If the mother and father are not married, custody of the child belongs, as a rule, to the mother under Article 337 of the Turkish Civil Code (TMK). Recognition of the child by the father, or a court determination of paternity, does not by itself transfer custody to the father. However, where the mother is a minor, is under legal restriction or has died, or where her custody has been removed, the judge may grant custody to the father or appoint a guardian, according to the child’s best interests. What is decisive is not a value judgment about the parents’ marital status but the child’s safe care and legal protection. [1]
Birth out of wedlock does not reduce the child’s rights to care, education, protection and maintenance. In practice, problems often arise because lineage, custody and personal contact are treated as if they were the same right. Yet the establishment of paternity, the question of who holds the authority to represent the child, and the way contact with the father will take place are separate questions. This article addresses the basic framework under Turkish domestic law; in files with a foreign element, the applicable law must be researched separately.
Who has custody of a child born out of wedlock?
Does the mother need to file a separate action to have custody?
Under the conditions of TMK Art. 337, custody arises by operation of law. The absence of a marriage between the mother and the father does not require the mother to file a separate custody action for that reason alone. Nevertheless, if there is a concrete dispute, a problem in the population register or an existing court decision, the relevant records and decisions must be examined. The fact that day-to-day care has been left to a relative in practice does not show that the authority of custody has been transferred to that person.
Custody covers the child’s legal representation as well as decisions on care and education. This authority is not an unlimited sphere of disposition for the parent. The child’s development, views and need for protection must be taken into account; decisions on health, school and living arrangements must rest on the child’s benefit. A dispute between the parents cannot justify distancing the child from the other parent as a punishment.
What happens if the mother is a minor or under legal restriction?
The law regulates these situations separately from the ordinary rule. If the mother is a minor or a restriction order has been issued against her, the judge considers, according to the child’s interests, either granting custody to the father or appointing a guardian. The fact that the mother’s family is looking after the child does not mean that the grandmother or grandfather automatically becomes the legal guardian. The mother’s own need for representation and the representation of the child must be addressed separately.
Likewise, in the event of the mother’s death or the removal of her custody, the father’s legal position and capacity to provide care are assessed. No automatic result can be established among these options. The father’s existence is not enough on its own, just as the absence of a marriage does not bar custody being granted to the father from the outset. [1]
Does recognition by the father or a paternity judgment change custody?
Establishing lineage and granting custody are different things
Recognition is an act that establishes lineage in compliance with the form and conditions set by law. A paternity judgment can likewise establish a legal bond between the child and the father. Their consequences include the obligation of care and other family-law relationships; however, the custody regime under TMK Art. 337 does not change automatically. The assessment “I registered the child in my household record, so custody has passed to me” is therefore incorrect.
For the father’s custody request, the state of legal lineage must first be clarified. Where the child already has a lineage with another man, it should not be assumed that a new lineage can be established without resolving the legal consequences of the existing one. Population records, the recognition document or a final paternity judgment are important in this examination. The parties, representation and time-limit requirements of actions for denial of lineage and paternity actions differ from those of a custody action. [1]
If the mother and father marry later
The subsequent marriage of the mother and father is assessed together with the provisions beginning at TMK Art. 292. For as long as the marriage continues, the rule of TMK Art. 336 on the joint exercise of custody comes into play. However, if a removal, guardianship or protection order has previously been issued, it cannot be said that all of those orders cease to have effect solely on the basis of the marriage certificate. The records and the existing measures must be submitted to the court.
Parents living together without marrying, on the other hand, does not produce the same legal result as marriage. In daily life it is possible for decisions to be made together; but a de facto agreement does not change the source of the statutory authority of representation. In school enrollment, consent to treatment and official applications in particular, it must be clear which document the authority rests on.
Under what conditions can the father seek custody?
The mother’s inability to provide care must be substantiated
If it is claimed that the mother is unable to perform her custodial duty, the claim must rest on concrete facts. The child being left unsupervised for a long time, the child’s educational and health needs being seriously unmet, or the child’s safety being endangered can be investigated through the relevant documents. The mother’s working, having a low income or receiving help from her family is not, on its own, evidence of inadequate parenting.
