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Maintenance Cases

What Happens to Maintenance When Custody Changes? Actual Care, New Maintenance and Past Arrears

School bag between two house figures
Author: Published: About 12 min read

Institutional legal review and control: Güneş & Güneş Law Firm

Published by: Güneş & Güneş Law Firm

Summary

When does maintenance start after a change of custody? Actual care, interim payments, past arrears and child expenses are examined with reference to Court of Cassation decisions.

Changing custody requires re-evaluating which parent takes part in the child’s daily care and how the other parent’s financial contribution should be assessed. However, the child staying with the other parent for a period does not automatically erase the existing maintenance decision or the enforcement account. Actual care, the legal status of custody, the start date of new maintenance and past instalments must be examined separately. The right of a parent who factually cares for the child to claim maintenance on the child’s behalf is regulated in Article 329 of Law No. 4721 on the Turkish Civil Code (Türk Medeni Kanunu, TMK). [1]

Why are custody and maintenance assessed together?

The child’s best interests come first

Custody is not a privilege that one parent holds against the other. It concerns the child’s care, education, protection and development. Maintenance regulates the financial side of that responsibility. Under TMK Article 182, a parent who does not exercise custody contributes to the child’s care and education costs in proportion to their means. In calculating maintenance, the child’s needs, the living conditions of both parents and their capacity to pay are considered together. [1]

For this reason, when custody changes, it is not correct simply to transfer the old amount to the new obligor by changing the names. The child’s age, school costs, housing conditions and the parents’ economic situations are reconsidered. The fact that the parent receiving custody earns a good income does not make the other parent’s contribution unnecessary in every case; the measure of that contribution depends on concrete circumstances.

A new event and a court decision are not the same thing

TMK Article 183 regulates the measures to be taken where new circumstances, such as remarriage, moving elsewhere or death, make them necessary. The occurrence of one of these events does not, by itself, mean that custody changes automatically. The effect of the new circumstance on the child is examined. TMK Article 331 also allows maintenance to be redetermined or terminated when circumstances change. [1]

For example, if the parent with custody moves to another city, the child’s school routine and care facilities can be examined. However, if the maintenance debtor decides on the basis of that event alone not to pay subsequent monthly instalments, they may face a claim for debt based on the earlier judgment. The appropriate request must be submitted to the court and the scope of the new ruling determined.

The difference between a change in actual care and a legal change of custody

A temporary stay with the child does not always change the care arrangement

A holiday, a day of personal contact or a short period of health-related care with the other parent is not the same as the child living there permanently. The duration, who handled school and health procedures, who met daily expenses, and the conditions under which the arrangement was set up all matter. The claim should not be limited to the sentence “The child is with me now.”

On the other hand, the existence of actual care is not legally insignificant. TMK Article 329 gives a parent who factually cares for a minor the right to bring a maintenance action on the child’s behalf. This provision prevents the generalisation that a parent must already hold custody in order to claim maintenance. However, the start date of the specific claim, the status of the existing judgment and the legal nature of past expenses are examined separately. [1, 4]

SituationCore issue to examineResult that cannot be drawn on its own
The child is with the other parent during a holidayIs it temporary personal contact or continuous care?Automatic deletion of the maintenance for that month
The child lives permanently with the other parentProof of actual care and the scope of the new claimAutomatic change of the existing judgment
Custody is changed by a courtThe judgment, its finality and the start date of maintenanceAutomatic cancellation of every past instalment
School and health expenses are paid directlyThe type of payment and the conditions for counting it as maintenanceUnilateral deduction of every expense from the current debt

Which claims must be set out clearly in the same file?

The custody claim, past maintenance and new contribution must be separated

When a change of custody is requested in the petition, the financial consequences must also be clearly explained. The removal or revision of current maintenance, the other parent’s contribution under the new care arrangement, and the temporary need during the proceedings must be kept apart. The connection of child maintenance with public policy does not make it unnecessary to present the concrete facts and documents. [1, 4] This topic may also be guided by the article Reduction and Termination of Maintenance.

The date from which new maintenance claimed on the child’s behalf will start, and the periods for which the existing maintenance debt is disputed, must be stated clearly. The case number of the earlier file, the operative part of the judgment, information on finality and any ongoing enforcement file must be submitted. This prevents claims and payments made in different capacities for the same period from becoming confused.

