Which custody disputes involve a foreign element?
One parent being a foreign national is the most visible example. However, even where the mother, the father and the child are all Turkish citizens, the fact that the child has lived in another country for years may also raise questions of international jurisdiction and applicable law. The same inquiry is needed where the child of two foreign parents attends school in Türkiye, where a custody decision has been made in another country, or where the child has been taken across a border.
At the outset of the file, the nationalities, the child’s birth and residence history, the actual care arrangement, earlier decisions and any foreign proceedings still pending should be established. A residence permit, population registration and a passport are important; but no single one of them answers all the legal questions. Nor does a decision on the child’s custody automatically resolve a foreigner’s residence permit or citizenship status.
Is the 1996 Hague Convention or MÖHUK examined first?
Article 1(2) of Law No. 5718 on Private International and Procedural Law (Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun, MÖHUK) reserves the international conventions to which Türkiye is a party. For this reason, it is first determined whether the dispute falls within the personal, subject-matter, territorial and temporal scope of the relevant convention. The 1996 Hague Convention entered into force for Türkiye on 1 February 2017. It establishes a broad system on the protection of children and parental responsibility. [1] [2] [3]
That the Convention covers custody, personal contact and protective measures for the child does not mean that it also regulates every question concerning divorce, the establishment of parentage, maintenance or immigration. Each of these subjects has its own scope and connecting rules. It is therefore possible for more than one legal instrument to apply within a single file concerning the same family.
What should be checked in the status table?
A country having signed the Convention is not the same as its having entered into force. On the date of the application, the information on entry into force, territorial scope, reservations and declarations should be checked; and, for States that are party by accession, the required conditions of mutual application. That the child’s habitual residence is in a non-party country does not automatically displace all provisions of the Convention. Urgent measures and certain provisions on applicable law may be assessed separately. [2]
In the literature, Ulusu Karataş likewise explains that the geographical application of the Convention cannot be reduced to a single question of whether both countries are parties, and that the provisions on jurisdiction, applicable law and recognition have separate scopes. This distinction is particularly important for children living in non-party countries. [4]
How is the child’s habitual residence determined?
Habitual residence refers to the place where the child’s life is actually centred. School and nursery attendance, caregivers, health services, the social environment, the regularity of the stay and the organisation of family life are assessed together. For a young child, the weight of the daily bond with the caregiver may differ; for a school-age child, the educational routine and social relationships gain additional importance.
Moving the address registration to Türkiye or the child’s holding a Turkish passport does not by itself make Türkiye the centre of life. Likewise, the fact that a home has been rented in a foreign country does not by itself determine the outcome if the child has not yet established a regular life there. A holiday, a temporary visit, a stay for health reasons and permanent settlement are different things. No fixed six-month or one-year assumption should be applied to every case.
Which documents can show the centre of life?
School attendance records, a nursery contract, health and vaccination records, the housing arrangement, travel dates, the parents’ working hours and the child’s care history may be submitted together. What matters is not only the number of documents but which period and which fact each shows. A record created only immediately before the action was filed may not carry the same weight as a pattern of life that extends over many years.
Where the other side argues that “they came here only for a holiday”, the return ticket, leave from school, the written purpose of the trip and earlier plans are examined. If the other side claims that permanent settlement was agreed, it must show the concrete steps taken regarding housing, school and work arrangements. The lawfulness of the child’s removal is also a separate matter of examination; the place where the child actually is and the place that is legally competent do not always coincide.
Which country’s court hears the custody case?
The basic rule of Article 5 of the 1996 Hague Convention is the jurisdiction of the authorities of the Contracting State in which the child is habitually resident. In addition, there are separate provisions on wrongful removal or retention, the assumption of jurisdiction by another authority, the special jurisdiction of the divorce court under particular conditions, and urgent measures. Without examining these exceptions, the conclusion “the child is in Türkiye at the moment, so only the Turkish court has jurisdiction” cannot be reached. [2]
| Family and living arrangement | First point of examination | Fact that is not sufficient alone |
|---|---|---|
| Turkish and foreign parent; child resident in Türkiye | Habitual residence, scope of the Convention, earlier decisions | The foreign parent’s nationality |
| Two foreign parents; child resident in Türkiye | Jurisdiction of the Turkish authorities under the Convention | Both parents being foreign |
| Turkish parents; child resident in another Contracting State | That State’s basic jurisdiction and the exceptions | Population registration in Türkiye |
| Child has come to Türkiye for a short visit | Nature of the visit; any need for urgent protection | Physical presence in Türkiye |
| Child taken without permission or not returned | Article 7 and, where available, the 1980 Hague return route | Registration at the new address |
Does a divorce action in Türkiye also give jurisdiction over custody?
Not always. If the child has habitual residence in another Contracting State, the special conditions in Article 10 of the 1996 Convention are examined. Conditions such as one of the parents having habitual residence, at the start of the proceedings, in the country where the divorce action is brought, one of the parents having parental responsibility, the acceptance of jurisdiction by those holding the relevant responsibility, and its being in the best interests of the child are significant together. This jurisdiction is subject to limits connected with the end of the divorce proceedings.
