In an uncontested divorce, the mother and father may propose an arrangement on the custody of the child and the child's relationship with the other parent. However, the signed protocol alone is not sufficient. The judge hears the parties in person and assesses whether their consent has been freely given and whether the arrangement concerning the children is appropriate. If the best interests of the child require it, the judge may propose a change; for an uncontested divorce, the parties must accept this change. [1]
A well-prepared arrangement for the child does not consist merely of the sentence "custody to the mother" or "custody to the father." The living arrangement of the child, the schedule of personal contact, handovers, holidays, expenses and the sharing of information must be addressed in a workable way. This article does not examine the entire divorce protocol, but the provisions of the protocol concerning the child.
Basic requirements of an uncontested divorce with respect to children
Under Article 166/3 of the Turkish Civil Code (TMK), the marriage must have lasted at least one year, the spouses must apply together or one must accept the other's action, the judge must hear the parties in person, and the judge must find the necessary arrangements appropriate. The attendance of only the parties' lawyers at the hearing cannot be treated as replacing the requirement of a personal hearing. [1]
An agreement on the child's situation is reviewed not only for the parties' free will but also for the best interests of the child. Even if both parents request it, a provision that endangers the child's safety or removes the relationship with the other parent without reason should not be expected to be accepted.
The financial consequences of the divorce are also a separate element of an uncontested divorce. However, no generalization should be made that the liquidation of the matrimonial property regime between the spouses must be completed in all its details in every file. The provisions concerning the child and the arrangements on the spouses' assets and receivables should be examined as different legal headings.
What should be clear in the custody section of the protocol?
The identity of the child and which arrangement is made for which child should leave no room for doubt. If there is more than one child, the situation of each is assessed. The same text should not be applied to all children without reviewing sibling bonds and educational and special care needs.
Who is to have custody and the arrangement under which the child will live should be consistent. If joint custody is proposed, in addition to the decision-making arrangement, the child's actual place of residence and the time to be spent with the other parent must be explained. The phrase "joint custody" does not by itself resolve all practical problems.
| Subject | Point to be clarified in the protocol | Problem that uncertainty may cause |
|---|---|---|
| Custody | The proposed arrangement for each child | Confusion among children and responsibilities |
| Regular personal contact | Day, start and end time, overnight stays | Need to agree anew before every visit |
| Religious holidays and vacations | Order by year, durations and precedence over the regular schedule | Overlapping contact provisions |
| Handover and transport | Pick-up, drop-off, place and responsibility for transport | New conflict in practice |
| Expenses | Maintenance, payment date and scope of other expenses | The same expense being claimed twice or not being covered |
| Health and education information | Channel of information and emergency contact | Delay in receiving important information |
This table is not a ready-made contract to be applied to all families. It must be adapted in line with the child's age, the parents' places of residence and safety conditions. It should also be checked that the final version of the protocol and the text accepted at the hearing are the same.
How is the personal contact schedule arranged?
Regular weeks and overnight stays
Phrases such as "the father sees the child whenever he wishes" or "the mother hands the child over when she finds it suitable" do not take the place of a workable basic schedule. When a conflict arises, it must be known which day and time will be taken as the basis. The fact that the parties may arrange additional contact by mutual agreement does not require the basic arrangement to be left uncertain.
As an example, for a school-age child, certain weekends could be arranged with start and end times. However, it cannot be said that a model such as the first and third weekend of each month suits all children. An infant's care needs, a long journey, health matters or re-establishing a bond with a parent may require a different plan.
Holidays and overlapping days
The mid-year break, summer vacation, religious holidays and special days should be considered separately. If the same day falls into both the regular weekend and the holiday arrangement, it must be stated which provision applies. Alternating between odd and even years may be considered; the method chosen must be clear and calculable.
If the start and end of a vacation are left merely as "when school closes," differences in the school calendar may cause problems. The date, time, method of notification and, if necessary, travel information should be made concrete. The child's camp, exams, treatment and other regular needs should also be taken into account.
Telephone and video calls
Remote communication may be arranged as a complement to face-to-face contact. A time suited to the child's age and to sleep and school hours should be chosen. A communication model cannot be set up for constantly calling, monitoring the child or watching the private life of the other parent.
The child's capacity to use technical devices and the need for help during the call should also be taken into account. Setting a direct and appropriate channel for communication between the parents, rather than conducting it through the child, prevents the child from becoming a messenger.
Handover, transport and safety provisions
Who will pick up and drop off the child, and the place and time, should be specified. If there is a distance between cities, the burden of the journey on the child, accompaniment and transport costs should be considered. It should not be assumed that additional visits that are permitted change an existing court decision; where no agreement can be reached, the decision is taken as the basis.
In families with violence or serious conflict, a simple handover arrangement such as "the parents meet at the door" may not be safe. An appropriate protection and handover mechanism is assessed separately. For the enforcement of child handover and personal contact decisions, the current system operated through the judicial support and victim services directorates should be taken into account. [4]
Instead of writing the consequences of failing to comply with the decision into the protocol as disproportionate penalties or an automatic transfer of custody, the remedies in the law should be taken as the basis. A change of custody requires the court's assessment; it does not occur automatically through one parent's unilateral notice.
How should maintenance and child expenses be handled?
Child maintenance (iştirak nafakası) is linked to the child's needs and to the parents' living conditions and ability to pay. In addition to the amount, it is important that the start date, payment day and method, and any increase arrangement, are clear. If it is agreed that school, health and extraordinary expenses are to be shared separately, their relationship with the maintenance must be explained. [1]
In statements with an unclear limit, such as "all private school expenses will be paid," the choice of school, the scope of expenses and the provision of information may create a new dispute. Conversely, making the payment of urgent health expenses subject to the other parent's prior approval each time may impede the child's needs. Ordinary expenditures must be separated from urgent and necessary expenses.
