In a custody lawsuit, the court assesses under which arrangement the child’s care, safety, education and development will be better protected. A parent’s higher income, the wish to divorce or being faultless as a spouse does not, on its own, determine the outcome. The child’s best interests are made concrete by weighing current living conditions, actual care, expert examination and the views of a child who has reached sufficient maturity.
In which file the custody request will be raised depends on the family’s legal situation. The first arrangement in a pending divorce action, protection sought while living apart without divorce, and the modification of a final decision do not raise the same procedural question. This guide mainly explains the first custody decision in Türkiye and the preparation of the application.
What is custody and what responsibilities does it cover?
Custody (velayet) is the whole of the rights and obligations that cover the child’s care and education together with the child’s protection, legal representation and the management of the child’s property within legal limits. It is regulated in Articles 335 et seq. of the Turkish Civil Code (TMK). The child living with a parent is an important part of this arrangement, but it does not explain custody as a whole. The scope of the decision also matters for school, health and representation matters. [1]
While the marriage continues, the mother and father exercise custody together. Merely starting to live at different addresses does not automatically transfer custody to one parent. If the shared household is ended or the spouses separate, the judge may make the necessary arrangement. If the mother and father are not married, the rule and exceptions in TMK Art. 337 are assessed separately; establishing paternity alone does not create a division of custody similar to that after divorce.
For a minor child, custody must also be distinguished from guardianship (vesayet). In situations such as the removal of custody from both parents, the appointment of a guardian may come into question. Although reaching the age of majority ends custody as a rule, TMK Art. 335/2 contains a special provision for adult children placed under restriction. It therefore cannot be said that “the same result occurs in every case for everyone who turns 18.”
The difference between custody, personal contact and maintenance
The personal contact of the parent to whom custody is not given with the child, and that parent’s contribution to the child’s expenses, are separate matters. The contact arrangement, unlike the question of who bears responsibility for care, preserves the child’s bond with the other parent. Maintenance, in turn, is assessed in light of needs and the ability to pay. Non-payment does not allow contact to be cut off automatically, and the obstruction of contact does not allow maintenance to stop automatically. [1, 4]
Which route is considered in which situation?
| The family’s situation | Legal route to consider | Main purpose |
|---|---|---|
| A divorce or separation action is pending | Interim measures under TMK Art. 169 in the same file; custody arrangement in the judgment | Establishing the child’s arrangement during and after the action |
| The marriage continues, the spouses live apart | Necessary measures under TMK Art. 197 and Art. 336 | Resolving the care and contact problem without filing for divorce |
| An uncontested divorce is sought | Judicial review of the child provisions under TMK Art. 166/3 | Ruling on a workable arrangement suited to the child |
| A final custody decision exists and circumstances have changed | Modification request under TMK Art. 183 and related provisions | Adapting the decision to the effect of the new circumstances on the child |
| The child’s development is in serious danger | Protective measures; removal of custody if the conditions are met | Protecting the child from a concrete danger |
The names of these routes should not be used interchangeably. For example, while a change of custody may concern a transfer to the other parent, removal is a heavier and different protective intervention subject to different conditions. The events described, the existing decision and the legal result sought matter as much as the title of the petition.
Competent court and venue
In family-law disputes concerning custody, the court with subject-matter jurisdiction is the family court. Where there is no family court, the civil court of first instance designated to perform that function acts. The basis for using experts is Law No. 4787. [3]
For custody examined together with the divorce action, the venue rule of divorce is taken into account: TMK Art. 168 provides for the court of the place of residence of one of the spouses, or of the place where they last lived together for at least six months before the action. For an independent protection or modification request, the same formula is not applied automatically; the effect of TMK Art. 201 and the HMK provisions on non-contentious jurisdiction on the specific request is examined separately. For children living abroad, international jurisdiction and conventions must also be considered. [1, 2]
Custody itself cannot be treated like an ordinary receivable that the parties may dispose of freely. An agreement of the parents is valuable, but it does not remove the court’s review in the child’s interest. For this reason, mandatory mediation should not be presented as a general precondition for a custody request.
How does the court assess the child’s best interests?
A statement such as “I love my child more” is not enough to show how care will be continued. The judge needs data that allow a comparison between the life the child lives and the proposed new arrangement. The child’s physical safety, mental development, education and bonds are assessed together.
