What needs do modification, recognition and enforcement meet?
Wanting to use a foreign decision in Türkiye and changing the care arrangement established by that decision are different requests. Recognition means acceptance of the decision's legal effects; enforcement, or the declaration of enforceability under an applicable convention, makes compulsory execution possible when necessary. In a request for modification, on the other hand, what is examined is which arrangement will now protect the child's life. The Turkish judge is not a court of appeal over the foreign court. The making of a new protection order does not mean retroactive annulment of the foreign judgment.[1][3]
| The reader's need | Procedural route to be assessed | Result this route does not provide |
|---|---|---|
| Making the existing foreign custody decision effective in Türkiye | Recognition under the applicable convention; where necessary, recognition under MÖHUK | Custody automatically passing to the other parent |
| Enforcing the existing handover or personal contact arrangement | Enforceability/enforcement and an appropriate execution process | A rehearing of the merits of the decision |
| A new care arrangement because of later changed circumstances | Re-regulation of custody or personal contact before the competent authority | The earlier decision stopping automatically once an application is made |
| Protecting the child from urgent danger in Türkiye | An interim protective measure for which jurisdiction and the conditions exist | Acquiring permanent custody jurisdiction in every case |
| Return of a child wrongfully removed or retained | Return under the 1980 Hague Convention, if applicable | Final determination of the merits of custody |
This distinction should be reflected in the relief sought in the petition. Merely saying "let the foreign decision be changed" does not explain whether recognition, the contact schedule or with whom the child will live is in dispute.[1][5]
Which convention or law applies?
The 1996 Hague Child Protection Convention entered into force for Türkiye on 1 February 2017. It covers custody and personal contact measures concerning children who have not reached the age of eighteen; child maintenance and the divorce itself do not automatically fall within the same rules. The reservation of conventions to which Türkiye is a party is also required by Art. 1(2) of Law No. 5718 on Private International and Procedural Law (MÖHUK).[1][2][3]
In the file, the country where the decision was given, the date the Convention entered into force for that country, its applicability with Türkiye, any territorial scope and the date of the decision are checked together. Article 53 links the taking of measures, and the recognition and enforcement of foreign measures, to different points in time. Consequently, the route for recognising a foreign decision from before 2017 and the basis for a new protection measure sought today do not have to be the same.[1]
For example, Germany is a Contracting State; the USA appears only as a signatory in the HCCH status table. It cannot be said that the same convention route is open for decisions given from these two countries. Nevertheless, a State's not being a party does not make all provisions of the 1996 Convention irrelevant. The scope of the relevant provision of the Convention, any other conventions and then the domestic law provisions that may apply are examined separately.[1][2][4]
How is jurisdiction to give a new decision in Türkiye determined?
The child's habitual residence and a lawful relocation
Under Art. 5 of the 1996 Convention, the basic connecting factor is the Contracting State in which the child's habitual residence is located. Habitual residence describes the actual centre of the child's life. Population registration, citizenship or one parent's owning a home in Türkiye is not sufficient by itself. School, care arrangements, social ties, and the purpose and continuity of the stay are assessed together; there is no fixed six-month condition applying to everyone.[1][4]
If the child's habitual residence has passed to Türkiye lawfully, the jurisdiction of the Turkish authorities may arise, subject to the exception for wrongful removal in Art. 7 and other special provisions. It is therefore important whether the consent given to the relocation related only to a holiday or to permanent settlement. A plane ticket or school enrolment does not by itself prove the scope of the consent.[1][4]
The earlier divorce court does not always remain competent
Article 10 gives the divorce court limited jurisdiction over a child whose habitual residence is in another Contracting State. When the proceedings began, one of the parents must have had habitual residence in that State and at least one must have parental responsibility. In addition, acceptance of jurisdiction by the mother and father and the other holders of responsibility, the child's best interests and the permission of the court's law are required. This special jurisdiction ends when the divorce judgment becomes final or the proceedings end for another reason. An unlimited power of modification cannot be built on an old divorce protocol.[1]
The transfer of jurisdiction in Arts. 8–9 of the Convention likewise requires assessment and acceptance by the authorities. An agreement of the mother and father that "from now on Türkiye will be competent" does not replace this mechanism. If the same protection request is being heard in another competent Contracting State, the parallel proceedings rule in Art. 13 is assessed separately.[1]
The place of MÖHUK Arts. 40 and 41
MÖHUK Art. 40 or 41 cannot automatically be put in the place of the Convention's provisions. In cases where it has a field of application, Art. 40 refers to the domestic rules on territorial jurisdiction. Art. 41, for actions concerning the personal status of Turkish citizens, contains conditions such as that no action has been or can be brought abroad and graded court connections. It is not a general provision for bringing an action in Türkiye that can be used in every dispute between two foreign parents.[3]
How do bringing the child to Türkiye and a return action affect jurisdiction?
