The right to respect for family life requires that family ties be protected against arbitrary interference and, in certain cases, that effective measures be taken to keep those ties alive. Implementing a decision on personal contact with a child is as important as the decision itself. However, a parent’s request for contact is not absolute; the child’s best interests and safety are decisive. Custody, personal contact, enforcement of the decision and constitutional application are separate legal stages. [1–3]
This article is for general information only. The child’s age, development, views, safety risks and the countries in which family members live may change the outcome of a file.
How is family life determined?
Articles 20 and 41 of the Constitution (Anayasa) and Article 8 of the European Convention on Human Rights (AİHS) are the basic grounds. Family life is not determined only by the existence of official records; real personal bonds also matter. Divorce does not by itself end the family bond between a parent and a child. However, not every distant kinship carries the same degree of protection. [1; 2]
Alongside the State’s duty not to interfere, there is a duty to establish suitable legal and administrative mechanisms so that family relationships can be maintained. Where the dispute is between private persons, the conduct of the courts and enforcement authorities may also be subject to constitutional review. The State is not directly responsible for every obstruction by the other parent; what is examined is whether the authorities took adequate and prompt measures against the problem known to them.
How is the best interests of the child given concrete content?
The best interests of the child are not a label without reasons. They must be explained through facts such as age, health, education, care arrangements, the nature of the bonds, the risk of violence and the child’s views. The child’s views must be obtained by a method suited to the child’s stage of development, and the child must not be turned into an instrument of the conflict between the parents.
A parent’s wish and the child’s best interests may conflict. Personal contact may need to be established under expert supervision or on specific conditions. Where there is a serious risk, restricting contact is also possible. On the other hand, a dispute between the parents alone does not justify leaving an actual break in the family bond unaddressed. [3, art. 182, 323–324]
Custody and personal contact are not the same right
Custody is a broader legal responsibility that includes the child’s care and representation. Personal contact, by contrast, regulates the relationship between the child and the parent to whom custody has not been granted. A decision on personal contact does not give the parent authority to take the child at any time and to any place. The day, time, handover place and other conditions of the decision must be implemented. [3]
When circumstances change, a new arrangement for personal contact may be requested. Distance, school timetable, health or the child’s growing age may make the existing schedule unworkable. A request to change a decision must not be confused with a request to enforce the existing one. The enforcement authority is not the body that re-creates the ruling at its own discretion.
Non-payment of maintenance and personal contact are separate matters. Preventing contact cannot be used as a method of collecting a maintenance claim. Likewise, preventing contact does not by itself release the maintenance obligation.
Through which authority is the handover of a child now carried out?
Article 41/A and the following articles of Law No. 5395 on Child Protection (Çocuk Koruma Kanunu) regulate the enforcement of child handover and personal contact decisions through the Judicial Support and Victim Services Directorates (adli destek ve mağdur hizmetleri müdürlükleri). Where no such Directorate exists, the assignment arrangement in the Law applies. The former enforcement directorate practice must not be presented as the current general route. [4]
The right holder submits the judgment or interim order (ilam veya tedbir kararı) to the relevant Directorate. The Directorate carries out the legal steps concerning communication with the obligated party, the handover place and any necessary expert support. The scope of the decision, the parties’ reachable contact details and any earlier instances of non-compliance must be clearly reported. The child’s best interests are protected throughout the process.
An act of the Directorate and a breach of a handover order are different
A complaint against an act or decision of the Directorate may be lodged with the family court of the place where the Directorate is located within one week from learning of it or from notification, under Article 41/E of Law No. 5395. An objection to the decision on that complaint may be made within two weeks from notification. These two periods are not the same. [4]
Non-compliance with a handover order, or obstruction of the enforcement of a personal contact decision, is separately regulated under Article 41/F. Under the conditions set out in the Law, disciplinary imprisonment may come up upon a complaint filed within one month. A complaint about a Directorate act cannot be used in place of a complaint about the obligated party’s conduct contrary to the order. Disciplinary imprisonment is not automatic; procedure, notification, defence and the concrete conduct are examined.
Murat Atılgan decision: time affects family bonds
In its decision in Murat Atılgan, Application No. 2013/9047, 7 May 2015, the Constitutional Court (Anayasa Mahkemesi, AYM) assessed the right to respect for family life in the context of personal contact with a child. Examining whether the authorities had conducted the process in a manner that protects family bonds, the Court found a violation and ordered a retrial. [5, §§ 32–52]
The key importance of the decision is that, in family disputes, time is not a neutral factor. Delay may weaken the relationship between parent and child. However, this decision belongs to an earlier enforcement period; the current child handover authority is determined under Law No. 5395. The constitutional principles of the decision and the former enforcement procedure must not be confused.
