Custody of a child is not granted by following a predetermined order of preference between the mother and the father. In a divorce or separation, the court examines under which care arrangement the child will be safer and develop in a healthier way. Age, the bond with each parent, actual care, and school and health needs are assessed together. High income, not working, or being free of fault in the divorce does not, on its own, win custody.
This article focuses on the comparison of the parents’ circumstances in the first custody decision made during a divorce or separation. Where the mother and father have never married, the different starting rule and the exceptions in TMK Art. 337 apply separately. A change to an existing custody decision is examined together with the earlier decision and the facts that arose afterward. [1]
Why does custody not depend solely on being the mother or the father?
The purpose of custody is to secure the care and development of the child. Generalizations such as “a daughter stays with the mother, a son with the father” or “if the mother wants it, the father cannot have it” do not meet this assessment. Promising an outcome on the basis of a parent’s sex overlooks the child’s real needs.
The court’s comparison does not amount to awarding each parent a success score. Two people with the same income and housing may differ in their relationship with the child, their working hours and their reliable support network. Moreover, an arrangement considered suitable for one child may not produce the same result in view of a sibling’s particular health or education needs.
Every allegation made about the mother or the father must be explained through its effect on the child. Resentment between the spouses is distinguished from failure in the parental role. On the other hand, the effect of violence directed at the child or at the other parent on the child’s safety and psychological state is not disregarded.
How is the child’s age assessed?
Age helps in understanding the need for care; it does not create an automatic custody tariff. The feeding and attachment needs of a baby are not the same as the educational continuity of a school-age child. Besides age, the court should investigate the child’s individual development and how care is in fact provided.
Infancy and early childhood
Feeding routine, sleep, health checks and the bond with the person providing continuous care are particularly important in this period. Concrete needs such as breastfeeding may be included in the assessment. However, young age does not prevent an investigation of a safety risk or a serious deficiency in care.
How the relationship with the other parent will be maintained in this period is also a separate matter. The duration of contact and overnight stays must be arranged according to the child’s needs. It would not be appropriate to propose the same schedule of days and hours for all babies.
School age and adolescence
School attendance, travel time, homework support, the circle of friends and sibling relationships gain importance. If one of the parents proposes moving to another city, not only the better housing but also the effect of the change on education and relationships must be explained.
The views of a child who has reached sufficient maturity are heard and assessed. There is no statutory rule such as “a child chooses at eight” or “after twelve the judge cannot interfere.” The reasons for the child’s preference, its consistency, and whether it was formed under pressure are important. The responsibility of deciding is not placed on the child. [1, 4]
Why does the actual care arrangement matter?
Who takes on the care of the child cannot be understood merely by looking at who lives in the same home. How different responsibilities such as meals, communication with the school, health, sleep, play and emotional support are shared is examined. The parent’s concrete plan after the separation should be assessed as well as the parent’s past contribution.
For example, in a hypothetical family in which both parents work, one may have fixed working hours and regular care support after school. The other, even with a higher income, may need an additional care plan because of frequent travel. This example does not show that the first parent will necessarily obtain custody; it makes visible the facts that need to be compared.
Support from a grandmother, grandfather or caregiver
Receiving support from close relatives cannot be equated with abandoning the custodial responsibility. The duration and reliability of the support, the child’s bond with these persons, and whether the mother or father continues to manage the care are important. A parent’s failing in fact to attend to the child and leaving all responsibility to someone else is assessed differently.
In a care plan, instead of saying “my mother will look after the child,” it is more useful to explain on which days the support will be provided, the circumstances of that person and the parent’s daily responsibilities. This information can, where necessary, be assessed through expert examination and witnesses with direct observation.
Can a mother who works, or who has no income, obtain custody?
Neither working nor having no income is an obstacle on its own. For a working mother the care arrangement is investigated, and for a mother who does not work, the housing and the conditions for meeting the child’s expenses. The same assessment applies to the father. The other parent’s contribution to the child’s care expenses may be regulated separately within the provisions on maintenance (nafaka). [1]
In the decision of the 2nd Civil Chamber of the Court of Cassation (Yargıtay 2. Hukuk Dairesi) dated December 5, 2011, E.2010/21365, K.2011/20978, the mother’s employment and the use of the maternal aunt’s support in caring for the child were assessed. It was not considered correct to grant custody to the father on the ground of this work and care arrangement without it having been shown that the mother failed to perform her custodial duty properly. [2]
The decision is old and specific to its own facts. It does not follow that “a working mother obtains custody in every case.” The importance of the decision for this article is that employment and support from relatives do not, on their own, prove inadequate care. In a current file, the child’s age, the nature of the existing care and the circumstances of both parents are examined anew.
Under what conditions can the father obtain custody?
The father can obtain custody when he is able to offer a care and living arrangement that suits the child’s interest. The assessment cannot be made to depend solely on the mother having made a serious mistake. The bond established with the child, the continuity of care and the meeting of the child’s needs are directly important.
In the decision of the 2nd Civil Chamber of the Court of Cassation dated February 16, 2015, E.2014/17180, K.2015/1887, the child had been staying with the father before the action and during the proceedings. Taking the mother’s lack of interest and the living conditions provided by the father together, leaving custody with the mother was not considered correct. [3]
This decision does not show that the mother’s not working produces a loss of custody on its own. The file also contains the fact that actual care was with the father and an assessment of lack of interest. Taking only the part “the father’s economic situation is better” from a decision and applying it to all families narrows the reasoning of the decision.
