Removal of custody is a grave intervention resorted to where lighter measures for protecting the child have not worked or it is clear from the outset that they will fall short. Not every dispute between parents, financial hardship or lapse in care is a ground for removal. When the reason that required removal has ceased to exist, custody may also be restored; for this, the changed circumstances must be assessed by the court.
This article addresses the protective measures under TMK Articles 346–351, the conditions and consequences of removal, the distinction between a guardian and a curator, and the restoration process. Asking that the child live only with the other parent and removing a parent's custodial authority are not the same request. The right distinction prevents a judgment that is heavier than necessary or ineffective for the child as well as for the mother and father. [1]
What conditions does the removal of custody depend on?
TMK Article 348 provides for two basic situations. The first is that the custodial duty cannot be properly performed because of inexperience, illness, absence elsewhere or similar reasons. The second is that insufficient attention is shown to the child or that obligations are grossly neglected. In addition to these, it must be that other measures for the protection of the child have remained without result or that their insufficiency is understood in advance. [1]
Therefore, a diagnosis of illness, a manner of working or the fact of living in a different city is not enough on its own. How this circumstance affects the duties of care, protection, education and representation must be investigated. If the parent can continue the duty with support, the reason for moving directly to the gravest measure must be separately explained.
It is also not necessarily required to wait for the child to be harmed before removal. It may be understood from the outset that lighter measures will not prevent a concrete danger. However, this conclusion must be reached not by assumption but on the basis of the nature of the danger, the available means of protection and current evidence.
Why are lighter protective measures assessed first?
TMK Article 346 allows appropriate measures where the child's welfare and development are endangered and the parents do not remedy this or are unable to. TMK Article 347 regulates placement with a family or in an institution. Other protection mechanisms, such as counseling, health or care support, may also be assessed within their own statutory conditions. A placement or support decision does not necessarily mean that custody has been removed.
The court should also examine whether the child's protection can be secured by giving custody to the other parent. The principle that "removal is the last resort" should not be understood as an obligation to try every measure in sequence over months in every case. Insisting on a method that is understood to be insufficient in the face of clear danger is also not in the child's interest.
The limit shown by the 2026 Court of Cassation decision
In its decision of January 14, 2026, E. 2025/8689, K. 2026/261, the 2nd Civil Chamber of the Court of Cassation (Yargıtay 2. Hukuk Dairesi) examined the grandparents' requests for removal of custody and subsequent requests for personal contact. The Chamber emphasized that removal is the gravest and a last-resort measure and that options such as giving custody to the other parent must be investigated. The decision stated that the relevant evidence must be gathered and that the request for removal must not be left unexamined on procedural grounds, and it reversed the judgment. [3]
This decision does not mean that custody or guardianship is granted to grandparents automatically. In the specific case, the order of the requests, the child's representation by a curator and the court's duty of investigation were addressed together. The importance of the decision for grandparents is that a request for the protection of the child and a request for personal contact produce separate legal consequences.
How do change of custody and removal of custody differ?
A change is the transfer of custody from one parent to the other as the child's interest requires. Removal is a decision with broader effect that depends on the conditions of TMK Article 348 being met. The fact that the two requests are described in the same everyday expressions does not erase the distinction in the judgment.
In its decision of February 3, 2016, E. 2016/385, K. 2016/1765, the 2nd Civil Chamber of the Court of Cassation found it erroneous that a judgment producing the consequences of removal was rendered although the case was suited to a change. The Chamber also examined the personal contact and maintenance arrangements separately. The decision shows that a parent's assuming the child's care cannot in every case be written up as the other parent's custody having been removed within the meaning of TMK Article 348. [4]
| Legal measure | Basic purpose | Main consequence |
|---|---|---|
| Protective measure | To eliminate the danger through appropriate support or limitation | A special arrangement can be made while custody continues |
| Change of custody | To arrange care under the authority of the other parent | The holder of custody changes |
| Removal of custody | To prevent a danger that cannot be eliminated by lighter measures | Custodial authority is removed within the statutory scope |
| Appointment of a guardian | To represent and protect a child who is not under custody | Representation supervised by the guardianship authority (vesayet makamı) is established |
| Curator for representation | To resolve a specific conflict of interest or obstacle to representation | The authority is limited to a particular matter or dispute |
Further explanation of the conditions for a change is found in the article on the action for change of custody. Although the child's interest is the basis in both routes, the circumstances to be proved and the effects of the judgment are not the same.
How are illness, poverty and remarriage assessed?