Interim measures for the child’s care during the proceedings

While the custody case continues, the child’s school, health and housing needs continue. TMK Article 332 provides the legal basis for the necessary measures in a maintenance action and, where the conditions are met, for a temporary payment during the case. The scope of the monetary measure should be clarified together with any interim custody arrangement. [1]

This request does not mean that the final decision will necessarily be for the same amount. Current documents showing the temporary need for care must be submitted; maintenance already paid, expenses met directly and the newly requested amount must be clearly distinguished. An unclear calculation that could lead to duplicate collection for the same need of the child should be avoided.

From what date does new maintenance start?

The subject of the decision and the date in the ruling are decisive

Applying one of the options “the day the child moved”, “the day the action was filed” or “the day the decision became final” to all files is not correct. New child maintenance (iştirak nafakası) linked to a change of custody, an independent claim based on actual care, and interim measures during the proceedings do not rest on the same legal basis. The start date in the ruling and the effect of the existing judgment must be considered together. [1, 3, 4]

A separate period calculation is needed for past maintenance debt

Establishing a new arrangement does not automatically extinguish all instalments that arose under the earlier judgment. For each disputed instalment, it must be determined which decision was in force, whether payment was made, what the child’s care arrangement was and when any later judgment takes effect. The legal status of past instalments cannot be resolved merely by reference to the existence of a new custody decision.

For example, the child may have moved to the other parent in March, the action may have been filed in May and the decision given later. These dates show three different events. Rather than assuming that all expenses from March are automatically refundable, or that all past maintenance was automatically erased, the basis of each claim and the date in the decision should be examined separately.

How are actual care and expenses proved?

Regular records are more informative than a single photograph

School correspondence, attendance and transport information, health appointments, residence records and expense documents that show the child’s living routine can be evaluated together. Each document shows a different aspect of regular care. A residence record alone cannot always be taken to reflect real life, and a single photograph cannot be said to prove continuous care.

Correspondence between the parents may also help clarify the duration and any joint decisions. However, the method of obtaining evidence must be lawful. Unauthorised access to another person’s account, a publication that violates the child’s privacy or statements obtained through steering should not be used; a properly documented record and a request for investigation through the proper procedure should be used instead. Article 189(2) of Law No. 6100 on the Code of Civil Procedure (Hukuk Muhakemeleri Kanunu, HMK) prevents unlawfully obtained evidence from being evaluated. [2]

Document or investigationContribution to proof
School and transport recordsContinuity of daily care and transport arrangements
Health documents and appointment recordsActual exercise of care responsibility
Rent, expense and payment recordsThe type and period of expenses relating to the child
Income and asset investigationEach parent’s capacity to contribute
Existing decisions and enforcement statementsSeparation of obligations and payments for the same period

The child’s views must not be used as a financial bargaining tool

Where the child’s views must be taken, the assessment should be carried out by the competent authorities, having regard to the child’s age and maturity. Directing the child to make statements against the other parent, or drawing the child into a bargain of the form “If you stay with me, no maintenance will be paid”, does not resolve a care dispute. The maintenance calculation does not require the child to be drawn into the financial dispute between adults.

How should Court of Cassation decisions be read together?

The 2nd Civil Chamber decision of October 13, 2011

In decision E.2011/1602, K.2011/15750 dated October 13, 2011, the period during which the mother, who did not hold custody, cared for the child and the later change of custody were addressed. In the concrete case, the Chamber held that the prior care expenses could not be claimed from the father who held custody, and that the new child maintenance contribution should start from the date the custody-change ruling became final. It affirmed the judgment with correction. The decision included a moral-duty assessment regarding past care. [3]

This decision should be read within its own facts and form of claim. Saying that maintenance cannot be requested in every case of actual care, or that no interim protection exists, disregards the separate regulations in TMK Articles 329 and 332. Recovering a past expense and a forward-looking contribution claim on the child’s behalf are not the same thing.

