Determination and Modification of Custody

The Basic Criterion in a Custody Case: The Best Interests of the Child

Custody is not a tool for rewarding one parent or punishing the other. The purpose of the assessment is to appropriately protect the child’s safety, development, continuity of care and stable living arrangement. Fault in the divorce, economic strength, the parent’s gender or the mere fact that the child is of a young age does not by itself determine custody.

Depending on the circumstances of the specific case, the court may assess in particular the following factors:

The child’s physical and emotional safety
The existing care arrangement and the continuity of care
The child’s age, development, health and special needs
The education arrangement, school attendance and social environment
Relationships with the parents, siblings and close circle
The mother’s and father’s capacity to fulfill their responsibilities of care, supervision and representation
Each parent’s attitude toward supporting the child’s healthy relationship with the other parent
Allegations of violence, neglect, abuse, addiction or serious conflict affecting the child
The short-term and long-term effects of a change in the child’s living arrangement
The child’s freely expressed views, consistent with the child’s age and maturity
The social investigation (sosyal inceleme) report, expert assessments and other lawful evidence

The judge may order the investigations required by the child’s best interests; may obtain the records of the relevant institutions, have a social investigation conducted and consider any interim or protective measures the judge deems necessary. Current developments in the child’s life or in the parties’ circumstances during the proceedings may also be taken into account.

It is important that the views of a child whose age and maturity permit are obtained by an appropriate and safe method. However, the child must not be forced to choose between the mother and the father, and must not be made the decision-maker in the dispute between the parents. The views expressed are examined together with the other evidence as to whether they were formed freely, whether there was any steering, and whether they are consistent with the child’s overall interests.

Just as there is no rule that automatically favors the mother or the father solely because of gender, high income is also not by itself sufficient for custody to be granted. Caregiving ability, safety, continuity, parental responsibilities and the capacity to preserve the child’s relationship with the other parent are assessed together.

Custody During Marriage, Interim Custody, Custody After Divorce and Joint Custody

Custody While the Marriage Continues

As long as the marriage continues, custody is in principle exercised jointly by the mother and the father. If the marital union ends, the spouses live apart or a situation arises that requires the protection of the child, the judge may decide with whom the child will stay, on care and education expenses, on personal contact and on other necessary measures.

Interim Custody and Temporary Arrangements

While a divorce or separation case is pending, the child’s temporary living and care arrangement should not be left uncertain. During the case, the court may leave interim custody with one of the parents; it may regulate personal contact with the other parent and interim child maintenance for the child. An interim custody order is not a final custody judgment. If circumstances change or a new risk arises, a re-evaluation of the temporary arrangement may be requested.

Custody After Divorce

Together with the divorce decree, the court regulates which parent will exercise custody, the personal contact to be established between the child and the parent who does not exercise custody, and the contribution to the child’s expenses. A custody decision is not unchangeable. If a significant and lasting change affecting the child’s interests occurs, an action to modify custody may arise.

Custody of a Child Born Outside Marriage

Under Article 337 of the Turkish Civil Code, if the mother and father are not married, custody in principle belongs to the mother. If the mother is a minor, is under guardianship or has died, or if custody is taken away from her, the judge, according to the child’s interests, appoints a guardian or grants custody to the father. A foreign element, a later marriage and existing decisions are assessed separately.

Joint Custody

Joint custody means that, after divorce, the mother and the father jointly exercise the important responsibilities and decisions concerning the child. Joint custody is assessed not merely on the parties’ request or agreement, but taking into account the child’s best interests, the parents’ capacity for communication and cooperation, whether the arrangement is workable, the child’s living arrangement, and whether there is domestic violence or serious conflict.

Under a joint custody arrangement, the child’s primary residence, daily care arrangement, education and health decisions, the weekday and holiday schedule, travel, ordinary and extraordinary expenses, information sharing and the method to be followed in case of disagreement must be set out clearly and in a workable manner. The fact that the parties have agreed on joint custody does not remove the court’s review as to the child’s best interests.

Modification of Custody and Removal of Custody

In an action to modify custody, the facts that arose after the previous decision, or that were later found to affect the child’s interests, must be set out concretely. Not every dispute between the parents is a ground for modification. The effect of the alleged circumstance on the child’s safety, development, care or relationship with the other parent is examined.

A modification of custody may arise in particular in the following situations:

Continuing failure to perform custodial duties
Neglect of the child’s care, education or health needs
Violence, threats or abuse directed at the child or the other parent
Addiction affecting the child’s care and safety
The child actually living with the other parent for a long time
A change of residence seriously affecting education, social environment or personal contact
Continuous obstruction of personal contact without a justified reason
Support, with concrete facts, for the allegation that the child is being steered against the other parent
Death or placement under guardianship of the custodial parent, or that parent’s inability to perform the duty
A significant change in the child’s needs depending on age and development

The remarriage, relocation to another city, illness, disability, arrest or conviction of the parent who exercises custody does not by itself result in the modification or removal of custody. The concrete effect of these circumstances on the child’s daily care, safety, education, representation and stable living arrangement is examined.

Taking custody away from one parent and giving it to the other is not the same legal act as removing it from both the mother and the father. Removal of custody is a measure of last resort; whether the child can be protected with more proportionate measures is investigated. Where custody is removed from both parents, the appointment of a guardian and child protection measures may also arise separately.

The filing of the case does not by itself change the custody or personal contact decision in force. If there is a current and serious risk that makes it inadvisable for the child to remain in the existing arrangement, a modification of interim custody or of the personal contact arrangement must be requested separately.

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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.