Custody case and change of custody case
WHAT IS CUSTODY?
The concept of custody means that the mother and father have a legal say in matters such as the protection, care, education and representation of the minor child. Custody also includes the rights, duties, powers and obligations regarding the personalities and property of children under the custody of the parents. The rights and duties of parents regarding the personalities of their children; In particular, it is to take care of children personally, to take care of them, to provide for them, and to ensure their upbringing and education. In accordance with Article 336 of the Turkish Civil Code, the mother and father have joint custody as long as the marriage continues. If the spouses end their joint life, that is, they divorce, the judge may give custody of the minor children to one of the spouses.
JOINT CUSTODY
If the mother and father agree to have joint custody of the child, they may request the court to arrange joint custody. Although the joint custody regulation is not yet included in our domestic law, the implementation of the Additional Protocol No. 7 of the European Convention on Human Rights, which brings new regulations regarding joint custody, in our legal system is legally appropriate in accordance with Article 90 of the Constitution. However, since the use of joint custody means having equal say and equal rights over the child, it is very likely to create psychological problems for the child in practice. Therefore, if the mother and father request joint custody, the court will not make a decision without making careful investigations as to whether this situation would be contrary to the best interests of the child.
Provisions regarding custody regulated in Article 335 etc. of the Turkish Civil Code; It regulates practices such as the fact that a minor child is under the custody of the mother and father, that custody cannot be taken from the mother and father unless there is a legal reason, what rights and obligations the mother and father who hold the right of custody have, and the changing and removal of custody in cases where the child's interest requires.
What is included in the scope of the right of custody is regulated in the provisions of Article 339 Vd of the TMK. Custody can generally be explained as the mother and father taking and implementing the necessary decisions regarding the child's care and education, taking into account their interests. The custodial mother and father are obliged to ensure and protect the physical, spiritual, moral and social development of the child.
(TMK Article 337) CUSTODY IF THE MOTHER AND FATHER ARE NOT MARRIED
If the mother and father are not married, custody belongs to the mother. If the mother is young, limited, dead, or has custody taken away from her, the judge appoints a guardian or gives custody to the father, depending on the child's best interests.
(TMK Article 338) CUSTODY OF STEP-CHILDREN
Spouses are also obliged to show care and attention to their minor stepchildren. The spouse who exercises custody over his/her own child shall be assisted by the other spouse in an appropriate manner; It represents the child's needs to the extent that the situation and conditions necessitate it.
CASE FOR CHANGE OF CUSTODY
Custody change case is a type of case in which the mother or father, who has not been given the right of custody, requests that custody be given to him/her because he/she thinks that the best interests of the child are harmed due to the changing conditions of the custodial party or for other justified reasons. Since custody decisions made as a result of child custody cases and divorce cases are not final decisions, a lawsuit for change of custody can be filed in cases where the best interest of the child requires it and in some cases specified by the law. The case for changing custody is not subject to a certain period of time. In that case, if the conditions change (TMK articles 183, 349, 351/1) or if there is a justified reason requiring the change of custody, the court may decide to change the custody. The law lists some situations that may require changing the custody of the child. Namely;
TMK Article 183: "Mother or father;
- Marrying someone else
- Going somewhere else
- His death
If such new facts make it necessary, the judge takes the necessary measures ex officio or upon the request of one of the parents."
The facts listed in the text of the article are arranged as examples only. Apart from these reasons, if the right of custody is abused, if the child is prevented from establishing a personal relationship with the non-custodial party, if there are justified reasons that the custody should be changed for the physical, psychological and social development of the child and if there is convincing and serious evidence for these reasons, a lawsuit for changing custody can be filed. When examining a request for change of custody, it should not be forgotten that the best interests of the child are taken into account rather than the wishes and preferences of the parents.
IN CASE OF DEATH OF THE EX-SPOUSE GIVEN CUSTODY
In the event that one of the spouses dies while the marriage continues, the custody of the children will legally pass to the surviving spouse, but if the ex-spouse who was given custody in the divorce case dies, the custody will not automatically pass to the surviving spouse. In this case, the surviving spouse will be able to obtain the right to custody by notifying the court that he/she wants to take custody of the children, that is, through a lawsuit.