Accordingly, writing “all disputes shall be heard by the Turkish courts” in a protocol does not create unlimited international jurisdiction. Jurisdiction concerning the protection of the child cannot be freely arranged in the way a choice of court can in an ordinary commercial contract. The acceptance of jurisdiction or its transfer to another State has effect only within the conditions of the relevant legal framework.
When do Articles 40 and 41 of MÖHUK become important?
In the assessment of jurisdiction outside the applicable provisions of conventions, Article 40 of MÖHUK refers to the domestic rules on territorial jurisdiction. Article 41, concerning the personal status of Turkish citizens, applies under its own conditions, such as no action having been brought, or being unable to be brought, in a foreign court, and with its graduated territorial connections. The courts of Ankara, İstanbul or İzmir are not the first and free option in every international family case.
For two foreign parents, Article 41 cannot be used simply because the dispute relates to family law. On the other hand, to say that “custody actions of foreigners cannot be brought in Türkiye” is also wrong. International jurisdiction, the competent court within Türkiye (subject-matter jurisdiction) and territorial jurisdiction must each be determined separately. In places where there is no family court, the relevant civil court of first instance (asliye hukuk mahkemesi) acts in the capacity of a family court. [1] [5]
Which country’s law does the competent court apply?
The authority that takes a protective measure under the jurisdictional provisions of the 1996 Convention, as a rule, applies its own law under Article 15. If the protection of the child requires it, the law of another State with which the situation has a substantial connection may exceptionally be applied or taken into account. For this reason, a custody measure taken by a Turkish court on the basis of its jurisdiction under the Convention is not necessarily subject to foreign law merely because the parents are foreign.
However, the arising of parental responsibility by operation of law without a court decision, and the exercise of that responsibility, are subject to different provisions. Articles 16–17 of the Convention contain separate rules based on the child’s habitual residence. Protective measures, the arising of responsibility and its day-to-day exercise should not be explained by a single connecting rule. [2]
Are the divorce and parentage provisions of MÖHUK left entirely without function?
No. The provisions of MÖHUK continue to be examined for matters and situations outside the scope of the Convention. Article 14(3) of MÖHUK connects custody within a divorce to the law applicable to the divorce; Article 17 establishes a different regime for the effects of parentage. Which provision applies is assessed once the nature of the claim and the first-applicable convention provisions have been determined.
If foreign law is to be applied, the judge investigates its content of their own motion and may request assistance from the parties. Under Article 2 of MÖHUK, if foreign law cannot be established despite the necessary research, Turkish law is applied. That one party has not submitted a translation does not justify reaching this result without conducting research. The current statutory text, transitional provisions and the relevant foreign practice should be established from reliable sources. [1]
Can custody be granted to a foreign mother or father?
Citizenship alone is not the measure of parental capacity. The continuity of the child’s care, safety, development and relationship with the other parent are assessed concretely. The foreign parent’s residence status, working arrangements, language support and the conditions of the place where they will live matter to the extent that they are connected with the care plan; they cannot be turned into an abstract superiority of nationality.
Single-reason inferences such as “the child must stay in Türkiye because the child is Turkish” or “custody must be given to the parent living in the foreign country because income there is higher” are insufficient. The child’s bilingual education, relationship with relatives, access to health services and cultural ties must be assessed according to their real effects on the child’s own life.
A cross-border care arrangement in the Court of Cassation’s 2024 decision
The decision of the 2nd Civil Chamber of the Court of Cassation (Yargıtay 2. Hukuk Dairesi) of 28.03.2024, E. 2024/617, K. 2024/2202, concerns a divorce file in which the parents lived in different countries. The regional court of appeal (bölge adliye mahkemesi) assessed the arrangement to which the children were accustomed with the mother, the difficulties that joint custody would cause in the specific case, and the differences in holiday periods between the countries; it rearranged the schedule of personal contact. The Court of Cassation upheld the decision. [6]
The decision is not a ruling that prohibits joint custody for all parents living in a foreign country, or that makes the same contact schedule mandatory in every file. It should also not be read as a general jurisdictional decision on the 1996 Convention. What it shows in practice is that, in cross-border families, the care and contact arrangement must be made concrete with regard to the school calendar, health and distance.
If the child is in Türkiye, can an urgent protective measure be taken?
Article 11 of the 1996 Convention gives the authorities of the Contracting State in which the child or the child’s property is present the power to take necessary protective measures in cases of urgency. This does not mean unlimited and permanent jurisdiction over the merits of custody. The reason for the urgency, the nature of the danger and the interest to be protected by the requested measure must be explained. The child’s presence in Türkiye does not mean that the whole custody dispute will be resolved here when the principal jurisdiction lies in another country.