Actual care and continuity of life
Who takes the child to school, who follows health check-ups, how daily care is shared and the parents’ working hours matter. Continuity is not merely staying in the same home. The child’s relationship with the teacher, the treatment schedule, siblings and the people with whom the child feels safe are also part of this assessment.
Preserving the existing arrangement may not be right in every situation. Continuing an unsafe environment cannot be defended merely out of habit. Likewise, the fact that a child was recently removed by one parent from the other does not create a new legal right. How the present situation came about is investigated.
Income, work and support network
A higher income does not, by itself, mean better parenting. On the other hand, housing, care costs and the work schedule are of course important. What the court will assess is, besides the income figure, how that capacity is reflected in the child’s daily life. The support of relatives or a caregiver is also considered together with the nature of that support and whether the parent continues to bear responsibility.
For example, a parent working shifts can show a care plan for workdays and a reliable support arrangement. A parent who does not work can explain actual care, housing conditions and how the child’s expenses will be met. No work model can be accepted in advance as superior for all families.
Safety, sibling bond and relationship with the other parent
Allegations of violence, abuse and neglect are examined seriously for their effects on the child. A health diagnosis, a disability or undergoing treatment is not, by itself, a label that removes parenthood. Concrete care capacity and the support that can be provided must be assessed. If there is a safety risk, measures such as supervised or restricted contact may be considered separately.
The bond between siblings is also taken into account; each child’s need is examined separately. While supporting a safe relationship with the other parent is important, the attitude of a parent who reports a real risk of violence should not be read negatively merely by saying “does not cooperate.”
The child’s views and the social investigation report
The weight of the child’s views is assessed together with the child’s age and maturity. The statute does not set a fixed threshold for all children such as “the right to choose arises at this age.” Giving the child the opportunity to express their thoughts without being under pressure is different from leaving the burden of the decision to the child. [1, 5]
A social investigation (sosyal inceleme) helps to assess the family environment and care relationships. What matters is how current the information used in the report is, whether the circumstances of both parents were examined and on which observations the conclusions rest. The judge assesses the report together with the other evidence; an expert opinion does not decide in place of the court.
An objection to the report should not be limited to saying that one is unhappy with the result. For example, the home after a move not having been seen, working hours being recorded incorrectly or the child’s treatment not having been assessed can be made specific. Depending on the nature of the deficiency, an explanation, an additional examination or an updated report may be requested.
Why does the Court of Cassation require current conditions to be investigated?
In the decision of the 2nd Civil Chamber of the Court of Cassation (Yargıtay 2. Hukuk Dairesi) dated 13.03.2025, E.2024/7439, K.2025/2682, the time gap between the earlier social investigation and the conditions at the time of the decision was significant. Taking into account the change in the children’s level of development, the Chamber concluded that a current examination and an assessment of their views were necessary. [5]
This decision does not say that a particular age automatically changes custody. The real result is that a report prepared years ago is not accepted as sufficient without investigating the new conditions. However accurate the information submitted to the file, it may need to be renewed if it no longer explains the child’s life today.
Is joint custody suitable for every family?
Joint custody brings into play making important decisions about the child together even after divorce. Its being considered possible in practice does not mean that it will necessarily be accepted whenever both parents want it. Where the child will live, the school arrangement, transport and the parents’ decision-making relationship must be made specific.
In the decision of the 2nd Civil Chamber of the Court of Cassation dated 27.03.2025, E.2024/5611, K.2025/3196, the parties had requested joint custody. Nevertheless, the fact that they lived in different cities, could not agree on where the child would stay and the continuing conflict were assessed together; the joint custody arrangement was not found appropriate and a new examination was ordered. [6]
It cannot be concluded from the decision that “people living in different cities can never exercise joint custody.” In the specific case, the difference of cities was accompanied by disagreement over the place of care and an ongoing conflict. Joint custody also does not mean mathematically dividing the child’s time into two equal parts.
How are the preparation of the case and the evidence organized?
