Custody Proceedings, Evidence and Legal Remedies

The Initial Legal Assessment in a Custody Dispute

The method to be followed in a custody case is not determined solely by whether the parties are divorced. A pending divorce or separation case, previous custody and personal contact decisions, with whom the child actually lives, the need for urgent protection, the parties’ places of residence and any foreign-country connection must be examined together.

The following points in particular are addressed in the initial legal assessment:

The content of any existing custody, interim custody or personal contact decision
Who has provided the child’s actual care, since when and under what conditions
The child’s age, level of development, health and special needs
Continuity of school, education, social environment and relationships with siblings
The need for urgent protection, interim custody or restriction of personal contact
Whether obtaining the child’s views is appropriate in terms of the child’s age and maturity
Problems concerning implementation of the personal contact decision or handover of the child
Child maintenance (iştirak nafakası) and education, health and other child expenses
The risk of the child being taken to, or not brought back from, another city or country
Whether there is a conflict of interest concerning the child’s assets, management and representation that requires a curator
In a foreign-country connection, the applicability of the 1980 or 1996 Hague Convention to the specific case and the states concerned
The competent court with subject-matter and territorial jurisdiction, the applicable law, service of documents and the state of legal remedies

Custody and personal contact decisions are directly linked to the protection of the child. Although agreement between the parties is important, it does not remove the court’s review as to the child’s best interests.

Evidence, the Social Investigation Report and the Child’s Privacy

In custody files, the purpose of evidence is not to enlarge the private-life dispute between the parents, but to show the effect of the alleged fact on the child. Evidence must be obtained lawfully, linked to the relevant fact and submitted to the file only to the extent that it does not unnecessarily harm the child’s privacy.

Depending on the circumstances of the specific case, the following may be examined: population and residence records, previous court and interim-measure decisions, school and health records, documents showing the care arrangement, witness statements, the social investigation (sosyal inceleme) report, law enforcement and social services records, child handover minutes, protection orders and lawfully obtained communication records.

The social investigation report is an important assessment tool; however, it is not a provision that by itself binds the court. The scope of the interviews, factual errors, whether the report is up to date, the method by which the child’s views were obtained and the report’s consistency with the other evidence may be examined. If there are deficiencies or contradictions, an additional investigation or a new social investigation may be requested.

Secret audio or video recordings, unauthorized access to another person’s account or device, unlawful acquisition of private correspondence and use of personal data beyond its purpose may separately give rise to civil and criminal liability. Before a digital record is submitted, the manner in which it was obtained, its integrity and whether it can be relied upon in the judgment must be assessed.

Family court proceedings are not automatically confidential in their entirety. If there are statutory conditions requiring the protection of the private life of the child or the parties, a request may be made for the hearing to be held wholly or partly in closed session. Health, school, psychological assessment and personal data should be submitted to the file only to the extent necessary to resolve the dispute.

The Competent Court, Proceedings and Legal Remedies

In disputes concerning custody and personal contact with the child, the competent court is in principle the family court. In places where there is no family court, the case is heard by the civil court of first instance acting as a family court.

The court with territorial jurisdiction may vary according to whether the request is raised within a divorce or separation case, whether an independent action to modify custody is filed, the place of residence of the parties and the child, the need for protection and any foreign-country connection. Before applying, subject-matter jurisdiction, territorial jurisdiction and, if applicable, international jurisdiction must each be examined.

Depending on the nature of the file, the process may consist of the following stages: assessing existing decisions and the need for an urgent measure, the petition and the response, interim measures, collection of evidence, the social investigation, obtaining the child’s views by an appropriate method, the hearing, the judgment, legal remedies and implementation. There is no fixed time to conclusion valid for every file; the court’s workload, service of documents, the social investigation, institutional records and legal remedies may affect the duration.

The court may order a party to be heard in person, to attend a social investigation interview or to make a statement on a particular matter. For this reason, whether attendance at the hearing and other procedures is required must be assessed for the specific file.

When a Petition or a Decision Is Served

Keep the service envelope, the electronic service record, the whole decision and its attachments. The need for a response, evidence, objection and legal remedy is assessed together with the type of the act and the legally valid date of service. There is no single time limit for every custody procedure. Waiting for a reply from the firm does not stop time limits.

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Legal basis

Depending on the nature of the claim, the Turkish Civil Code and the relevant provisions on procedure, protection and private international law apply together.

This content is general information. It does not replace a review of the specific file. Submitting an inquiry alone does not create an attorney–client relationship and does not stop statutory time limits.