Failure to take the child back at the end of a holiday, or relocation contrary to the other rights-holder's consent, can make it difficult to obtain a new custody arrangement in Türkiye. In wrongful removal or retention, Art. 7 of the 1996 Convention maintains, under certain conditions, the jurisdiction of the State of the former habitual residence. In addition to the child's acquiring a new habitual residence in another State, either all holders of custody rights must have acquiesced in the removal or retention, or the conditions in Art. 7(1)(b) must be met together. In the second case, a one-year period linked to the rights-holders' learning, or being obliged to learn, where the child is, the absence of a return request that was made in this period and is still pending, and the child's having settled in the new environment, are assessed.[1]
If the 1980 Hague Convention applies, the restriction in Art. 16 on deciding the merits of custody after notice of a wrongful removal or retention comes into play. Bringing a modification action in Türkiye does not remove the return request. A return order likewise does not resolve the merits of custody, under Art. 19. The 1980 Convention does not apply once the child reaches sixteen; this age limit must not be confused with that of the 1996 Convention. Article 50 of the 1996 Convention preserves the joint operation of the two conventions.[1][5]
Case law: examining the concrete risk in a return file
In O.C.I. and Others v. Romania, 21 May 2019, application no. 49450/17, the European Court of Human Rights (ECtHR) held that the failure to assess sufficiently the risk of physical violence in the process of the children's return to Italy was a violation of the right to respect for family life. In particular, in §§40–48, it separated return proceedings from custody proceedings and stressed the importance of concrete protective safeguards.[9]
This decision does not show that custody jurisdiction passes to Türkiye for every child who comes to Türkiye. Its contribution to practice is this: if there is an allegation of serious risk, the evidence should not be left only to the modification file but should also be submitted in the return file within the relevant exception and the need for protection. The context of EU legislation in the decision, on the other hand, cannot be transposed automatically to Türkiye.[9]
Why is the merits of custody not re-examined when a foreign decision is recognised?
Under the 1996 Convention, recognition is as a rule by operation of law; under Art. 24, a determination of recognition or non-recognition may be requested. Where compulsory enforcement is needed, Art. 26 provides that the decision must be enforceable in the State where it was given and provides for an appropriate declaration of enforceability in the requested State. Article 28 ties enforcement to the law of that State.[1]
The prohibition on review of the merits in Art. 27 prevents the recognising court from changing the decision by saying "with the same old evidence I would have given a different custody decision." The grounds for refusal in Art. 23, such as jurisdiction, the right to be heard, or a manifest contradiction with public policy taking the child's interests into account, can be examined within their own limits. Not every deficiency in the right to be heard is an automatic ground of refusal; the conditions of the relevant sub-paragraphs and the urgency exception are taken into account.[1]
If the convention route does not apply, the framework of MÖHUK Arts. 50–59 comes into play, subject to special conventions. The conditions of recognition and enforcement are not entirely the same; for example, Art. 58 does not require reciprocity for recognition. The assessment of a new care need is a separate matter of re-regulation before the competent authority. It cannot be said that a separate recognition action must first be brought in every case, or that a foreign decision can be disregarded without any examination.[3]
Which changed circumstances may require custody to be re-regulated?