Risk of violence and restriction of personal contact
A claim of family life does not require disregarding the risk of violence or abuse. Protection orders, health records, expert reports and concrete events must be evaluated. Where necessary, a safe handover, expert supervision or a re-arrangement of contact may be requested. Applying a severe restriction on the basis of general accusations is as problematic as failing to examine credible risk indicators at all.
The applicant must answer the strongest argument of the other side. If it is said that the child does not wish to meet the parent, how and under what conditions that was established must be examined; if a security risk is alleged, the documents on which it rests must be examined. Forcing a child to produce evidence or steering the child’s views is not an acceptable method.
The court must not act as though it has left the decision to an expert report; it must assess the reasoning of the report and the parties’ objections. An expert opinion does not replace the legal decision. The currency of an older report may also matter because of the child’s development.
Cross-border links and family unity
A parent living abroad may require clearly regulated arrangements for travel, school holidays, handover and return. The effect in Türkiye of a foreign decision, the need for recognition or enforcement, and the applicable international convention are examined separately. The existence of a foreign decision does not mean that it can be applied directly in Türkiye.
The return process in an international child abduction claim is not the same as the proceedings that determine the substance of custody. The child’s habitual residence, the date of removal or retention and the exceptions are important. This article does not propose a single return procedure for all countries; the relevant country and the convention connection must be researched separately.
For foreign nationals, family life does not confer an unconditional right to reside in the country of their choice. The effect of a residence or deportation procedure on the family, the reality of family bonds, the children’s situation and public-interest reasons are assessed together. The special time limits for migration procedures must not be confused with family court time limits. [2; 8]
Documents and action plan
| Issue | Priority document | Direction of the request |
|---|---|---|
| Contact calendar not being implemented | Court judgment, Directorate records, contact sessions that did not take place | Effective enforcement of the existing decision |
| Calendar not suited to the child | School, health and transport information, and current expert information | Re-arrangement of personal contact |
| Defect in a Directorate act | The act and the record of learning or notification | Complaint under Article 41/E |
| Breach of a handover order | Notification of the order, minutes, concrete breach | Assessment of the conditions of Article 41/F |
Where a contact session does not take place, the date, time, presence and the reason for the obstruction must be recorded. Rather than an open social media post about the child, a documented application should be made to the competent authority. Health or education information should be used only for its intended purpose.
What deficiency should be shown in a Constitutional Court application?
The Constitutional Court (AYM) is not a family court that determines custody from the outset. It examines whether the authorities balanced the relevant interests, whether they gave concrete content to the best interests of the child, and whether they took sufficient care to implement the decision effectively. Exhausting the ordinary remedies and, as a rule, the thirty-day period are important. In a continuing enforcement problem, which decision is final is also determined separately. [6]
Lawyers may apply through the UYAP Lawyer Portal (UYAP Avukat Portalı). The application should include the nature of the family relationship, earlier requests, enforcement records, court decisions and notification documents. The parent’s own right and the right the parent represents on behalf of the child must be kept apart; if there is a conflict of interest, the question of representation must be resolved separately. [6; 7]
After a violation decision, a retrial or enforcement must also take account of the child’s current situation. Mechanically applying an old contact calendar is not always adequate redress. Compensation does not replace the steps necessary to rebuild the family bond.
The article on the right of a parent living abroad to personal contact with a child complements this one for cross-border matters.
Family life is not only a custody dispute
Özlem Usta’s review shows that protection of family life has arisen in different areas, such as a child’s surname, de facto family relations, spousal status and family ties with persons in penal enforcement institutions. This variety does not mean that every family relationship has the same legal status. In an application, the nature of the de facto bond, dependency, living together and efforts to maintain the relationship must be made concrete. Historical arrangements or debates in case law must not be substituted for current legislation. [9]
How is effective implementation monitored in a file on a child and contact?