REASONS FOR CHANGE OF CUSTODY, SUPREME COURT DECISIONS
Let's examine some examples that cause the child custody to be changed in the light of the Supreme Court decisions;
- Request for change of custody due to sexual abuse of the child
"... although the court decided to change the custody on the grounds that the mother, who had the right to custody, invited her boyfriends to the house and stayed together, the child was made to sleep in the same bed with the mother and her boyfriend, the mother's boyfriend sexually abused the child in the meantime, and according to the child's statement, the child wanted to stay with his father, a live-in personal relationship was established between the child and the mother, disregarding the child's statement in the personal relationship arrangement. Joint child T. was at the age of cognition as of the date of the case, and in the interviews with the experts, "at my mother's." It has been understood that she said, "I don't want to stay, I want my father." In the face of the above-mentioned legal regulations, in terms of personal relationship, the statement of the child who is at the age of understanding should be given priority, and a personal relationship of appropriate duration should be arranged between the defendant mother and the child, without being a live-in.
(YHGK E. 2017/2-2069 K. 2018/1179 T. 6.6.2018)
- Request for change of custody due to the fact that the custodial father has been using drugs for the last 6 years and has received treatment for this reason, the child actually lives with the grandmother and grandfather, and the custodial father lives in another house with his new wife and new children
"From the witness statements and the statements in the social investigation reports taken by the court; it is understood that the joint child, whose custody is held by the defendant father, actually lives with the grandmother and grandfather, that he occasionally goes to the house where the defendant father lives with his new wife and the children from his new spouse, that the defendant father stated to the expert who prepared the social examination report that he has been using drugs for the last 6 years and that he has received treatment for this reason, and that the defendant father is indifferent towards the child subject to the case. In the social examination report made about the plaintiff mother, it is stated that the mother It has been reported that there is no obstacle for him to undertake the duty of custody. According to this situation, the fact that the common child stays with the defendant father, who does not actually fulfill the requirements of the custody duty, does not show interest in the child and uses drugs for a long time, has a negative impact on his physical and psychological development, and considering the positive contributions of the siblings to their development and the best interest of the child requires, it should be decided to change the custody of the common child in the case by accepting the case within the framework of the above-mentioned principles. "It was not correct to make a written judgment on the grounds that it could not be determined that he was using substances, and it required reversal."
(Y2.HD. 2019/906 E. 2019/1745 K. 27.2.2019 T.)
- Request that the custody given to the father by the divorce decision be changed and given to the mother
"From the investigation conducted and the evidence collected, it is understood that the parties were divorced by agreement and the decision regarding divorce and custody was finalized without appeal on 23.12.2011. The lawsuit regarding the change of custody was filed by the plaintiff mother on 12.3.2012. The plaintiff could not prove the existence of a new material fact that would require the rearrangement of custody in a very short period from the date of divorce to the date of the lawsuit, and the joint children living with the father, "They stated that they are happy to stay with their father and that they want to live with their father. It has not been proven that the father mistreated the children and neglected his custody, duties and responsibilities, and it is in their best interest for the siblings not to be separated from each other. In the face of this situation, the case should have been rejected in terms of the request to change the custody of the joint child Hamza. However, it was not correct to make a written decision."
(Y2HD. 2014/4891 E. 2014/11100 K. 13.5.2014)
HEARING THE CHILD AND OBTAINING HIS OPINION IN THE CUSTODY CASE
Articles 12 of the United Nations Convention on the Rights of the Child and Articles 3 and 6 of the European Convention on the Exercise of the Rights of the Child stipulate that the opinions of children who are considered to have reached the age of understanding according to domestic law should be sought and their opinions should be taken into account on matters concerning them. Therefore, the task to be done by the court is; The child, who is considered to have reached the age of understanding, is heard in person regarding the custody issue that directly concerns him/her and is provided with the opportunity to express his/her views with justifications; The views they express should be valued unless they conflict with their interests. However, it is also possible for the judge to decide contrary to the children's views if the best interests of the children require it.
According to the Supreme Court HGK decision, in practice; It is assumed that children aged 8 and above have sufficient cognitive abilities and their opinions should be taken in custody cases.