Illness or disability cannot be used as a negative label without examining the person's parenting capacity. The course of treatment, daily functioning, the child's special needs and a reliable support arrangement must be investigated together. There is a difference between temporarily receiving family support because of illness and leaving the child permanently unprotected.
Financial hardship is likewise not a ground for removal on its own. The reason the care has lapsed and whether it can be remedied through social support must be determined. Removal cannot be turned into a means of punishing poverty. By contrast, serious neglect of the child despite the availability of financial means calls for a different assessment.
Under TMK Article 349, remarriage is not in itself a ground for removal. If it is claimed that the child's safety and care have deteriorated in the new family environment, concrete events must be shown. Prejudice against the new spouse or irrelevant arguments about the parents' private lives cannot take the place of a need for protection. [1]
Who can apply and which court has jurisdiction?
The protection of the child is not an area left solely to a private agreement between the parents. The other parent's request, a report by a concerned person or information that competent institutions transfer to the file may prompt the court's review. However, making a report and requesting a particular decision as a party or interested person in a case are not the same thing. The applicant's relationship with the child and the nature of the request must be explained.
The removal and restoration of custody fall within the subject-matter jurisdiction of the family court. The appointment of a guardian is assessed in the civil court of peace (sulh hukuk mahkemesi), which is the guardianship authority. A family court's decision on removal does not automatically make the relative who applied the guardian; the selection of a suitable person is subject to the provisions on guardianship. [1, 2, 6]
The removal, change and restoration of custody are listed among non-contentious jurisdiction matters in HMK Article 382. This characterization does not mean that the mutual allegations or the right of defense are unimportant. Hearing the persons concerned, assessing the evidence and a reasoned decision are required. Subject-matter jurisdiction and territorial jurisdiction must be separated; for territorial jurisdiction, HMK Article 384 and the features of the specific application should be examined.
Why is the child's independent representation important?
Where the child's interest conflicts with that of the legal representative, a curator for representation (kayyım) may come into question under TMK Article 426. The holder of the custody sought to be removed cannot be accepted as impartially representing the child's interest in every case in the same dispute. The curator represents the child in the specific file; he or she need not be the holder of the entire arrangement of care and representation as a guardian is.
In the 2026 Court of Cassation decision as well, the fact that a curator had been appointed was taken into account in the review. This element shows that proceedings concerning the child should not be treated as a dispute solely among adults. [3]
Which evidence is decisive?
The facts alleged in the petition to require removal must be shown with their dates. It must be explained which obligation has lapsed and how, what danger the child has encountered and why lighter measures are not sufficient. If there are existing social services and protection decisions, their results should also be submitted to the file.
• Relevant records of the child's school attendance, health follow-up and daily care.
• Witnesses with direct knowledge of the concrete events and dated incident documents.
• A current social investigation report (sosyal inceleme raporu) and an assessment of the mother, the father and the care environment.
• Measures taken previously, whether they were implemented and their results.
• In the case of a health or treatment allegation, a properly obtained expert assessment limited to the subject.
• Housing, support and education information showing the safety of the alternative care arrangement.
The child's views should be obtained in a suitable setting, taking into account age and maturity. It is not appropriate to have the same event recounted repeatedly or to steer the child toward blaming a particular parent. Health and private-life data should also be used only to the extent relevant to the file and should not be shared publicly.
What consequences does a removal decision have?
Under TMK Article 348, if custody is removed from both parents, a guardian is appointed for the child. The same article provides that, unless otherwise stated in the decision, removal covers all existing and future children. The judgment must therefore be read carefully to see which children the decision produces consequences for. The mere appearance of one child's name in the petition does not mean that the scope of the judgment is in every case limited to that child. [1]
Removal does not eliminate parentage (soybağı) and does not produce the effects of adoption. Under TMK Article 350, the parent's obligation to contribute to the child's care and education expenses continues. Personal contact with the child is also examined separately; if there is a safety risk, a limitation or an appropriate protective arrangement may be needed. It cannot be concluded from a removal decision that all contact is prohibited forever in every case.
The connection among the finality of the decision, notification to the guardianship authority, the appointment of the guardian and day-to-day matters should be followed. The need for interim protection should be separately explained to the court so that no gap in representation is left in the child's school and health matters.
How is removed custody restored?