Making a decision and implementing it are separate stages
A personal contact decision may set the day and time of contact, but to implement it in practice the relevant unit must be approached and the steps followed. The date of each failed handover or attempted contact, the reason given and the minutes drawn up must be preserved. Rather than the bare statement “I cannot see my child”, it should be shown which part of the decision could not be implemented and how many times. The effect of the delay on the bond with the child should be explained through the concrete process. [3; 4; 5]
Where it is alleged that the child does not wish to see a parent, that statement must be examined together with the child’s age, development, safety and expert evaluation. Both an approach that disregards the child’s will through coercion and an approach that halts the entire implementation without any inquiry may cause problems. The parties’ own interpretations should not be accepted as they stand; where necessary, expert support and appropriate contact conditions should be requested.
Changed circumstances may require a new arrangement
The child’s age, education programme, health or the place where the parties live may have changed. The claim that an old decision is no longer workable must be substantiated before the competent court, rather than contact being stopped unilaterally. Where there is a risk of violence or abuse, the child’s safety takes priority; a restriction or protective measure requested must be justified by current events. By contrast, every dispute between parents does not justify severing the child’s bond with the other parent. [1; 3]
Whether contact should be supervised by an expert, its duration changed or another arrangement requested depends on the circumstances. It is important that the application seeks a workable solution. The best interests of the child must not be used as an abstract label expressing the result that one adult party wants.
How are family ties shown in deportation and residence procedures?
The existence of family life is not assessed by the marriage certificate alone. Living together, the age and schooling of the children, dependency for care, regular personal contact and the reality of family bonds are important. However, the existence of a family bond does not give every foreign national an unconditional right of residence. A concrete assessment is required between the public interest in migration control and the severity of the interference with family life. [2; 8]
The application must explain whether it is realistic for the family to live together in another country, how long the separation has lasted and what its effect on the child is. The special route and time limit for challenging a deportation decision are not the same as the procedure in a personal contact case. Review of an administrative detention decision is also separate from the deportation decision. Applying to the wrong authority may mean that the substance of strong claims about family bonds is never examined.
The family file to be submitted to the Constitutional Court should not reproduce the child’s identity and health information more than necessary. Bearing in mind that the application may end in publicly available decisions, the need for privacy is assessed. The redress sought should relate not only to the finding of past delay, but also to practical measures that help preserve the family bond. [6]
The decision-making process on family life also matters
When assessing interference with family life, not only the outcome of the decision but also how it was reached is important. The parents must be able to present substantiated explanations, the child’s situation must be properly investigated, and decisions must rest on current information. A report prepared years ago may be inadequate to explain changes in age, health or living conditions. The applicant should not be content with saying that the report is old; it should show what change makes a new examination necessary. [1, 2, 5]
In objecting to an expert report, personal dissatisfaction must be separated from a deficiency of examination. The person not heard, the living condition not investigated or the contradiction within the report must be identified concretely. The court is not obliged to accept every request for a new report; however, a serious objection that may affect the outcome must be assessed. Where there is a difference between the expert’s recommendation and the court’s decision, the reasons for the difference should be understood from the decision as a whole. The phrase “best interests of the child” must not be used as a general formula in place of concrete assessments.
How is the request for contact balanced against the child’s safety?
A parent’s interest in establishing a relationship with the child is important, but the centre of the decision is the best interests of the child. When risks of violence, neglect or serious harm are alleged, the nature of those allegations must be investigated. Mere conflict between the parents does not in every case justify removing personal contact entirely. On the other hand, it is equally incorrect to disregard a concrete safety risk on the ground that the relationship should continue. The form and place of contact, its duration and the necessary safeguards are assessed according to the circumstances. [3, art. 323–324]
The application must separate past events from current risk. The fact that a claim appears in another file does not automatically answer all the questions before the family court. The outcome, scope and current effect of the relevant decisions should be presented. The reason why an interim measure should continue or be changed may also be explained. In this way the process does not reduce to a repetition of accusations by one parent against the other.
How should the child’s views be assessed?
Taking the child’s views into account is not the same as leaving all responsibility to the child’s preference. The child’s age, maturity and the circumstances in which the statement was made matter. The conversation must not create new pressure on the child, and the statement must be assessed in the context of the whole matter. Where the child says they do not wish to see one of the parents, the reason must be investigated. Fear, long-term separation and the effect of conflict between the parents may not call for the same solution. [1, art. 41; 3, 5]
The effect of time on family ties in the Murat Atılgan decision
The importance of the Murat Atılgan decision for preparing an application lies in the fact that time lost in family relationships cannot always be made good afterwards. A personal contact decision existing on paper does not show that the relationship was actually established. In the application, the dates of unimplemented contacts, the requests made and the measures taken by the authorities must be shown concretely. Stating only the total period is not enough; it must be explained which step could not be taken successfully during that period. [5]
However, the State’s obligation does not guarantee, in every case, that a particular result will be achieved by using force. The best interests of the child, the parties’ conduct and workable measures are assessed together. The applicant’s own cooperation and compliance with decisions also form part of the facts. The position of a person who entirely refuses reasonable arrangements on transport or handover is not the same as that of a person whose every attempt was left without result. Effective remedy also makes the steps taken by the applicant visible.