The center of the preparation should be the dates of events and their effect on the child. Unrelated spousal quarrels filling the file can make the problem of daily care invisible. Coming to the first meeting with the existing decisions, information from the divorce file if any, and documents explaining the child’s current life makes the assessment easier.
| Situation to be proved | Data that may be useful | Limit to observe |
|---|---|---|
| Continuation of daily care | School communication, appointment records, a witness with direct observation | A money transfer alone does not show the whole of care |
| Health or safety need | Relevant health documents, protection orders, incident records | An allegation must be distinguished from a final finding |
| Work and housing plan | Working hours, housing information, care support | Unrealistic promises about the future should be avoided |
| Disruption of contact | Dated correspondence and handover records | The reason for a single incident and its effect on the child must be investigated |
The lawfulness of obtaining evidence also matters. Entering another person’s account without permission or systematically monitoring their private life is not legitimized by the justification of “collecting evidence for custody.” HMK Art. 189/2 prohibits the assessment of unlawfully obtained evidence. The child’s private information should also not be distributed to unnecessary persons. [2]
The litigation process and enforcement of the decision
After the application, the parties’ statements are taken; the necessary records, witness statements and expert assessments are gathered. If there is an urgent need, an interim arrangement may be made without waiting for the final decision on the merits. The details of this arrangement are covered in the article on interim custody.
No fixed period can be given for how many months the file will take. Service of notices, expert examination, the parents being in different places and the appeal process affect the duration. Court fees, advance on costs, notification and examination costs, and attorney’s fees are distinct from one another. The current amount should be calculated according to the type of application and the needs of the file; legal aid is considered for those whose economic conditions are not favorable.
The final decision, the interim arrangement and the finalization of the decision must be distinguished from one another. For the enforcement of final family-law decisions the rules on finality matter; for interim measures, the nature of the decision matters. It should not be assumed that every interim decision has an independent appeal (istinaf) or cassation (temyiz) route. The appeal route, service and time limit must be checked on the file. [2]
When a decision on delivery of the child or personal contact is not complied with, the current practice is carried out through judicial support and victim services directorates; where these units do not exist, the units designated by the Ministry act. The description “taking the child with an enforcement officer” in older content should not be used in place of the current system. Taking the child by force on one’s own should not be resorted to. [4]
Conclusion
Preparing for the first custody decision requires clearly showing how the child lives today and how the proposed arrangement will work tomorrow. The correct route of application, current evidence, taking the child’s views in an appropriate way and a workable care plan must be assessed together. The articles on the comparison of the parents’ conditions and the uncontested divorce protocol elaborate on the related topics of this guide.
Related articles: Action for Modification of Custody: Conditions, Evidence and New Living Conditions; Evidence in a Custody Lawsuit: Witnesses, School and Health Records, Messages and Social Media; What Happens to Maintenance When Custody Changes? The Child’s Actual Care, New Maintenance and Past Debts.
Frequently Asked Questions
Can the father get custody?
Yes. The court assesses the father’s request within the framework of the child’s interests and care conditions. There is no requirement valid for all files, such as having to show that the mother is necessarily “at fault.”
Is it mandatory to file for divorce for custody?
It is not mandatory in every case. If the spouses live apart, measures concerning the child may be considered under TMK Art. 197 and Art. 336. The modification of an existing decision may also be the subject of a separate application.
If the child chooses the mother or the father, does the court follow that?
The child’s views are given weight appropriate to age and maturity; however, the preference alone does not determine the outcome. The court also examines the possibility of pressure and whether the preferred arrangement suits the child’s interests.
Is the person who obtains interim custody considered to have won the case as well?
No. The interim decision meets the need for care while the proceedings continue. The final decision is given on the basis of the evidence gathered and current conditions.
Can a custody decision change later?
If the circumstances affecting the child’s interests change, a new arrangement may be requested. However, repeating the same allegations is not the same as presenting new and significant facts in the child’s life.
Sources
- Law No. 4721, the Turkish Civil Code, in particular Arts. 166, 168–169, 182–183, 197, 201, 323–324 and 335–351. Ministry of Justice legislation record.
- Law No. 6100, the Code of Civil Procedure, in particular Arts. 189, 334 et seq., 350, 367, 382 et seq. Ministry of Justice legislation record.
- Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts, Arts. 2, 4–5. Ministry of Justice text.
- Ministry of Justice, Frequently Asked Questions on the Process of Delivery of the Child and Establishing Personal Contact with the Child, 03.02.2025. Official statement.
- Court of Cassation 2nd Civil Chamber, 13.03.2025, E.2024/7439, K.2025/2682. Text of the decision.
- Court of Cassation 2nd Civil Chamber, 27.03.2025, E.2024/5611, K.2025/3196. Text of the decision.