The Child in the Divorce Protocol of Turkish–Foreign Spouses: Custody, Personal Contact, Travel and Education Arrangements

Do the protocol's provisions on the child bind the judge?

The applicable law is determined first

That one spouse is Turkish and the other foreign does not mean that the divorce and all matters concerning the child are automatically subject to Turkish law. Article 1(2) of Law No. 5718 on Private International and Procedural Law (MÖHUK) reserves international conventions; Art. 14 regulates the connecting rules on the grounds and effects of divorce and on custody in divorce. If there is an applicable international convention for the child, its provisions on jurisdiction and applicable law are assessed separately. A protocol should not be prepared on the approach that "we are suing in Türkiye, so only Turkish law applies to everything."[2][3]

In an uncontested divorce where Turkish law applies, Art. 166(3) of the Turkish Civil Code (TMK) requires that the marriage has lasted at least one year, that the parties apply jointly or that one accepts the other's action, that the judge hears the parties in person and is satisfied that their will has been freely expressed. The arrangement must be found appropriate as regards the children's situation and the financial consequences. The judge may decide on an uncontested divorce if the parties accept the changes the judge considers necessary.[1]

A signature does not replace the child's best interests

A provision concerning the child is not approved automatically merely because it bears the parents' signatures. The judge assesses age, care needs, school arrangements, safety, relationships with the parents and the practicability of the plan. TMK Art. 184(5) also provides that agreements on the ancillary consequences of divorce are not valid without the judge's approval. A statement in the protocol that "the parties cannot request a change of custody in future" does not remove the judicial review aimed at protecting the child's interests when circumstances change.[1]

In practice, merely writing "the joint child will stay with the mother" is insufficient. It should be explained whether this expresses legal custody, daily residence or an interim care arrangement, and in which decisions and information the other parent will take part.

If the child lives in another country, is the Turkish court competent on every matter?

If the 1996 Hague Child Protection Convention applies, the basic connecting factor is the child's habitual residence; this concept is assessed on the basis of an actual and continuous pattern of life. Citizenship, population registration or a single address written into the protocol does not by itself resolve the whole question of jurisdiction. In wrongful removal or retention, the special jurisdictional protection of Art. 7 is also important.[3]

The divorce court's power to decide about the child

Article 10 of the Convention allows the divorce court, under certain conditions, to take a protection measure even though the child's habitual residence is in another Contracting State. The court's own law must permit this; when the proceedings begin, one of the parents must habitually reside in that State and at least one of the parents must have parental responsibility for the child. The jurisdiction must also be accepted by the parents and by the other persons who have parental responsibility, and must be in the child's best interests.[3]

The sentence "the parties have chosen the Turkish courts as competent" is therefore not in itself a sufficient basis of jurisdiction. The connecting points and the scope of the acceptance should be shown in the case file. Any foreign proceedings in progress should also be disclosed; Art. 13 should be assessed with regard to parallel applications.[3]

The same jurisdiction does not continue indefinitely after the divorce

The special jurisdiction based on Art. 10 ends when the divorce decision becomes final or the proceedings end for another reason. Protective measures taken earlier, on the other hand, may under Art. 14 continue to have effect on their own terms until they are modified by the competent authority, replaced by another measure or lifted. A statement in the protocol that ties all disputes years later to the same court does not remove this distinction.[3]

How should custody, place of residence and the parents' decision-making authority be separated?

The child section of the protocol should answer three different questions: Who bears legal responsibility; where will the child live day to day; and how will the relationship with the other parent be preserved? The use of the words joint custody does not show that the child's time will automatically be shared equally or that two signatures will be needed for every day-to-day act. The specific legal arrangement and the division of duties must be explained.[1][3]

Country of residence and address information

The country and city in which the child will live, the main living arrangement during the school term and how changes of address will be notified should be determined. If there is a protection order requiring confidentiality of the address, a general information-sharing provision cannot be framed in a way that removes this confidentiality. The notification channel and the limit of the information to be shared should be set according to the need for safety.[8]

Day-to-day decisions and important decisions

Day-to-day meals, sleep, homework and the usual activity routine should not be placed in the same decision category as changing school, long-term treatment or settling in another country. TMK Arts. 339–342 form the basic framework concerning the child's interests, upbringing, education and representation. The protocol should clarify the existing custody arrangement; it should not create independent powers contrary to the law and to the court's decision.[1]

Instead of a provision of unlimited scope such as "all matters are decided jointly," the matters to be discussed together, the channel through which information will be sent and the procedure to be followed in case of a dispute can be written separately. Treating silence as automatic approval can create serious uncertainty, particularly on important matters such as permanent relocation, surgery and a change of school.

How should a personal contact calendar be set up between two countries?