TMK Article 351/2 provides that, if the reason that required removal has ceased to exist, the judge restores custody on his or her own motion or at the request of the mother or father. The essential question is whether the problem on which the earlier decision was based has actually been remedied today. The mere passage of time or a statement such as "I am ready now" does not form a sufficient basis for assessment. [1]
For example, if care could not be provided because of a long course of treatment, the current state of health, caregiving capacity and support plan must be shown. If grave neglect is involved, concrete changes in terms of regular attention, a stable life and the child's safety are investigated. The child's bond with the current care environment and how the transition will be carried out are also assessed.
In its decision of March 26, 2018, E. 2018/1270, K. 2018/3883, the 2nd Civil Chamber of the Court of Cassation, while affirming the removal judgment, also stated that restoration is possible if the reason ceases to exist. This decision should not be presented as an example in which a request for restoration was granted; its explanation that removal is not an absolute and unchangeable prohibition is what matters. [5]
How are restoration and the termination of guardianship carried out together?
If a guardian has been appointed for the child, the existing guardianship file must be notified to the court. A request for the restoration of custody and the procedures concerning the end of the guardian's duties and accounts are not the same concept. Taking into account the respective areas of responsibility of the family court and the guardianship authority, the decisions should be notified to each other and the arrangement of representation should be clear.
School, health, personal contact and care expenses should also be arranged for the child's transition to the new arrangement. An improvement in the parent's circumstances does not mean that the child's existing bonds should be severed in one day and without preparation.
How are appeals against the decision and urgent protection assessed?
For independent non-contentious jurisdiction decisions, HMK Article 387 is taken into account for the appeal (istinaf) to the regional court of appeal, and Article 362/1-ç for the appeal to the Court of Cassation (temyiz) against the decision of the regional court of appeal. The starting date and which decision concluded which request must be determined from the file. Decisions in which different requests are examined together should not be assessed by the name of the case alone. [2]
In urgent danger, it may not be necessary to wait for the decision on the merits. Interim protection, the relevant social services mechanism and, if necessary, other protective arrangements should be made the subject of separate requests. It should not be assumed that a later statement of withdrawal automatically ends the child's need for protection; the 2026 decision emphasizes the court's responsibility of investigation in this regard. [3]
Conclusion
In the removal of custody, necessity, suitability and the sufficiency of lighter measures must be examined together. The effect of the judgment on other children, maintenance, personal contact, representation and guardianship consequences must be clear. A request for restoration, in turn, should be prepared with current evidence showing that the earlier reason has ceased to exist and that the child can move to a safe arrangement. For the special starting rule concerning children born out of wedlock, the article on the rights of the mother and the father may also be consulted.
Related articles: Death, Illness or Imprisonment of the Parent Holding Custody: How Is the Child's Care Arranged?; Custody Action: The Child's Custody, the Court's Criteria and the Litigation Process.
Frequently Asked Questions
Once custody has been removed, can it never be restored?
No. If the reason that required removal has ceased to exist, restoration may be considered under TMK Article 351.
Is custody removed because the grandmother takes care of the child?
Family support alone is not sufficient. The parent's responsibility, level of attention and the safety of the care are investigated.
Does removal affect only the child who is the subject of the case?
Unless the decision states otherwise, the statute provides for a consequence covering all existing and future children. The scope of the judgment must be examined.
Does the maintenance obligation end when custody is removed?
No. The obligation concerning the child's care and education expenses continues under TMK Article 350.
Does a relative who requests the appointment of a guardian necessarily become the guardian?
No. The guardianship authority determines the suitable person within the statutory conditions and the child's interest.
Sources and legal bases
- Turkish Civil Code No. 4721 (Türk Medenî Kanunu); Articles 323–325, 346–351, 397, 404, 426. Legislation record.
- Civil Procedure Code No. 6100 (Hukuk Muhakemeleri Kanunu); Articles 362/1-ç, 382–388. Legislation record.
- Court of Cassation 2nd Civil Chamber (Yargıtay 2. HD), January 14, 2026, E. 2025/8689, K. 2026/261; reasoning on last resort, ex officio investigation, the curator and change of request. Full text.
- Court of Cassation 2nd Civil Chamber (Yargıtay 2. HD), February 3, 2016, E. 2016/385, K. 2016/1765; reasoning 2–4. Full text.
- Court of Cassation 2nd Civil Chamber (Yargıtay 2. HD), March 26, 2018, E. 2018/1270, K. 2018/3883; reasoning 2 and the outcome of affirmance. Full text.
- Law No. 4787 on the Establishment, Duties and Procedures of Family Courts (Aile Mahkemelerinin Kuruluş, Görev ve Yargılama Usullerine Dair Kanun), Articles 2, 4–5. Official text.