Provisions that convert the child's future right to care into consideration for other financial concessions between the spouses should be avoided. The fact that no maintenance was requested in the protocol does not mean that the child's changing needs can never be asserted in the future. The provisions concerning the child remain open to reassessment when the conditions arise.
Is joint custody accepted once it is written into the protocol?
A joint custody proposal is subject to the court's review of the child's best interests. It is important that the parents can act together on important decisions, agree on the place of care and do not expose the child to constant conflict. How decisions on education, health and daily care will be made must be explained.
In the decision of the Court of Cassation 2nd Civil Chamber (Yargıtay 2. Hukuk Dairesi) dated 27.03.2025, E.2024/5611, K.2025/3196, the parents had requested joint custody. The fact that they lived in different cities, that they could not agree on where the child would stay and that there was constant conflict between them were assessed together; the arrangement was not found to be in the child's best interests. [3]
This decision shows that a joint request in the protocol does not replace cooperation in practice. Living in the same city is also not sufficient on its own. How the proposed model will work in the child's life must be demonstrated. Joint custody likewise does not mean that maintenance is necessarily reduced to zero or that equal time is spent in two homes.
What happens if the judge changes the protocol?
The judge may propose the necessary changes, taking into account the interests of the parties and the children. For a decision on an uncontested divorce to be given under TMK Article 166/3, the change must be accepted by the parties. A problem with a single provision of the protocol should not be overcome on the assumption that the change has been accepted by the parties. [1]
In the decision of the Court of Cassation Civil General Assembly (Yargıtay Hukuk Genel Kurulu) dated 18.04.2019, E.2017/2650, K.2019/485, the change to the personal contact arrangement and the parties' will concerning it were examined. The importance of obtaining express acceptance for a change made by the judge, and of the agreement being included in the judgment in an enforceable form, was emphasized. [2]
This decision shows that not every change proposed by the judge can be regarded as automatically accepted by the parents. If the change is not accepted, whether the conditions for an uncontested divorce exist is reassessed; as regards the contested continuation of the proceedings, the parties' rights to make claims, defend themselves and submit evidence must be observed. The approach that "the protocol has been signed and nothing can be changed now" is not correct.
Which protocol provisions should be reviewed with particular care?
- Provisions that completely remove the other parent's relationship with the child without justification.
- Provisions stating that custody will change automatically on remarriage or a single delay.
- Statements that give the impression of a definitive waiver of all of the child's future maintenance and care claims.
- Provisions that regulate unlimited permission to settle abroad without examining travel and the other parent's rights.
- Provisions that subject health and education decisions to mutual veto conditions that effectively make the custody model unworkable.
It is not possible to resolve these matters with a single standard paragraph. For example, permission to travel and the child's settlement in another country may have different legal consequences. The protocol does not by itself remove the problems that may arise under the law of the country concerned and under international conventions.
What should be checked after the hearing and the decision?
Before the hearing, the parties must read and understand the same version of the protocol. If the judge proposed a change, not only the oral statement but also the record and the judgment should be checked. The days and hours of personal contact and the details of child expenses must appear in the decision in an enforceable form.
The issuance of the decision and its becoming final are not the same stage. Service, the appeal route and the finality status should be monitored from the file. During this time, how the current interim arrangement will continue is also checked. If the child's needs change significantly after the decision, the existence of the protocol does not bar a request for a new arrangement from the outset.
Conclusion
The value of the provisions concerning children in an uncontested divorce depends not only on their having been signed but also on their being workable in daily life. Custody, personal contact, handover and expenses should be drafted consistently with one another; the judge's review of the child's best interests and the parties' acceptance of changes must be observed. For the care arrangement during the case, see the article on temporary custody, and for the basic criteria, the custody action guide.
Related articles: Maintenance in an Uncontested Divorce: Waiver, Increase Clause and Later Amendment of the Protocol; Child Maintenance: Child's Expenses, Private School Fees and the Parents' Contribution; Action to Change Custody: Conditions, Evidence and New Living Circumstances.
Frequently Asked Questions
If the mother and father agree, must the judge approve custody exactly as agreed?
No. The judge separately examines the child's best interests. For an uncontested divorce, it is important that the parties accept any change the judge considers necessary.
Should the hours of contact with the child be written into the protocol?
There should be a workable basic schedule. If days and hours are left uncertain, handover and contact problems may arise when the agreement breaks down.
Can custody be changed after an uncontested divorce?
If there are new circumstances affecting the child's best interests, a request for change can be assessed. The fact that the first decision was given by agreement does not make the arrangement concerning the child unchangeable forever.
Is maintenance not paid under joint custody?
There is no such general rule. The child's actual care arrangement, expenses and the parents' ability to pay are assessed separately.
If the protocol is notarized, does the court's review fall away?
No. A notarial act does not replace the judicial review required for an uncontested divorce or the personal hearing of the parties by the judge.
Sources
- Law No. 4721, Turkish Civil Code, especially Articles 166/3, 182–184, 323–324, 330–331, 336 and 349. Ministry of Justice legislation record.
- Court of Cassation Civil General Assembly, 18.04.2019, E.2017/2650, K.2019/485. Text of the decision.
- Court of Cassation 2nd Civil Chamber, 27.03.2025, E.2024/5611, K.2025/3196. Text of the decision.
- Ministry of Justice, Frequently Asked Questions on the Process of Child Handover and Establishing Personal Contact with the Child, 03.02.2025. Official statement.