In a decision of the 2nd Civil Chamber of the Supreme Court dated 9.4.2019, it was stated that:
"... As for the concrete incident, the court ordered a social investigation report, and in the social investigation report, it was stated that it seemed more appropriate to give the custody of the children to the defendant father in order to better meet their physical, health, social, educational and financial needs in an orderly environment where they were with the father. The court decided to give the custody of the joint children to the plaintiff mother because they were in need of the mother's care and affection due to their age. However, the court decided to give custody to the plaintiff mother, pursuant to Family Courts No. 4787. In accordance with Article 5 of the Law on Establishment, Duties and Trial Procedures, a decision on custody should be made by evaluating together with other evidence by asking the experts in the Family Court, consisting of psychologists, pedagogues and social workers, about the living conditions of the common children and the mother, their relations with each other, the situation of the mother and father, and informing them about the possible consequences of the common children who are at the age of understanding, and evaluating them together with other evidence. A provision has been made as follows.
REQUEST FOR SUBJECT ALIMONY IN CHANGE OF CUSTODY CASES
The mother or father, to whom custody of the child is given in the case of change of custody, takes over matters such as the child's care and education, and all the duties and rights imposed on the mother or father by law. TMK article 182/2. In accordance with the article, the spouse who is not given custody must participate in the child's care and education expenses in proportion to his/her own means and economic power. Therefore, a request for child support may also be made along with the change of custody.
Participation alimony is considered an accessory part of the case in such cases regarding the regulation of custody. Depending on the acceptance of the request for change of custody, which is the main request, child support is awarded in favor of the party who has the right to custody. If the request for change of custody is rejected, the request for child support, which is an accessory to the case, will also be rejected.
In one of its decisions, the General Assembly of the Supreme Court of Appeals ruled that child support should be awarded as of the finalization of the decision in cases of change of custody. That is;
"The dispute centers on whether the child support for the benefit of the joint child, whose custody was taken from the mother and given to the plaintiff father, should be decided from the date of the lawsuit or from the date of finalization of the decision subject to change of custody. The plaintiff father filed a lawsuit to change the custody of the joint child and give it to him, and in this case, he also requested that the child support be awarded for the child. The court decided to accept the case for changing the custody and from the date of the case for the child. "Although alimony has been awarded for the benefit of the plaintiff father, alimony should be awarded as of the finalization of the decision in cases of change of custody. Since there is no regulation stating that alimony will be awarded if the spouse to whom custody is not given actually takes care of the child, it is not deemed appropriate to award alimony as of the date of the case." (YHGK 2018/1052 K. 9.5.2018 T.)
CAN THE REQUEST FOR CHANGE OF CUSTODY AND THE RE-ARRANGEMENT OF PERSONAL RELATIONSHIP BE FILED AS A DETERMINED CASE?
According to Article 111 of the Code of Civil Procedure, "The plaintiff may put forward more than one claim against the same defendant in the same petition by establishing a primary-secondary relationship between them. For this, there must be a legal or economic connection between the demands. The court cannot examine and rule on the plaintiff's accessory request unless it decides to reject the plaintiff's primary request on the merits."
The mother or father who wants custody to be changed and given to him/her may request the reorganization of the personal relationship with the child in the same petition if the conditions for the change of custody are not met. In a gradual (staged) case, the court first examines the plaintiff's request for change of custody and makes a decision. If the primary request is rejected, it examines and decides on the secondary request for the reorganization of the personal relationship with the child.
Examples of Supreme Court decisions on the subject are as follows;
"The plaintiff father filed a lawsuit gradually, first of all, he requested that the custody of the joint child be taken from the defendant mother and given to him, and if this request was not accepted, he requested that the personal relationship with the joint child be reorganized. The plaintiff father's request for changing custody was rejected, but his request for the reorganization of the personal relationship was accepted and the decision was made. Partial acceptance is not possible in the case. The case was filed in a staggered manner; there is only one case, not two separate cases..." (Y2HD. 2016/15987 K. 14.12.2016 T.)
"The plaintiff filed a lawsuit in a gradual manner, first of all, asking for the custody of the joint child to be taken from the defendant mother and given to her, and if this request was not accepted, for the reorganization of the personal relationship with the joint child. Since the plaintiff's request for change of custody was rejected, it was not deemed appropriate not to make a positive or negative decision about the reorganization of the personal relationship, which was his delayed request, and it required reversal." (Y2HD. 2013/2604 e. 23.9.2013 T.)
