As a rule, custody is the totality of rights that parents have over the property and persons of minors or disabled individuals in order to ensure their care and protection. According to Article 336 of the Turkish Civil Code; as long as the marriage continues, the mother and father exercise custody together. In the event of the death of one of the mother or father, custody belongs to the surviving party, and in the event of divorce, custody belongs to the party to whom the child is given (Article 336/3). This regulation necessitates asking the question of whether joint custody is possible in Turkish Law. In fact, there is no clarity on this issue in the article in question. This situation causes discussions in the doctrine.
According to one view, Article 336/3 allows only one of the mother or father to have custody in the event of divorce. According to this view, the Law excludes joint custody. According to another view in the doctrine, Article 336/3 is a regulation that allows for joint custody. The word “party” in the text of the article should be interpreted in a way that also includes the word “parties”. According to this view, since the Law does not explicitly prohibit joint custody, joint custody can be ruled on condition that the child’s best interests are taken into consideration.
In this context, it is important to reveal how joint custody is approached in comparative law in order to resolve the debates in Turkish law and the problem in case of a possible change in the law.
With the amendment made in 2014 to the Swiss Civil Code, which is the source law of the Turkish Civil Code, it was ruled that the court may grant custody to one of the parents in a divorce case if the child’s best interests require it, and that the child is under the joint custody of the mother and father until the child reaches adulthood. Therefore, with these provisions, joint custody has been accepted as the rule in the event of divorce in Swiss law, and sole custody has been accepted as an exceptional type of custody that can only be applied in cases where the child’s best interests require it. However, the court will decide on the custody model by examining the situation in each concrete case. In other words, joint custody is the rule but does not occur automatically, it must be decided by the court. According to the law, the court must regulate the custody of the child in the event of divorce by taking into account the child’s best interests, the joint proposal of the mother and father, and, if possible, the child’s opinion[1].
In the German Civil Code, each parent who has joint custody and lives permanently apart may request from the family court that custody be granted to him/her in whole or in part. In order for this request to be accepted, either the other parent must accept this situation and if the child is over the age of fourteen, he/she must not object to this situation or the joint custody must be lifted and the requesting parent must be given sole custody, which is the most appropriate situation in the child’s best interests. As can be understood from this regulation, in German law, joint custody is the rule in the event of divorce, while sole custody is an exceptional type of custody. However, since joint custody is automatically established after divorce, the court does not rule for joint custody separately[2].
As can be seen, in comparative law, joint custody is clearly regulated by considering the best interests of the child. In Turkish law, it is essential to make a legal regulation that allows joint custody, provided that the best interests of the child are taken into consideration. So much so that joint custody is no longer just a discussion in doctrine, but is also a subject of judicial decisions. Indeed, in the first decision in Turkish law on the subject of joint custody, in the consensual divorce case dated 27.05.2009 at the 4th Family Court of Izmir, the court ruled for joint custody on the grounds that it was in the best interests of the child when the mother and father requested joint custody[3].
In the practice of the Court of Cassation, decisions on joint custody have come to the fore in cases that have a foreign element. In its previous decisions, the Court of Cassation stated that custody is a matter of public order and that Turkish law will be applied in disputes regarding custody. Stating that joint custody is not possible in Turkish law, the Court of Cassation ruled to reject the request for joint custody. However, the Court of Cassation 2nd Civil Chamber ruled in its decision Merits No: 2016/15771 and Decision No: 2017/1737 as follows:
‘‘(…) The parties are British citizens. The plaintiff father requested that the custody of the joint child born on 24/10/2003… born out of wedlock be given to the mother and father, and that the custody be arranged jointly. In summary, the local court decided to dismiss the case on the grounds that although joint custody arrangement is possible for children born out of wedlock according to the national law of the parties, joint custody arrangement is contrary to Turkish public order. It is not possible to say that the “joint custody” arrangement is “clearly” contrary to Turkish public order or violates the basic structure and fundamental interests of Turkish society.
Therefore, the court ruled that Article 2 of the International Private and Procedural Law Code. While a decision should have been made regarding the case regarding the request for “joint custody” by considering the regulations regarding custody in the common national law of the parties who are British citizens, by going into the merits of the case and evaluating all the evidence together, pursuant to Article 17/1, the decision was made in writing, stating that the request was contrary to Turkish public order, and this necessitated reversal.’’
With the Supreme Court ruling that joint custody in disputes containing foreign elements is not contrary to public order, Regional Courts of Justice accept joint custody requests in disputes that do not contain foreign elements[4]. In fact, in its decision dated 10.05.2017, Docket No: 2017/121 and Decision No: 2017/601, Ankara Regional Court of Justice 1st Civil Chamber stated:
“With the entry into force of Protocol No. 7 with Law No. 6684, since the provisions of the International Treaties on fundamental rights and freedoms duly put into effect and the laws contain different provisions on the same subject, the provisions of the Turkish Civil Code that prevent joint custody have been implicitly abolished. For these reasons, considering the absence of any claim or evidence in the case file that it is against the child’s trust and best interests, it has been concluded that joint custody should be ruled in accordance with the best interests of the child…”.
As can be seen in the decisions in question, the issue of joint custody has ceased to be a doctrinal debate in terms of Turkish law and has begun to be the subject of judicial decisions. In this context, in order to put an end to the discussions caused by the ambiguous regulation of the Turkish Civil Code and to provide stability to judicial decisions on joint custody, what is expected from the legislator is to clearly regulate joint custody and sole custody as an option in the Turkish Civil Code, provided that the best interests of the child are taken into consideration and by granting the judge a wide discretionary power.
[1] Ercoşkun Şenol, H. K. (2021). TÜRK HUKUKUNDA BOŞANMA HALİNDE ORTAK VELÂYETE HÜKMEDİLİP HÜKMEDİLEMEYECEĞİ SORUNU. İnönü Üniversitesi Hukuk Fakültesi Dergisi, 12(2), 754-765. https://doi.org/10.21492/inuhfd.963579
[2] Ercoşkun Şenol, H. K. (2021). TÜRK HUKUKUNDA BOŞANMA HALİNDE ORTAK VELÂYETE HÜKMEDİLİP HÜKMEDİLEMEYECEĞİ SORUNU. İnönü Üniversitesi Hukuk Fakültesi Dergisi, 12(2), 754-765. https://doi.org/10.21492/inuhfd.963579
[3] Izmir 4th Family Court, E: 2009/448, K: 2009/470.
[4] Ercoşkun Şenol, H. K. (2021). TÜRK HUKUKUNDA BOŞANMA HALİNDE ORTAK VELÂYETE HÜKMEDİLİP HÜKMEDİLEMEYECEĞİ SORUNU. İnönü Üniversitesi Hukuk Fakültesi Dergisi, 12(2), 754-765. https://doi.org/10.21492/inuhfd.963579