Why must current enforcement records be added to the file?
In the handover of a child and the enforcement of personal contact decisions, the system of Law No. 5395 must be the basis. Descriptions of the enforcement procedure under older decisions must not replace the current application route. Requests submitted to the Judicial Support and Victim Services Directorates, the procedural minutes and the relevant complaint decisions show how the enforcement actually proceeded. Adding only the custody or personal contact provision to the Constitutional Court application may be insufficient to explain the enforcement problem. [4]
A reason and the action taken must be recorded for each date on which contact did not take place. The child’s illness, a party’s non-attendance, a change of address and an administrative organisation problem are different facts. The application must not merge them into a single sentence, “the decision was not implemented”. In particular, if it is stated which authority could take which measure and whether a request was made to that authority, the allegation of neglect can be examined more soundly.
The requests in a family life file must also be proportionate. The Constitutional Court is not expected to determine custody directly or to write a specific contact calendar. Depending on the nature of the violation, a re-examination, effective enforcement or appropriate redress may come into question. If the child’s current situation has changed, the change should be presented to the competent judicial authority rather than maintaining the old request unchanged. Constitutional review and the continuing family law process must preserve their different functions. [5, 6]
For details, see our articles on respect for private life and protection of personal data and the principle of equality and the prohibition of discrimination. For our firm’s work in this area, see the Constitutional Court and ECtHR applications page.
For details, see our article on G-87 restriction code.
Conclusion
Effective protection of the right to respect for family life considers together the child’s best interests and the maintenance of family bonds. The right application separates implementation of the existing decision from changing the decision, and documents each obstruction as it occurs. The effect of delay on the relationship must be at the centre of both the application and the redress.
Frequently Asked Questions
Should one go to the enforcement office for personal contact with a child?
The current general arrangement is carried out through the Judicial Support and Victim Services Directorates.
What is the time limit for a complaint about a Directorate act?
It is one week from learning of the act or from notification. An objection to the decision on that complaint has a separate two-week period.
Is a complaint about obstructing contact also subject to one week?
No, these are different procedures. Under Article 41/F, which covers breach of a handover order, a one-month complaint period and specific conditions apply.
Can personal contact be prevented because maintenance is unpaid?
Personal contact and maintenance are separate obligations and rights; neither may be used as a sanction for the other.
Is the child’s view alone decisive?
It matters, depending on the child’s age and development; the best interests are determined by assessing all the circumstances.
Does the Constitutional Court directly change custody?
It does not decide as a first-instance family court would. It assesses the constitutional violation and the appropriate redress.
Sources and legal bases
[1] Constitution (Anayasa), Art. 20, 41. Text.
[2] European Convention on Human Rights (AİHS), Art. 8. Text.
[3] Law No. 4721, Turkish Civil Code (Türk Medeni Kanunu), Art. 182, 323–324. Text.
[4] Law No. 5395 on Child Protection (Çocuk Koruma Kanunu), Art. 41/A–41/I. Text.
[5] Constitutional Court (AYM), Murat Atılgan, Application No. 2013/9047, 7 May 2015. Decision.
[6] Law No. 6216, Art. 45–50. Text.
[7] Constitutional Court (AYM), UYAP Lawyer Portal application guide (UYAP Avukat Portal başvuru kılavuzu). Guide.
[8] Law No. 6458 on Foreigners and International Protection (Yabancılar ve Uluslararası Koruma Kanunu). Text.
[9] Özlem Usta, “Aile Hayatına Saygı ve Aile Hayatının Korunması Hakkı Bağlamında Ele Alınan Birkaç Kurum Üzerine İnceleme” (in Turkish), Selçuk University Faculty of Law Journal (Selçuk Üniversitesi Hukuk Fakültesi Dergisi), 30/3, 2022, pp. 1561–1590. Study.