For the removal of custody, the conditions of TMK Art. 348 and the sufficiency of lighter measures are assessed separately. It would not be right to resort directly to the most severe intervention when support or another measure capable of protecting the child is possible. The details of this distinction are explained in the article on removal and restoration of custody.
The father’s care plan is also examined
The request should not rest only on describing the mother’s unfavorable circumstances. Where the father will live, his working hours, the child’s school routine, access to health needs, the support of the immediate circle and how safe personal contact with the mother will be maintained must also be explained. A higher income or a larger home does not by itself determine the child’s best interests.
The child’s views take part in the assessment to the extent that age and maturity allow. Pressuring the child to choose a parent or teaching the child ready-made statements makes a sound examination more difficult. When the social investigation covers both living environments and the continuity of care, the concrete grounds of the decision become clearer.
What distinctions do the Court of Cassation decisions show?
A guardianship outcome cannot be reached directly without investigating the father’s suitability
In its decision of 28.06.2016, E.2016/13524, K.2016/12659, the 2nd Civil Chamber of the Court of Cassation (Yargıtay) assessed together, for a child born out of wedlock, the mother’s failure to perform her duty of care and the father’s circumstances. The file states that the father had recognized the child, was involved with the child and that the expert assessment was favorable. The Chamber did not consider it appropriate, on the facts, to proceed by way of guardianship where custody should have been granted to the father. [2]
The outcome of this decision is not that “every father who recognizes a child obtains custody.” In the decision, the facts requiring the removal of the mother’s custody and the father’s suitability are present together. Applying the outcome exemplified in this article to another file depends on the same legal conditions and the child’s best interests being established in that file as well.
When the mother dies, the father’s request is assessed in the family court
In its decision of 04.06.2020, E.2020/920, K.2020/1579, the 20th Civil Chamber of the Court of Cassation dealt with the father’s custody request for a child born out of wedlock whose mother had died and for whom guardianship had previously been arranged. The decision concerns the determination of the competent judicial forum and shows that the family court is the competent court. [3]
This decision should not be presented as a judgment on the merits in which custody was granted directly to the father. The child’s being under existing guardianship does not remove the need to investigate the legal nature of the father’s request. Nevertheless, the competent court decides which care arrangement is appropriate on the evidence in the file.
How are custody, the right of contact and maintenance distinguished?
| Subject | Basic question | Result for a birth out of wedlock |
|---|---|---|
| Lineage | Who is the parent in law? | Recognition, the paternity judgment and population records are examined. |
| Custody | Who holds the authority of care and representation? | The rule is the mother; the exceptions in TMK Art. 337 are assessed separately. |
| Personal contact | How does the child meet the other parent? | Regulated separately, on the basis of the child’s best interests and safety. |
| Maintenance | Who contributes to the child’s expenses, and to what extent? | Not holding custody does not by itself remove the obligation of care. |
| Guardianship | Who represents the child if the child is not under custody? | The appointment of a guardian under the statutory conditions comes into play. |
The father’s not holding custody does not mean that he cannot request personal contact with the child. Under the provisions beginning at TMK Art. 323, the child’s age, school schedule, the distance between the parties and the child’s safety are taken into account. The contact arrangement is set up not to maintain the relationship between the mother and the father but to preserve the bond between the child and the parent.
Non-payment of maintenance and obstruction of contact are not legal equivalents of each other. One party’s failure to perform its obligation does not by itself justify the other party’s restricting the child’s right. Collection and the implementation of personal contact must be pursued through their own legal avenues. In the enforcement of an existing contact order, the current judicial support system on the delivery of the child and personal contact is taken into account. [4]
Which documents matter when preparing the action?
In the first stage, the population family records, the recognition document if any, the paternity judgment and its finality information, and earlier decisions on custody or guardianship should be gathered together. These documents show the legal lineage and the existing representation arrangement. After that, the school, health and living-condition records showing who in fact has been providing care are assessed.