TRIAL PROCEDURE IN CUSTODY CASES
- According to Article 382/2-b-13 of the Code of Civil Procedure, cases regarding custody are non-contentious jurisdictional matters. Again, HMK article 385/1. In accordance with the article, "simple trial procedure" is applied in non-contentious judicial matters.
- In cases subject to simple trial procedure, the court decides on the file, whenever possible, without inviting the parties to the hearing. In this case, it must first of all be legally possible for a matter subject to the simple trial procedure to be examined without a hearing. Cases regarding custody are directly related to public order and the principle of ex officio investigation is valid. This nature of the case requires a hearing, evidence collection and detailed investigation.
- In cases regarding custody, evidence may be collected by the court ex officio, and the parties may present evidence at any stage of the trial. Even new developments that occur during the trial are taken into consideration by the court.
- When deciding on custody cases, the best interests and interests of the child, not the wishes of the mother and father, are taken into account as a priority. Providing the necessary social, economic and cultural environmental conditions for the child to grow up physically, spiritually and morally in the best possible way represents the child's best interest.
- In cases of change of custody, the defendant's declaration of "acceptance of the case" alone will not be effective on the outcome. The defendant's statement only accepting the plaintiff's request for custody change, without examining in detail the necessary criteria regarding the social and economic situations of the parties and the best interest of the child, is not sufficient to decide on the custody of the child.
WHAT ARE THE PRINCIPLES TAKEN INTO CONSIDERATION WHILE DECISIONING IN CUSTODY CASES?
The primary and most important goal in custody cases is to secure the child's development and future in every sense. In order to achieve this, the courts decide who will give custody; They listen to the opinions of the parties and children of cognitive age, examine the social investigation reports prepared by experts, and evaluate all the evidence collected carefully and in detail.
The criteria and principles taken into consideration by the courts dealing with custody cases when making decisions are as per the Law General Assembly of the Supreme Court of Appeals 2017/2-2448 e. 2018/1131k. It was stated in detail in the decision no. 23.5.2018. Namely;
"Since the main thing in arranging custody is to protect the interests of the minor and to secure his future, any event that hinders the physical and spiritual development of the child and is understood to be permanent should be evaluated and concluded by evaluating the magnitude of the danger and the irreparable consequences that it may cause; the best interest of the child should be taken into account first in determining and regulating custody.
In this context, issues regarding the child's special situation such as the child's gender, date of birth, educational status, who he/she is studying with, whether the requester can deal with the child's educational status, his/her health, and who can provide treatment opportunities according to his/her health status should be taken into consideration.
It is inevitable to take into account the characteristics of the parents in determining and regulating custody. For this reason, the court should take into consideration the issues of leaving the child to someone else, neglect, abduction, voluntary abandonment, guidance, whether the party has a custody request or not, use of violence, infidelity, economic situation, profession, living environment, bad behavior, alcohol addiction, health, and unstable behavior.
In addition to the characteristics explained, the court should be careful not to change the environment to which the child is accustomed and not to separate siblings, as much as possible, and it should also be evaluated whether there is serious and convincing evidence as to whether staying with the party to whom custody will be given will hinder the child's physical, intellectual and moral development, or whether the existence of an immediate danger can be proven and whether the good financial situation alone will not require changing custody."
Can CUSTODY BE GIVEN TO THE FAILURE SPOUSE IN DIVORCE?
One of the most common disagreements between spouses in divorce cases is the custody of children. If the parties cannot agree, the court will resolve the custody issue by taking into account the best interests of the child, that is, ensuring the development and future of the child. The court has wide discretion in determining child custody.
In the words of the established Supreme Court decisions; "When determining the best interest of the child; The aim of ensuring his/her physical, mental, spiritual, moral and social development must be observed. Situations such as the interests of the parents, their faults in the divorce, their moral value judgments, and their social positions are taken into consideration to the extent that they do not affect the best interests of the child. In the custody arrangement; "In case of conflict between the interests of the child and the mother and father, the child's interest must be given priority."