The link between the new fact and the child's need
First the applicable law is determined. When Turkish authorities take a protective measure under the 1996 Convention, they as a rule apply their own law under Art. 15; the exceptions in that article are reserved. For matters to which the Convention does not apply, connecting rules such as MÖHUK Arts. 14(3) and 17 are assessed according to the relationship of custody to the divorce or to filiation. The bringing of an action in Türkiye does not show that Turkish law will be applied to the merits of every dispute.[1][3]
If Turkish law is applied, TMK Art. 183 allows the measures that new facts make necessary. Art. 324 is important regarding obstruction of personal contact with the other parent, and Art. 346 regarding endangerment of the child's interests and development. The resolution of every disagreement is not a complete change of custody; adapting the personal contact schedule or an appropriate protective measure may also be sufficient.[6]
Remarriage, moving to another city or an increase in income does not by itself determine the outcome. For example, if a move leads to the child's treatment being disrupted or care being left continually to third parties, its effect should be explained. TMK Art. 349 expressly states that remarriage alone does not require removal of custody. An obstacle to personal contact likewise cannot be used as a punishment justifying a change of custody contrary to the child's interests.[6]
How is the change proved?
In the application, the situation on the date of the foreign decision should be compared with the situation today. Instead of "the other parent is uninterested," it should be shown since what date care has been deficient, its effect on the school or treatment needs, for what reason contact meetings have not taken place, and how the proposed arrangement would remedy this. The other side's strong defence may be that the alleged event was already examined in the earlier proceedings or does not require changing the child's arrangements.
It is important that the child's views be taken in a manner appropriate to age and maturity and that care environments and the expert assessment be examined. Article 12 of the Convention on the Rights of the Child regulates the child's opportunity to be heard in proceedings affecting him or her. TMK Art. 339 requires parents to take the child's opinion into account on important matters; Art. 5 of Law No. 4787 provides for making use of experts. Instead of putting pressure on the child to choose a parent, the conditions in which the child's view was formed should be assessed. That the principle of investigation of the court's own motion exists in non-contentious jurisdiction does not remove the parties' responsibility for submitting the documents they hold.[6][7][8][11]
Where is the application made and which documents are submitted?
Subject-matter court and international jurisdiction are different
For the re-regulation of custody and the recognition/enforcement of foreign decisions concerning family law, the family court is the competent court; in a place without a family court, the court of first instance for civil matters designated for that purpose sits as the family court. However, this rule on subject-matter jurisdiction does not create jurisdiction in a case where the Turkish courts have no international jurisdiction.[8]
Territorial jurisdiction within Türkiye is determined according to the request. For a non-contentious custody change, the provision of HMK Art. 384 on the place where the person concerned resides; for the regulation of personal contact, TMK Art. 326; and for recognition/enforcement under MÖHUK, Art. 51, are assessed. The option of Ankara, İstanbul or İzmir in Art. 51 depends on the other party's having no domicile or place of residence in Türkiye. This option cannot be carried over to all custody change requests.[3][6][7]
The documentary backbone of the file
- A full copy of the foreign decision: the operative part, the reasoning, annexes and any later amending decisions.
- The legal status of the decision: a certificate of finality or enforceability depending on the route followed; any pending remedies and stay orders.
- Notification and participation documents: notices given to the other parent, information on the right to be heard and on representation.
- A chronology of life and relocation: school, health and residence records; dates of travel; documents showing temporary travel or permanent settlement.
- Evidence of the changed circumstances: expert reports, care records, minutes showing obstacles to contact, and lawfully obtained correspondence.
- A proposal for the new arrangement: how daily care, school, treatment, personal contact, transport and handover will work; identity and representation documents.
The document conditions of MÖHUK Art. 53 must not be confused with the system of the 1996 Convention. Documents transmitted or delivered under the Convention are exempt from authentication under Art. 43; an apostille therefore cannot be treated as compulsory in every file. The exemption does not mean that the completeness of the document or the required Turkish translation is unimportant.[1][3]
The costs of service at a foreign address, translation and expert examination should be assessed at the outset. The parents' agreeing on the new arrangement can make the application concrete; but it does not remove the conditions of jurisdiction or the competent authority's assessment of the child's interests. In particular, the change of country of residence, care responsibility and the personal contact arrangement should be shown clearly.[1][6]
How is urgent protection requested while the case is pending?
