Summary
In a custody lawsuit, the child has the right to express his or her views on the living arrangement that concerns him or her. However, in Turkish law there is no single “age of choosing custody” that applies to every child. In obtaining the child’s views, the child’s age, maturity and capacity to grasp the subject are considered; in reaching a decision, safety, care needs and all living conditions are assessed together. Listening to the child does not mean placing on the child the responsibility of deciding between mother and father. [1–3]
Why is it important to hear the child in a custody lawsuit?
A custody decision directly affects where the child will live, how daily care will be continued and the child’s relationship with the parents. For this reason, the child is not merely the subject of a file about which adults talk. The child must be able to convey, under suitable conditions, his or her experiences, needs and concerns about his or her life.
Article 12 of the United Nations Convention on the Rights of the Child provides that a child capable of forming views has the right to express them freely in matters affecting the child, and that those views are to be given due weight in accordance with the child’s age and maturity. This right does not mean that the child must choose a parent. A child may also explain that he or she is tired of moving between two homes, does not want to change schools, or is afraid at a particular visit. [2]
The right to be heard and the power to decide are different
Learning the child’s thoughts is not asking the child alone to bear the consequences of the decision. Comparisons such as “Who wants you?” or “Whom do you love more?” do not serve the purpose of a custody assessment. What must be examined is which arrangement is more suitable for the child’s daily life and development.
The judge considers the child’s statements together with the expert assessment, the care history, school and health information, the parents’ means and the risks. Where the child’s view is not followed, the concrete reasons why that view was not reflected in the outcome also matter. Explanations such as merely “because the child is young” or “because the child wants the father” do not reveal the particulars of the file.
At what age is a child heard in a custody lawsuit?
Conclusions valid for everyone cannot be drawn, such as “at age 8 the child is definitely heard,” “after age 12 the child chooses,” or “at age 15 the child’s preference must be followed.” Calendar age matters in the assessment; but the child’s ability to understand events and to express his or her own thoughts is also examined separately. Two children of the same age may differ in development and in the conditions they live in.
The expression “being at the age of discernment (idrak çağı)” used in practice concerns the ability to grasp the meaning of the custody dispute itself and to form a view. This assessment does not involve asking the child legal terms or expecting the child to know all the consequences of the proceedings. Methods that take into account the language the child uses, the child’s communication needs and developmental characteristics are required.
How are a young child’s needs understood?
A young age does not make investigating the child’s needs unnecessary. When verbal expression is limited, the care arrangement, the relationship with the parents and developmental needs can be assessed through an expert examination. By contrast, a play session, a drawing or behavior in a single interview should not be presented on its own as a definitive custody outcome or a medical diagnosis.
A child’s inability to express himself or herself comfortably does not by itself lead to the conclusion that the child dislikes a parent, has been coached or has certainly suffered violence. Assessing the possible reasons for a communication difficulty is a separate task requiring appropriate expertise.
Is the judge bound by the child’s preference?
The child’s views must be given due weight; but a preference is not, on its own, a binding vote. For example, a child may prefer to live in the current home in order to stay close to friends. Another child may choose the home where fewer rules are set. The reasons for both statements must be understood, and their meaning for care and development must be examined.
The preference of a child with sufficient maturity, expressed consistently, with reasons and freely, is particularly important. Even so, if there is a concrete safety risk, a decision cannot be based on the preference alone. Likewise, a preference cannot be dismissed in advance as “coaching” merely because it does not suit the adults.
| The child’s statement | Issue to be investigated | Conclusion that cannot be drawn on its own |
|---|---|---|
| “I don’t want to change my school.” | Continuity of education, transport, care plan | That the existing custody arrangement will not change under any conditions |
| “I want to stay with my mom/dad.” | Reasons for the preference, its consistency and freedom | That the preference automatically becomes the judgment |
| “I’m afraid to go to the visit.” | Source of the fear, safety and expert assessment | That there is certainly violence or certainly coaching |
| “I want to live with both of them.” | Preserving the relationships and a workable living arrangement | That joint custody will automatically be established |
| “I don’t want to talk.” | Interview conditions, tiredness and communication needs | That the child rejects a parent |
The statements in the table are examples; they are not the account of a real file or child. The assessment must be made on the basis of the child’s own words and life context.
Is the child heard by the judge or by an expert?
The court’s learning the child’s views and the experts’ interview with the child within the social investigation are connected but not identical acts. An expert interview helps in assessing development, family relationships and living conditions. The judge conducts the proceedings and decides on custody.
The conditions of the file, and the scope and currency of the earlier interview, matter. That a social investigation report contains a few sentences about the child does not show, in every case, that the child’s views were adequately obtained. By contrast, interviewing the child again and again should not be requested merely so that the procedures appear complete. What the remaining gap is and why a new interview is necessary must be explained.
Which points matter in the interview setting?
It is important that the child is not left in the middle of the conflict between adults, is informed in understandable language and can speak without feeling under pressure. The effect of the parents’ presence in the same setting on the child’s account must be assessed concretely. The decision on the method and participants of the interview is made taking into account the child’s needs and the conditions of the proceedings.
The child should not be given an unlimited promise that everything said will in all circumstances be kept secret from the parents. The information to be used in the proceedings, access to the file and the protection of the child are assessed together. Procedural measures to prevent the unnecessary spread of sensitive information may be requested from the court according to the needs of the file.