As can be understood, the judge may decide to give custody to the spouse who is at fault in the divorce - if the best interest of the child requires this. Fault in divorce is not a criterion that alone affects the custody of children. Likewise, custody of the child can be given to the spouse whose economic situation is worse, and custody of the child can be given to the spouse who is seriously at fault in the divorce case.
In a decision of the General Assembly of the Supreme Court of Appeals dated 22.12.2010;
"It is clear that there is no dispute between the parties that the marital union ended due to the serious fault of the defendant-counter-plaintiff mother. However, considering the age of Tarık, who was born on 27.01.2004, it would be appropriate to leave the custody to the mother, considering that he is at an age in need of the closeness and affection of the mother, and that the deprivation of the mother can leave deep scars at these ages when his personality is developing. On the other hand, the defendant-counter-plaintiff mother's bad behavior and abuse towards the child is also has not been proven.
This being the case; In addition to the fact that the child is in need of the mother's care and affection, since there is no serious and convincing evidence that staying with the mother will hinder his physical, intellectual and moral development, nor can the existence of an immediate danger be proven, and since it is not in the child's interest to leave the minor to the custody of the father in accordance with Articles 182, 136/2 of the Turkish Civil Code No. 4721, the Special Chamber reversal order, which points out the same issues and was adopted by the General Assembly of Law, regarding custody. While paragraph (2) must be complied with, resisting the previous decision is against the procedure and the law. Therefore, the decision to resist should be overturned."
CASE FOR REMOVAL OF CUSTODY
In cases where the mother and father seriously abuse their duty of custody, excessively neglect their duties towards the child under custody, and neglect their responsibilities towards the child, a case for removal of custody may be brought to the agenda.
Removal of custody is clearly regulated in Article 348 of the TMK;
"If no results can be obtained from other measures to protect the child or if it is understood in advance that these measures will be insufficient, the judge decides to remove custody in the following cases:
If custody is removed from both parents, a guardian is appointed for the child.
Unless otherwise stated in the decision, removal of custody covers all existing and future children."
For a decision to revoke custody, it is not necessary for the parents or any other relevant party to request this from the court. When the judge learns that there is a reason that requires a decision to abolish custody for the best interests of the child, he or she may act ex officio and decide to abolish custody.
If the decision to remove custody is made for both mother and father, a guardian will be appointed for the child.
(TMK art. 349.) In case of remarriage of the mother or father
Remarriage of the parent with custody does not require the removal of custody. However, when the child's interest requires, the custody holder can be changed, or custody can be abolished and a guardian can be appointed for the child, depending on the situation and conditions.
(TMK art. 350.) Obligations of parents in case of removal of custody
If custody is abolished, parents' obligations to cover the care and education expenses of their children continue. If the mother, father and child do not have the ability to pay, these expenses are covered by the State. Provisions regarding alimony are reserved.
(TMK art. 351.) In case the situation changes
If the situation changes, measures to protect the child must be adapted to the new conditions. If the reason requiring the removal of custody is eliminated, the judge returns custody ex officio or upon the request of the mother or father.
THE COURT WITH RESPONSIBILITY AND AUTHORITY FOR CUSTODY CASES
Family courts are responsible for all cases related to custody, such as the case of changing the custody of the joint child, the case of removal of custody. In places where there are no family courts, civil courts of first instance have jurisdiction.
Again, in cases related to custody, the competent court is the court of the place of residence of the requester (plaintiff) or one of the parties concerned (defendant).
"The case was filed on 16.02.2016, after the Code of Civil Procedure No. 6100 came into force. For this reason, the plaintiff's request to take custody of the joint child from the father and give it to him is a "non-contentious jurisdiction" matter (TCC art. 382/2-13). In non-contested jurisdiction cases, the place of residence of the person making the request or one of the relevant parties, unless there is a contrary provision in the law. Since there is no contrary regulation in the Turkish Civil Code regarding the authority in cases regarding the removal of custody or the transfer of custody from one parent to the other, or the return of the abolished custody, the general jurisdiction rule regarding "non-contentious jurisdiction" in the Code of Civil Procedure will be applied here as well." (Supreme Court 2nd civil chamber E. 2019/2532 K. 2019/4235 T. 8.4.2019)
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