The Civil General Assembly decision of November 17, 2022

In decision E.2020/95, K.2022/1550 of the Civil General Assembly of the Court of Cassation dated November 17, 2022, the amount of child maintenance was discussed. The decision explained the right of action of the parent who factually cares for the child under TMK Article 329; the child’s needs and the financial capacity of both parents under TMK Article 330; and the effect of changed circumstances under TMK Article 331. It also emphasised the connection of child maintenance with public policy. [4]

Beyond the declared income, profession, assets and other economic means were evaluated. The majority found appropriate the resistance decision (direnme kararı) that upheld the maintenance amount it had set. The amount in that decision is not today’s child maintenance tariff. The dissenting opinion, which found the amount high, should also be taken into account.

This decision does not concern the start date of a change of custody directly. It therefore cannot be claimed that it removed all the consequences of the 2011 decision. Read together, the two decisions show the need to identify the type of claim correctly and to make the child’s actual needs and the parents’ means concrete.

Conclusion

In custody and maintenance files, actual care, legal custody, interim measures and past debts must be explained separately. Stopping payments without seeing the existing judgment, or deducting from maintenance every expense paid directly, can escalate the dispute. The current status of the earlier maintenance, the amount of the new contribution and the start date must be clearly addressed, together with documents showing the child’s regular care and actual expenses.

Related articles: Salary and Pension Attachment for Maintenance: Deduction Rate, Priority and Objections; Can a Maintenance Decision Be Enforced Before It Becomes Final? Interim Maintenance, Divorce and the Distinction Between Appeal; What Happens to Maintenance If the Debtor or Creditor Dies? Accrued Claims and Heirs’ Liability.

Frequently Asked Questions

The child has started living with me; can I stop maintenance right away?

Payments cannot be automatically stopped without examining the effect of the actual change on the existing decision and enforcement. The new arrangement and the related claims must be clearly submitted to the court.

Can I claim maintenance on the child’s behalf when I do not hold custody?

TMK Article 329 gives a parent who factually cares for a minor the right to sue. The proof of care, the existing decision and the start date of the claim are assessed separately.

Are old debts erased when custody changes?

It cannot be said that all past instalments are automatically erased. The period, the payments and the effect of the new judgment are calculated separately.

Does the child staying with me during a holiday reduce maintenance?

Temporary personal contact and a continuous care arrangement are not the same thing. A holiday alone does not automatically reduce the existing instalment.

Does new maintenance always start on the filing date?

No. The legal nature of the claim, whether interim measures exist, and the start arrangement in the judgment are decisive. In decisions linked to a change of custody, finality may also be important.

Can temporary maintenance be requested while the custody case is ongoing?

The necessary measures for the child’s current needs and the conditions for a temporary payment under TMK Article 332 can be evaluated. The period requested and any existing payments must be explained.

Can I deduct the school fee I paid from maintenance?

Not every direct expense is automatically offset. The scope of the judgment, the purpose of the payment and the legal conditions for counting it toward maintenance must be examined.

If the parent receiving custody is wealthy, does the other parent’s contribution end?

Not automatically. The child’s needs, both parents’ capacity to pay and their care contribution are assessed together.

Does remarriage automatically change custody?

No. The effect of the new circumstance on the child and the necessary measures are evaluated. TMK Article 183 does not by itself provide for an automatic change.

Which documents should be prepared?

The existing judgment and enforcement records; documents on school, health and care arrangements; and records showing the child’s expenses and the parents’ financial means should be prepared together.

Sources and legal bases

  1. Law No. 4721 on the Turkish Civil Code (Türk Medeni Kanunu), particularly Articles 182–183 and 327–334. The relevant consolidated provisions were reviewed.
  2. Law No. 6100 on the Code of Civil Procedure (Hukuk Muhakemeleri Kanunu), particularly Articles 189–190, 194 and 367.
  3. Court of Cassation, 2nd Civil Chamber (Yargıtay 2. Hukuk Dairesi), October 13, 2011, E.2011/1602, K.2011/15750. Official full text; prior care expenses and the start date of maintenance linked to a change of custody.
  4. Civil General Assembly of the Court of Cassation (Yargıtay Hukuk Genel Kurulu), November 17, 2022, E.2020/95, K.2022/1550. Official full text; actual care, the child’s needs, financial capacity and the amount of maintenance.

AUTHOR

Av. Umut Güneş

Güneş & Güneş Law Firm

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