How does the Court of Cassation approach obtaining the child’s current views?
In the decision of the Civil General Assembly of the Court of Cassation dated 17.01.2019, E.2017/2066, K.2019/15, the child’s advancing age during the continuation of the proceedings and reaching a stage at which the child could express views were significant. The Assembly pointed to a deficiency in the examination that called for obtaining the current view on custody. The decision does not say that, if the child chooses a particular parent, custody must necessarily be given to that parent. [3]
The file history of the decision also contains earlier assessments and a dissenting opinion. The main conclusion that can be drawn is that, in line with the reasoning of the majority decision, the child’s current situation and right to be heard must be assessed. The age of a child in the decision cannot be turned into a fixed threshold applicable to all cases.
In a long-running case, is an earlier view sufficient?
If the child’s age, school, care arrangement or relationship with the parents has changed, an old interview may not fully reflect the current situation. A request for a new examination should not be limited to saying “the report is old.” What change has taken place in the intervening time and its effect on the decision must be explained.
For example, if a school change has occurred since the previous report, the new adjustment may be investigated; if communication with a parent who had not been seen for a long time has resumed, the nature of the relationship may be investigated. These examples do not create an automatic obligation of a new interview. The aim is to reach the current information needed for the decision without tiring the child unnecessarily.
How should a parent prepare the child for the interview?
Preparation does not mean teaching the child sentences to say. A healthier approach is to explain the purpose of the interview in a way suited to the child’s age, to say that the child may tell the truth in his or her own words, and to make the child feel that he or she is not responsible for the feelings of the mother or father.
Having the child rehearse the account, shaping a preference through rewards or feelings of guilt, or asking for details after the interview as if interrogating the child can make the assessment more difficult. A parent’s need to present evidence does not justify recording the child continuously or collecting documents against the other parent. The lawfulness of the evidence is examined separately.
How should a claim of coaching be raised?
Instead of a general statement such as “the child is being coached,” the concrete events and dates giving rise to the claim should be stated. The child’s language, earlier statements and family relationships can be assessed together by experts. However, disagreeing with a parent’s view or wishing to live with the other parent does not, on its own, prove that the child has been coached.
If there is an account of fear or ill-treatment, the safety dimension must be investigated separately. Treating the events the child describes as worthless from the outset on the basis of the possibility of coaching can prevent a sound examination. These two possibilities should not be treated as assumptions that automatically exclude each other.
What requests may be considered if the child’s views were not obtained?
A request can be submitted to the file explaining why the child’s views are needed, in what respect the earlier interview was deficient and what the current conditions are. A hearing by an appropriate method, completion of the expert examination or resolution of contradictions may be requested. The failure to obtain the child’s views does not lead to the same procedural result in every file; the reasoning and the examination as a whole matter.
If a decision has been given, raising this deficiency on appeal is assessed within the conditions of suitability for appeal and the time limits. Where there is a current risk concerning the protection of the child, a request for an appropriate interim measure should also be considered without waiting only for the final decision. The route of application is determined by the type of decision at hand and the stage of the proceedings.
Conclusion
In a custody lawsuit, the child’s voice must be heard; but the responsibility for the decision must not be left to the child. Age, maturity, the conditions under which the view was formed, care and safety are assessed together. The real question in the file is not limited to “Whom did the child choose?”; it is what the child’s view tells us and which living arrangement protects the child’s best interests.
You can read how the interview is reflected in the report in the article on the social investigation report, the records supporting the account in evidence in a custody lawsuit, and the special assessment of a refusal to meet in a child’s rejection of the other parent.
Related articles: Is Custody of the Child Given to the Mother or the Father? Age, Care Arrangement and the Parents’ Circumstances; Custody Lawsuit: Custody of the Child, Court Criteria and the Litigation Process.
Frequently Asked Questions
Can a child choose custody once the child turns 12?
No. There is no automatic power of choice tied to age twelve. The child’s views, given weight in accordance with the child’s age and maturity, are assessed together with safety and care conditions.
When the child wants the father, is custody necessarily given to the father?
No. The reasons for the preference and whether it was formed freely are investigated. The court decides according to the child’s best interests, assessing the file as a whole.
If the child does not want to talk, is an adverse inference drawn?
Not wanting to talk does not on its own lead to a definitive result for or against a particular parent. The interview conditions and the child’s needs must be assessed.
Does a child who has spoken with an expert need to be heard again by the court?
No single answer can be given for every file. The scope and currency of the earlier interview, the child’s development and the matters on which the decision will be based are taken into account; avoiding unnecessary repetition is also important.
Is it right to teach the child what to say to the judge?
No. The child must be able to freely tell his or her own experience and thoughts. The parent’s role is to give the basic information about the interview and to protect the child from the burden of the dispute between adults.
Sources
- Law No. 4721, the Turkish Civil Code, in particular Arts. 182, 183, 339, 346. Official legislation record.
- United Nations Convention on the Rights of the Child, in particular Arts. 3, 12 and 16. UNICEF Turkish text.
- Civil General Assembly of the Court of Cassation, 17.01.2019, E.2017/2066, K.2019/15. Obtaining the child’s current view; the majority reasoning is taken as the basis. Full decision record — De Jure.
- Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts, Arts. 5–6. Ministry of Justice text.