Where there has been wrongful removal or retention, the provisions of Article 7 on the continuation of jurisdiction are also important. An application for return under the 1980 Hague Convention is likewise not an action that directly determines which parent should be given custody of the child. The purpose of the return process and that of the custody action on the merits are different. A request for protection should not be regarded as a tool that automatically nullifies the return proceedings.
How are service abroad, translation and foreign documents planned?
The correct address of the other party abroad, the language to be used and the applicable service procedure should be researched at the outset. Proper service is important not only for the progress of the file but also for the recognition of the decision in another country. The fact that the action has been mentioned in an e-mail or message should not be used as though it replaced official service in every case.
For foreign school and health records, the issuer of the document, its date, the period it covers and the accuracy of the translation are checked. Whether certification or legalization is required is determined according to the procedure in which the document will be used and the convention in force. In particular, for documents sent under the 1996 Convention, the exemption from legalization in Article 43 should be taken into account; preparing an automatic apostille list for every document is not correct.
Temporary or final decisions made in another country and pending proceedings must not be concealed. The issues of concurrent proceedings under Article 13 of the Convention and the continuation of existing measures under Article 14 are investigated. The date of the earlier decision, its ground of jurisdiction, its enforceability and whether it was later modified affect how the new request is framed.
Which questions should be answered before filing an action?
First, the child’s life over recent years should be set out in chronological order. It is established in which country the child lived and for how long, who provided care, how the relocation was decided and what decisions are in force. Then the substantive custody claim, interim protection, personal contact and, if necessary, the return application are separated from one another.
The need to use a decision made in Türkiye in another country should also be considered at the outset. A clear ground of jurisdiction, the hearing of the parties and of a child of suitable age and maturity, a workable schedule and a complete copy of the decision gain importance at a later stage. It is not enough to find a country in which an action can merely be brought; the decision must be capable of being applied in the child’s real life.
Conclusion
In a cross-border custody file, citizenship, the centre of life, jurisdiction and applicable law must be determined separately. The scope of the conventions should be examined first and, where necessary, the provisions of MÖHUK should then be consulted. An orderly file showing the child’s life history, the existing decisions and any urgent needs both reduces the risk of filing in the wrong country and strengthens the workability of the care arrangement to be established.
Frequently Asked Questions
Does the child being a Turkish citizen make the Turkish court competent?
Not by itself. Habitual residence and the applicable convention provisions are examined. Although Turkish citizenship matters in some assessments of jurisdiction or connection, it is not a general and unlimited ground of jurisdiction.
Can two foreign parents bring a custody action in Türkiye?
Yes, if the applicable conditions of jurisdiction are met. The child’s centre of life in Türkiye and the provisions of the Convention are important. Article 41 of MÖHUK, which concerns Turkish citizens, is not automatically applied to all foreigners.
Must one live somewhere for six months to acquire habitual residence?
There is no fixed period rule of this kind valid for every case. The nature of the stay, care, education and the social environment are assessed together. A temporary visit is distinguished from a permanent life arrangement.
If the divorce is heard in Türkiye, is custody necessarily heard here too?
No. International jurisdiction for custody is examined separately. Where the child lives in another Contracting State, special conditions such as those in Article 10 of the 1996 Convention may come into play.
Is it enough to bring the child to Türkiye and register the address?
It is not enough. The lawfulness of the removal, the former centre of life and the rules on the continuation of jurisdiction are examined. An address registration does not by itself make a wrongful removal or retention lawful.
Who investigates foreign law when it is needed?
The judge investigates the foreign law to be applied of their own motion and may request assistance from the parties. It is useful for the parties to submit reliable sources and translations; the final legal assessment belongs to the court.
Sources and legal bases
1 — Law No. 5718 (MÖHUK), in particular Arts. 1–2, 14, 17, 40–41 and 47. Official text.
2 — HCCH, Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Velayet Sorumluluğu ve Çocukların Korunması Hakkında Tedbirler Yönünden Yetki, Uygulanacak Hukuk, Tanıma, Tenfiz ve İşbirliğine Dair Sözleşme); in particular Arts. 2–5, 7–17, 20 and 43. Official text of the Convention.
3 — HCCH, status table and entry into force of the 1996 Convention. The country, date, declarations and the position on mutual application should be re-checked in the specific application.
4 — Ayşe Elif Ulusu Karataş, “Velayet Sorumluluğu ve Çocukların Korunması Hakkında Tedbirler Yönünden Yetki, Uygulanacak Hukuk, Tanıma, Tenfiz ve İşbirliğine Dair 1996 Tarihli Lahey Sözleşmesi ve Türk Milletlerarası Özel Hukukuna Etkisi” [The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children and Its Effect on Turkish Private International Law], Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni, 37(2), 2017, pp. 911–1003; in particular pp. 917–918 and 973–974. Open-access article.
5 — Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts (Aile Mahkemelerinin Kuruluş, Görev ve Yargılama Usullerine Dair Kanun). Official text.
6 — Court of Cassation (Yargıtay) 2nd Civil Chamber, 28.03.2024, E. 2024/617, K. 2024/2202. Full decision record (access may require a session).