If delay creates serious danger while the child is in Türkiye, the necessary urgent protection measures may come into play under Art. 11 of the 1996 Convention. In the request, the nature of the danger, the consequence of waiting and the scope of the requested measure should be clearly shown. Merely saying "we cannot agree with the other parent" does not explain an urgent danger.[1][4]
Jurisdiction to order urgent measures is different from jurisdiction to regulate permanent custody. There are rules on the expiry of Art. 11 measures; if the State of the former habitual residence retains its jurisdiction under Art. 7, Türkiye's intervention is also assessed within those limits. The possibility of protection in TMK Art. 346 cannot be used to ignore a problem of international jurisdiction.[1][6]
An application for modification does not automatically stop the earlier decision. Under Art. 14, measures taken on the basis of Arts. 5–10 remain in force on their own terms, even if the basis of jurisdiction later changes, until they are modified, replaced or terminated by the competent authority. If a stay or a new interim arrangement is needed, this must be decided separately and by the appropriate procedure.[1]
The route of application in two representative cases
Example 1: care disrupted after a lawful relocation
In a decision given in Germany, the child lives with the mother. A permanent move to Türkiye has taken place with the other parent's necessary consent and the conditions of the relevant decisions satisfied; the child's centre of life has been established here. In the following period an allegation arose that serious health follow-up was not being carried out, and the father wanted to assume responsibility for care.
In this hypothetical case, first whether Türkiye is the new habitual residence and its jurisdiction under the Convention are assessed. Then the health records, the care facilities of the two parents and the child's views are examined. Recognition of the German decision does not prevent the competent authority from establishing a new protection arrangement when circumstances change. Nevertheless, if the allegation of deficient care is not proved or a more limited measure is considered sufficient, custody may not change.[1][6]
Example 2: a holiday permission turned into a permanent stay
The child came to Türkiye for the summer holiday from his or her settled life in France and was not taken back on the return date. The parent in Türkiye enrolled the child at school and asked for custody to be given to him or her; the other parent quickly filed a return application.
In this hypothetical case, school enrolment alone does not give the Turkish courts jurisdiction over the merits. The scope of the holiday permission, the allegation of wrongful retention, Art. 7 of the 1996 Convention and Art. 16 of the 1980 Convention are assessed together. If there is a concrete risk of violence or to health, the evidence relating to urgent protection and to the return exceptions is submitted separately. An allegation of risk does not result in an automatic transfer of custody, nor does a return request result in an automatic return.[1][5][9]
Time limits, remedies and enforcement of the new decision
A custody request based on changed circumstances does not extend the remedy period of the old foreign decision. A person who wants to challenge the earlier decision in its own country must assess that procedure separately. The existence of new facts also does not lessen the importance of bringing the need for protection to the court without delay.
In Turkish proceedings, the award of custody from one parent to the other is a non-contentious jurisdiction matter under HMK Art. 382(2)(b)(13). Article 387 provides, for persons with a legal interest, subject to special provisions, a two-week appeal period from learning of the decision. A decision of the regional court of appeal in a non-contentious jurisdiction matter, on the other hand, cannot be appealed on points of law under Art. 362(1)(ç). The sequence of "first appeal (istinaf), then the Court of Cassation" therefore cannot be applied to all files.[7]
The remedy against a recognition/enforcement decision and the remedy against a custody change decision are determined separately. MÖHUK Art. 57 regulates the remedy concerning enforcement and its effect on execution. While HMK Art. 345 takes notification as the basis in the general appeal period, the non-contentious jurisdiction provision above ties it to learning. For an interim injunction, the applicable special objection provisions are checked; the period for the final decision is not carried over unchanged to the injunction.[3][7]
When a new decision is given, it must be clear which part of the earlier arrangement has been changed and how personal contact will be continued. The performance in Türkiye of child handover or contact is assessed on the basis of the enforceable decision within the system of the judicial support and victim services directorate. If the decision also needs to be applied abroad, the conditions of recognition and enforcement of the new Turkish decision in that country are addressed separately.[1][10]
Conclusion
A foreign custody decision does not fix the child's future needs unalterably. For re-regulation in Türkiye, the correct international jurisdiction and applicable law must first be established, and then the effect of the changed circumstances on the child shown. An objection to recognition, a new custody request, an urgent measure and the international return process do not substitute for one another. A sound application is one that can explain, within the same file logic, the whole of the earlier decision, the legal basis of the relocation, the present care need and the new arrangement that can be implemented.