The date, time and handover place should be written together

Expressions such as "the father may see the child at appropriate times" or "half of the summer holiday is spent with the mother" create disputes under different school calendars and flight conditions. It should be determined whose announced holiday calendar of which school will be the basis, the start and end days, the time zone, the handover place and who will accompany the child.

For a parent living abroad, weekend contact every week may look equal in theory but may be impracticable because of travel time and cost. Holiday contact that is less frequent but of sufficient length may be assessed together with the child's age and needs. The calendar should be set up to suit the child's health, education and development before the parents' convenience.[1]

Video calls should be regulated in a supportive way

Video communication can be planned taking into account an age-appropriate duration, the child's wishes, school hours and the time difference between the countries. Provisions such as an obligation on a parent to be reachable all day or on the child to record every call are not a suitable starting point. Video contact should not be written as an option that automatically replaces face-to-face contact in every case where face-to-face contact is feasible.

A one-off calendar change and a change to the permanent arrangement should also be separated. A single holiday change accepted by e-mail should not be assumed to change automatically all future holidays or the court decision.

Are permission for a passport, a holiday trip and permanent relocation the same thing?

A passport application has its own rules

For an application for a Turkish passport, the Ministry of Foreign Affairs' consular information treats the consent of the person holding custody as sufficient after a divorce in which custody has been given to one parent. In a pending case, the application procedure varies according to whether there is an interim custody decision. This explanation should not be generalised in the same way to joint custody or to the child's foreign passport; the specific decision and the relevant document rules must be examined.[6]

The protocol may state who will keep the passport, when it will be handed over when necessary, how that parent will take part in renewal procedures and who bears the costs of the procedures. However, a provision that "the passport is handed to the other parent" does not by itself mean permission for the child to be kept in another country indefinitely.

The scope of consent to travel must be specific

For a specific trip, the country, the date range, the accompanying person, communication and the return arrangement can be set out. Consent to obtain a passport, and the consent and decisions required for travel or permanent relocation, must not be used in place of one another. The current document requirements of the countries of destination and transit, the consulate and the carrier must also be verified separately; a Turkish divorce protocol is not a universal travel document binding all border authorities in the same way.

Representative example: It has been agreed that the child will go to the country where the other parent lives for a three-week summer holiday. Saying before the return, "I have enrolled the child at school there, he or she is staying now," may go beyond the scope of the original holiday consent. Depending on the circumstances, a discussion of wrongful retention may arise under the 1980 Hague Convention. The law of the habitual residence before the child was taken or retained, and the custody rights actually exercised, are examined; not every delay is automatically treated as abduction.[4]

Additional questions must be answered in a relocation plan

If permanent relocation is contemplated, the new school, housing, health insurance, residence permit, transport cost and the relationship with the other parent should be addressed as a whole. Which country and conditions does consent to settlement cover; what is to be done if the plan does not materialise; which decision needs to change? Permissions written without answering these questions, unlimited in time and without a named country, increase the risk in enforcement.

How should school, health and information sharing be regulated?

Decision and cost are separate headings in education

Taking part in choosing a school, paying school fees and obtaining information from the school are different matters. The protocol may make concrete matters such as the language of instruction, continuing at the current school, giving advance notice of a change of school, and sharing report cards and important notices. Acceptance of a private school payment should not remain as unlimited acceptance of every future fee increase or all additional courses.

If the child is to continue schooling in one country while having contact with the parent in the other, absences and the exam calendar must be taken into account. The aim of supporting the child's language and cultural ties should not turn into rigid obligations that place on the child an additional burden unsuited to his or her age and programme. The measure of an education decision is the child's development and abilities.[1]

Emergencies and planned procedures in health should be separated

How the parents will communicate about regular treatment, medication information, health insurance and planned major interventions can be explained. A provision that emergency medical help would be held up until an e-mail reply comes from the parent in the other country cannot be drafted. The protection of the child and the law applicable to the necessary medical procedures are taken into account; giving information to the other parent at an appropriate time is planned for.

Information sharing does not mean unlimited account access. Access to health and school systems should be regulated taking into account the child's privacy and the rules of the institutions concerned. An undertaking between the parents to inform each other does not automatically widen the institutions' authority to give information.

How should maintenance, care and travel costs be shared?

TMK Art. 182 provides that the parent to whom custody is not left shall contribute to the child's care and education expenses in proportion to his or her means. In the protocol, regular maintenance and the school, health and travel expenses to be met separately should be separated. A calendar set up without making visible the extra costs arising from the child's travelling to another country can become unworkable.[1]

The payment amount, currency, payment day, account, transfer costs, documentation and method of increase should be specific. Items counted as extraordinary expenses, expenditures requiring prior consultation and urgent expenses can be dealt with separately. A provision that "all expenses are shared equally," if it does not explain the scope, the decision procedure and the time of payment, merely postpones the conflict.