For the alleged neglect or danger, the dates of the events and their concrete effects must be explained. Correspondence obtained lawfully, relevant institutional records and witnesses with direct knowledge of the events can be useful. Producing evidence by accessing a private account without permission, by covert surveillance or by repeatedly questioning the child should be avoided. Personal data submitted to the file should be limited to what is relevant and necessary for the dispute.
The competent court is, as a rule, the family court; where there is no family court, the civil court of first instance (asliye hukuk mahkemesi) designated in that capacity sits. Jurisdiction by place must be examined separately, depending on whether the request concerns custody, lineage, maintenance or personal contact, and on the claims brought together. It should not be assumed that a single jurisdiction rule applies to every request concerning the same family. [5]
If the interests of the child and the person representing the child conflict, the need for a representative curator (kayyım) may arise under TMK Art. 426. A parent’s presence in the action does not in every case remove the child’s need for independent representation. Where a dispute over lineage and a custody request arise together in particular, party standing and the representation question should be checked from the outset.
Can the mother and father transfer custody by agreement?
A document drawn up at a notary or a private contract between the parties does not replace the judicial assessment that the law requires. The parents’ agreement is valuable for the workability of the care plan; but custody is not a property right that can be freely transferred. The judge assesses the child’s best interests independently.
Similarly, allowing the child to stay for a period with the father or the grandmother does not in every case mean a permanent change of custody. The duration of the temporary care, school and health decisions, the manner of communication and the authority of representation should be clarified. Where the de facto situation and the legal authority diverge, making a suitable application without delay prevents disruption to the child’s transactions.
Conclusion
For a child born out of wedlock, the starting rule is custody by the mother. While recognition by the father or a paternity judgment establishes lineage, it does not on its own satisfy the assessment required for custody. Where the mother is in one of the situations stated in the law, whether custody is granted to the father or guardianship is established is decided on the basis of the child’s concrete best interests.
A successful file preparation takes together the lineage documents, the existing court decisions, the real functioning of care and a workable plan for the future. Bearing in mind that personal contact and maintenance are separate rights and obligations reduces the risk that the dispute between the parents harms the child’s life.
Related articles: What Happens to the Care of the Child upon the Death, Illness or Imprisonment of the Parent Holding Custody?; Custody Lawsuit: Custody of the Child, the Court’s Criteria and the Litigation Process.
Frequently Asked Questions
If the father recognizes the child, does custody automatically become joint?
No. Recognition concerns lineage. If the mother and father are not married, the custody rule of TMK Art. 337 is the basis; it cannot be said that joint custody results from the act of recognition alone.
Is the mother’s not being married a reason to lose custody?
No. For a mother and father who are not married, the law already provides, as a rule, for the mother’s custody. Any intervention must rest on the statutory grounds relating to the protection of the child, not on judgments about marital status.
If the mother dies, does the child necessarily stay with the grandmother?
No. De facto care is different from custody or guardianship. The conditions for custody on the father’s side and the child’s best interests are assessed; where necessary, a guardian is appointed.
If the father does not hold custody, does he not pay maintenance?
Not holding custody does not remove the obligation of care. The obligation to contribute to the child’s expenses is assessed within the framework of lineage and the other legal conditions.
Is a notarized document on the child staying with the father sufficient?
A private agreement does not replace a change of custody that requires the court’s assessment. The document may show the will of the parties; the authority of representation and the custody outcome are examined separately.
Sources
- Law No. 4721, the Turkish Civil Code, in particular Arts. 282, 292, 295, 301, 323–324, 327–337, 346–351 and 426.
- Court of Cassation 2nd Civil Chamber, 28.06.2016, E.2016/13524, K.2016/12659. Assessment limited to the facts, based on the full text.
- Court of Cassation 20th Civil Chamber, 04.06.2020, E.2020/920, K.2020/1579. Decision determining the judicial forum.
- Ministry of Justice: Frequently Asked Questions on the Process of Delivery of the Child and Establishing Personal Contact with the Child.
- Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts, Arts. 2 and 4.