How should decisions favoring the mother and the father be read together?
| Decision | Distinguishing fact | Limited conclusion that can be drawn |
|---|---|---|
| 2nd Civil Chamber, December 5, 2011, E.2010/21365, K.2011/20978 | The working mother receives support from a close relative; it cannot be shown that she neglected her duty | Work and support from a close relative are not, on their own, inadequacy |
| 2nd Civil Chamber, February 16, 2015, E.2014/17180, K.2015/1887 | The child is with the father; the mother’s lack of interest and the existing care conditions are assessed | Actual care and the interest shown to the child may affect the outcome |
| 2nd Civil Chamber, March 13, 2025, E.2024/7439, K.2025/2682 | There is a time gap between the earlier report and the current developmental conditions | Old data should not be relied on without investigating the new conditions |
These decisions do not form a single pattern in favor of either the female or the male parent. They show that different facts may lead to different results. For this reason, as well as the date and result of a decision, the event on which it was given should be examined.
Do fault in the divorce, a new relationship or remarriage determine the outcome?
The purposes of the assessment of fault in divorce and the assessment of custody are different. The effect of conduct on the relationship between the spouses may not be the same as its effect on the care of the child. Custody should not be used as a reward or a punishment for fault in the divorce.
A new relationship or remarriage also does not, on its own, mean loss of custody. TMK Art. 349 expressly provides that remarriage does not require the removal of custody. However, the persons in the new home environment, their approach to the child and the safety conditions may be examined in concrete terms. [1]
The same care is needed where a health problem or psychiatric treatment is alleged. Instead of the name of a diagnosis, current functioning, the continuation of care, and the treatment and support conditions should be investigated. Spreading unrelated health documents or using stigmatizing expressions does not contribute to the child’s interest.
What happens if the child’s views and the report conflict?
Where the child prefers one parent and the expert report proposes a different arrangement, the reasons for the contradiction are investigated. The way the views were obtained, how they changed over time, the child’s reasons and the observations in the report are assessed together. The court should reach a reasoned result instead of applying the preference automatically or disregarding it entirely.
The emphasis on currency in the Court of Cassation decision of March 13, 2025 is a guide here as well: in long-running files, the child’s maturity, home environment or care relationships may change. A request for a current examination should be made by explaining which change affects the assessment. [4]
Having the child memorize what to say in court, forcing the child to choose a parent, or having the child read messages that disparage the other parent is not an appropriate way to prepare. The parent’s duty is to support safe conditions in which the child can freely express his or her thoughts.
What can be prepared to support a custody request?
Preparation should explain how care is carried out, rather than being a general narrative blaming the other parent. A timeline may show the places where the child has lived, school and health needs, changes in care and, if any, events that pose a risk. The date of each event and the source from which it can be verified should be set out.
- A realistic weekly plan showing daily care and working hours can be prepared.
- The necessary documents on school, health and support needs can be set aside.
- Which event each person with direct observation knows about can be identified.
- Existing court decisions and the personal contact arrangement can be examined together.
- If there is a safety problem, the risk and the protection requested can be clearly explained.
Documents must be obtained by lawful means. Entering accounts to which one has no authority of access, or systematically recording private conversations, is not a risk-free way to collect evidence for a custody request. The admissibility of the evidence is assessed separately.
Conclusion
Whether custody will be given to the mother or the father is assessed by making concrete the care arrangement that suits the child’s needs. Instead of firm outcomes based on age, income or sex, the emphasis should be on daily care, safety, continuity and the child’s views. For the file in which the application will be made and the stages of the proceedings, the main guide to the custody lawsuit may be consulted.
Related articles: Temporary Custody: Measures That Can Be Taken for the Child in a Divorce Case and During Separation; The Child’s Views in a Custody Lawsuit: At What Age Is a Child Heard, and Does the Preference Determine the Decision?; The Social Investigation Report in a Custody Lawsuit: Expert Interview, Home Visit and Objection to the Report.
Frequently Asked Questions
Is it possible for a mother who does not work to obtain custody?
Yes. The absence of regular income is not an obstacle on its own. The care and housing conditions and the other parent’s contribution to the child’s expenses are assessed together.
If the father’s home or income is greater, is the child given to him?
This does not produce an automatic result. Economic conditions are important; however, they are considered together with care, emotional bond, safety and the education arrangement.
Can a young child never be given to the father?
There is no such absolute rule. The care needs that come with young age and the child’s concrete circumstances are examined.
If a grandmother looks after the child, does the mother or father lose custody?
Support from close relatives is not a sufficient reason on its own. Support is distinguished from leaving parental responsibility entirely; its effect on the child is investigated.
Can siblings be given to different parents?
Preserving the sibling bond is an important element of the assessment. However, the circumstances and best interests of each child are examined separately; no firm result covering every file can be given.
Sources and legal bases
- Law No. 4721, the Turkish Civil Code (Türk Medenî Kanunu), in particular Arts. 182, 183, 323–324, 335–340 and 349. Ministry of Justice legislation record.
- Court of Cassation 2nd Civil Chamber (Yargıtay 2. Hukuk Dairesi), December 5, 2011, E.2010/21365, K.2011/20978. Text of the decision.
- Court of Cassation 2nd Civil Chamber, February 16, 2015, E.2014/17180, K.2015/1887. Text of the decision.
- Court of Cassation 2nd Civil Chamber, March 13, 2025, E.2024/7439, K.2025/2682. Text of the decision.