Contact with the child should not be regulated as a tool to be suspended as a sanction for unpaid maintenance. Likewise, a dispute about personal contact cannot be written in as a reason for not contributing to the child's care expenses; each claim is assessed in its own legal route.[1]

The 1996 Hague Convention excludes maintenance obligations from its scope. The international enforcement route determined for the custody part of the protocol therefore cannot be carried over automatically to the maintenance part. The conventions on maintenance and domestic law should be examined separately according to the countries concerned and the type of claim.[3][5]

How are the child's views and the risk of violence reflected in the protocol?

The child is a rights-holder as much as the subject of the agreement

Under TMK Art. 339, the child's views must be taken into account in proportion to the child's maturity. This does not mean that the child is forced to choose the mother or father or that all responsibility is placed on the child. The needs learned in an age-appropriate manner should be considered in the school, travel, duration of contact and communication plan.[1]

Representative example: An adolescent child wants, instead of spending the whole summer in the other country, a split holiday arrangement that also protects exam preparation and friendships. A calendar the parents accepted years ago is not a sufficient answer by itself. A request for updating can be assessed by examining together the new educational need, the burden of travel and family relationships.[1]

A safety problem cannot be brushed aside with the words "lack of communication"

In an allegation of violence, threat or neglect, safe handover, escort, confidentiality of the address and, where necessary, restriction of personal contact should be assessed separately. Article 5 of Law No. 6284 allows measures such as supervision by an escort, restriction or removal of existing personal contact. The protocol must comply with protection orders in force; the parties' agreement does not replace the safety review.[8]

In the European Court of Human Rights judgment in I.M. and Others v. Italy, the failure to conduct contact in accordance with the protection conditions laid down and the failure to assess properly the risks that were reported were significant. The Court held that the right to respect for family life had been violated in respect of the children and the mother. The practical lesson that can be drawn from this when preparing a protocol is that, besides the statement "contact will be conducted safely," the concrete arrangement that will ensure safety must be set up.[7]

How should a bilingual protocol and enforcement in a foreign country be handled?

The legal meaning must be the same in both texts

Terms such as "custody," "parental responsibility," "residence" and "contact" may not carry the same scope in every legal system. It should be explained which authority and obligation are accepted; translation should not be done only on the basis of word equivalents. Dates, times, currencies and country names in the two languages should also be compared with each other.[5]

A process should be set up in which the party understands the text, accepts it freely and, if necessary, is provided with proper language support. Even if it is stated which language text will be used for what purpose, this clause does not remove the other country's requirements for official translation or procedure.

A private agreement and an enforceable decision are different

A private protocol signed by the parents does not become an authority measure recognised under the 1996 Hague Convention merely because it has been signed. How the competent authority will decide, and the effect of that decision in the other country, must be examined. The Convention's recognition mechanism is distinguished from the steps required for actual enforcement; which provisions of the decision are enforceable is determined.[3][5]

An apostille or translation does not by itself make the content of a decision enforceable in another country. Moreover, the fact that Art. 43 exempts documents transmitted or provided under the 1996 Convention from authentication shows that an apostille should not be automatically requested in every file. The legal route by which the document will be used must be determined first.[3]

If, before the protocol is signed, the necessary application to the authority in the other country, a copy of the decision, translation and any declaration of enforceability are planned for, the agreement can be prevented from remaining a text that works in only one country.

How can vague provisions be written more clearly?

The following texts are representative drafting examples. They should not be used without examining their suitability for the specific file, the scope of the custody decision and the law of the country concerned. The dates or notification methods mentioned are not statutory mandatory periods.

Example 1: Holiday calendar

“In determining the summer holiday period, the official calendar of the school in which the child is registered is taken as the basis. The period to be spent with the other parent is shown in an annex with its days and hours, in a way that allows the child to rest and prepare before the school opens. The start and end times are according to the local time of the place where the handover is made.”

In this provision, the length of the period, the order of choosing dates and the handover place should also be filled in. Writing only "shown in the annex" and not preparing the annex does not resolve the uncertainty.

Example 2: Limit of travel

“A holiday trip under this arrangement cannot be interpreted as consent to the child's permanent settlement in another country or to the child's being retained after the return date. A plan for permanent relocation is dealt with separately, assessing the consent and judicial steps required under the existing decisions and the applicable law.”

This wording does not claim to replace the other conditions required by law; it clarifies the purpose of the permission given.

Example 3: Sharing important information

“A proposal to change school, a planned major medical procedure and a plan for long-term foreign travel are shared through the written communication channel specified, in light of the existing custody arrangement, with documents suitable for assessment. In an urgent health and safety need, necessary help is not delayed; the other parent is informed, having regard to the child's safety and any confidentiality orders in force.”

The response time, the method of resolution for non-urgent matters and who has the legal power to decide should be completed separately according to the file.

Which documents should be examined together before the protocol is signed?