Frequently Asked Questions
Can only the country that gave the foreign custody decision modify it?
No. New jurisdiction may arise, in particular, when the child's habitual residence has passed lawfully to another Contracting State. The exceptions in which the earlier State's jurisdiction continues, and the continuing effect of the existing decision, are examined separately. For explanations of jurisdiction, see the relevant section above.[1]
Is the child's being a Turkish citizen enough to bring an action in Türkiye?
It is not enough by itself. The applicable convention is assessed first. MÖHUK Art. 41 is also a special provision with its own conditions; it cannot be concluded from citizenship that every court has jurisdiction.[1][3]
Does the foreign decision end when we move to Türkiye?
No. A decision under Art. 14 of the 1996 Convention continues on its own terms unless the competent authority modifies it. Although relocation may affect jurisdiction, it does not automatically remove the existing custody or contact arrangement.[1]
Must a separate recognition action always be brought before asking for modification?
Not in every case. Under the 1996 Convention, recognition may take place by operation of law; if there is a dispute, a determination may be requested. Outside the Convention, the need for recognition and the procedure to follow are determined by examining the nature of the foreign decision and the new request together.[1][3]
Is it enough to tell the recognition court that the other parent no longer cares for the child well?
This allegation alone does not turn a recognition file into custody modification proceedings. The grounds for refusing recognition and the facts requiring a change in the current care arrangement should be separated; if necessary, a new protection order should be requested from the competent authority.[1]
If the other parent remarries, does custody necessarily change?
No. If Turkish law applies, the effect of the new situation on the child is assessed under TMK Arts. 183 and 349. The fact of remarriage cannot be made an automatic ground for change without showing other conditions that affect the child's interests.[6]
Does bringing a custody action in Türkiye stop the child's return?
It does not stop it automatically. The return process runs with its own conditions and exceptions; Art. 16 of the 1980 Convention may restrict a decision on the merits of custody. Allegations of serious risk should also be raised in the return process with the relevant evidence.[5][9]
Are an apostille and a certificate of finality needed for every foreign decision?
The legal route followed is decisive. The conditions of MÖHUK Arts. 50 and 53, and the enforceability and the Art. 43 authentication exemption of the 1996 Convention, are assessed separately. It is not correct to make every document subject to the same finality or apostille condition.[1][3]
Is appeal on points of law always open against a custody change decision?
No. Although an appeal (istinaf) is possible in a custody change that is non-contentious jurisdiction, the decision of the regional court of appeal cannot be appealed on points of law under HMK Art. 362(1)(ç). The route of application for recognition/enforcement and interim protection decisions is determined separately.[7]
Sources
1 — HCCH, Convention of 19 October 1996 on Child Protection, official full text, in particular Arts. 2–5, 7–15, 23–28, 43, 50, 52–53 and 58.
2 — HCCH, 1996 Convention status table (parties and entry into force), entries for Türkiye, Germany, France and the USA.
3 — Law No. 5718 on Private International and Procedural Law, Arts. 1–2, 14, 17, 40–41 and 50–59.
4 — HCCH, Practical Handbook on the Operation of the 1996 Hague Child Protection Convention, 2014, chapters 3–4, 6, 8 and 13.
5 — HCCH, Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, in particular Arts. 3–4, 12–13 and 16–19.
6 — Turkish Civil Code No. 4721, Arts. 183, 324, 326, 339, 346 and 349.
7 — Code of Civil Procedure No. 6100, Arts. 345, 362, 382, 384–388 and 389–394.
8 — Ministry of Justice, Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts, Arts. 2, 4 and 5.
9 — ECtHR, O.C.I. and Others v. Romania, application no. 49450/17, 21.05.2019, in particular §§40–48.
10 — Child Protection Law No. 5395, Art. 41/A et seq.
11 — United Nations, Convention on the Rights of the Child, 20.11.1989, Arts. 3 and 12; UNICEF Turkish text.