2nd Civil Chamber of the Court of Cassation, case No. 2016/15771 and 2017/1737, is as follows:

"Judgment Text"

COURT: Civil (Family) Court
CASE TYPE: Custody

At the conclusion of the case, the local court ruling was appealed by the plaintiff father. After the documents were read and deliberated, the court ruled as follows:

The parties are British nationals. The plaintiff father requested joint custody of their child, born out of wedlock on 24/10/2003. The court ruled that while joint custody may be possible under the parties' national law regarding children born out of wedlock, it rejected the request, stating that joint custody would be against Turkish public order.

The determination of parentage is governed by the law of the country that establishes the parent-child relationship. If the parents share a common nationality, the laws of that nationality apply; otherwise, the law of the habitual residence of the parents is applied (MÖHUK, Art. 17/1).

In the event that a foreign law is contrary to Turkish public order, it will not be applied. In cases deemed necessary, Turkish law will apply (MÖHUK Art. 5/1).

In the present case, the issue to resolve is whether "joint custody" is in clear contradiction with Turkish public order. To address this, it is necessary to review our domestic legal provisions on this matter.