The child's identity and citizenship documents; current and earlier custody, personal contact and protection decisions; the school calendar; the country of residence and relocation plan; passport and residence documents; and pending foreign cases and return applications should be assessed together. Not only the translation of the documents but also the validity, finality and enforcement status of the decision should be checked according to the relevant legal route.

The order of work matters: first jurisdiction and applicable law are determined; then the plan is built around the child's needs; then how the provisions will be reflected in the court decision and how they will be enforced in the other country is examined. In the last stage, language, dates, annexes and document requirements are matched. This order reduces the risk of preparing a protocol that is well written but cannot be implemented.

How the plan will be reviewed when the child grows up or changes school or country should also be discussed. The parties may determine a method of communication and review; but this method must not prevent a request for an urgent measure or an application to the competent authority if the child's interests require it.[1][3]

Conclusion

A successful child arrangement in the divorce protocol of Turkish–foreign spouses cannot be built by adding a few general sentences under the custody heading. The country of residence, important decisions, the contact calendar, limits on travel, education, health and costs must be consistent with one another. It is as important that the plan can be assessed by the competent authority and, when necessary, enforced in the other country as that it protects the child's safety and development.

Clear calendars and measured information-sharing provisions can reduce the areas of dispute. Nevertheless, no protocol fixes the child's future needs unalterably; the ability to make an arrangement in the child's interests under new conditions must be preserved.[1][3]

Frequently Asked Questions

Does an uncontested divorce protocol with a foreign spouse have to be in Turkish?

The procedural rules apply to the proceedings in Türkiye and the documents to be submitted. The party's understanding of the text must also be ensured. A bilingual text may be prepared; but a copy in the other language does not automatically replace the necessary official translation and language support in the court.

Is divorcing in a Turkish court enough for jurisdiction over the child's custody as well?

It is not enough by itself. The child's habitual residence, the applicable convention and the conditions in Art. 10 of the 1996 Hague Convention must be examined.[2][3]

If joint custody is accepted, does the child live equal time in both countries?

No such result arises automatically. Legal responsibility, the main living arrangement and the sharing of time should be addressed separately; the plan should suit the child's education, age and needs.[1][3]

Is consent given for a passport regarded as permission for the child to settle abroad?

Permission for a passport application, consent to a specific trip and permanent relocation are not the same legal act. The scope of the document and the custody rights concerned are assessed separately.[4][6]

Is a clause in the protocol saying "cannot leave the country" applied in every case?

The scope and purpose of such a provision, the child's interests, existing decisions and the applicable law are assessed together. A general statement does not replace the competent authority's review or a measure to be taken when necessary.[1][3]

Can contact be suspended if the other parent is not paying maintenance?

A maintenance claim and personal contact are separate legal matters. A payment dispute should not be turned by the protocol into an automatic ban on contact; each issue is dealt with in the appropriate legal route.[1]

If the child starts school in another country, does the old protocol become invalid?

No such result follows automatically. The effect of the existing decision and the competent authority's ability to make a change are examined. A unilateral school enrolment also does not automatically widen the scope of a travel permission given earlier.[1][3][4]

Are all provisions of the protocol enforced in another country by the same route?

No. The provisions on custody and personal contact and those on maintenance may be subject to different international rules. The 1996 Hague Convention excludes maintenance obligations from its scope.[3][5]

Can the protocol be changed later?

If the child's interests require it, changed circumstances can be assessed before the competent authority. Not every change the parties make in correspondence changes the court decision automatically; the necessary procedure must be followed.[1][3]

Sources

1 — Turkish Civil Code No. 4721, Arts. 166/3, 169, 182–184, 323–324 and 339–342. Legislation Information System — current text of the law.

2 — Law No. 5718 on Private International and Procedural Law, Arts. 1, 14 and 40. Legislation Information System — current text of the law.

3 — 1996 Hague Child Protection Convention, in particular Arts. 3–5, 7, 10, 13–16, 23–28 and 43. HCCH — official text of the Convention.

4 — 1980 Hague Convention on the Civil Aspects of International Child Abduction, in particular Arts. 3–5, 13, 16, 19 and 21. HCCH — official text of the Convention.

5 — HCCH, Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children, 2022; in particular the sections on terminology, the legal effect of the agreement and cross-border enforceability. Published final guide.

6 — Ministry of Foreign Affairs of the Republic of Türkiye, Consular Services Frequently Asked Questions, Passport: headings on consent, divorce and applications in a pending divorce case. Official information.

7 — ECtHR, I.M. et autres c. Italie (I.M. and Others v. Italy), Application No. 25426/20, 10.11.2022, in particular §§104–141; final 10.02.2023. HUDOC — case record; official full text.

8 — Law No. 6284 on the Protection of the Family and Prevention of Violence against Women, in particular Arts. 5 and 8. Legislation Information System — text of the law.