Article 182 of the Turkish Civil Code stipulates that the personal relations of the spouse who is not left to the custody of the child after the divorce and separation decision will be regulated by the judge, and that the interests of the child in terms of health, education and morality will be taken as a basis in regulating the personal relations of the spouse who is not left to the custody of the child. Article 323 of the Turkish Civil Code stipulates that each of the mother and father has the right to request that a suitable personal relationship be established with the child who is not under their custody or who is not left to them. If you pay attention, the Law stipulates that only the mother and father have the right to request that a suitable personal relationship be established with the child who is not under their custody or who is not left to them. However, in the doctrine and the Court of Cassation decisions, it is accepted that the right to establish a personal relationship is a right granted to the child as well as the mother and father.[1] In fact, the decision of the General Assembly of the Court of Cassation on the subject, Dated 20.03.2013, Merits No: 2012/2-799 and Decision No: 2013/389, is as follows;

“…This right is a right for the child as much as it is for the mother and father. (2003 European Convention on Personal Relations with Children, Art. 4/I). In the relationship, in addition to the satisfaction of maternal and paternal feelings, the child’s physical, intellectual, spiritual, educational and cultural development is also taken into consideration.”[2]

According to Articles 323 and following of the Turkish Civil Code, the personal relationship between the parent who has the right to establish a personal relationship with the child and the child is in the form of visitation rights, or more clearly, the child is mostly taken over from the parent who has custody and spent certain days of the week and holidays with the child – within the periods determined by the judge. If the parent to whom the custody of the child is given prevents the party who has the right to visit from meeting with the child; an enforcement order is sent to the parent who has custody by the enforcement office. The enforcement order includes a warning that the personal relationship should not be prevented, otherwise, the person will be punished according to Article 341 of the Enforcement and Bankruptcy Law. If the requirements of the enforcement order are not fulfilled, the judgment judgment is enforced by force and the person who opposes the fulfillment of the judgment judgment is punished with imprisonment of up to six months upon complaint, according to Article 341 of the Enforcement and Bankruptcy Law.

In practice, the Court of Cassation takes into account the child’s personal characteristics such as the child’s age, school years, and health status in determining the scope of the right to visit, as well as the status of the party with whom a personal relationship will be established. In this context, the Court of Cassation takes into account the working conditions, place of residence, annual leaves of the party with the right to establish a personal relationship, the health status, social environment of the mother or father who wants to establish a personal relationship with the child, and the distance between the places where the parties reside from each other in determining the scope of the right to visit. In addition, the Court of Cassation takes into account special days such as national and religious holidays when establishing the right to visit between a mother or father who does not have custody and a child, and accepts that the second day of religious holidays is appropriate for personal relationships. On the other hand, the Court of Cassation overturns local court decisions that do not clearly indicate the start and end dates or start and end times of personal relationships on the grounds that they create difficulties in the execution of the judgment.[3]

Court of Cassation Decisions on the Subject

Court of Cassation 2nd Civil Chamber, Decision No. 12953/16623, Dated 30.11.2005;

“…The common child, having been born on 8.6.2004, is absolutely in need of maternal care and affection. Considering the distance between the cities where the parties are located, it has been understood that establishing personal relations every Saturday will hinder the physical and intellectual development of the child and will cause difficulties for the mother in fulfilling her guardianship duties. Not observing the establishment of personal relations for a more appropriate period of time is against procedure and law.”[4]

Court of Cassation 2nd Civil Chamber, Decision No. 5431/5973, Dated 10.04.2007;

“…Since the defendant father is a lawyer, it is in the best interest of the child to establish personal contact with the child during the summer vacation, coinciding with the date of the judicial recess. Although it is not appropriate to establish personal contact in July without considering this situation, since this issue does not require a retrial, the verdict had to be corrected and approved in this respect.”[5]

Court of Cassation 2nd Civil Chamber’s Decision No. 7303/8092, Dated 21.06.2004;

“…Due to the child’s age and the fact that the mother, to whom the custody rights were left, is working full-time, the regulation that personal relations are established between the child and the father every weekend is not correct. A more appropriate personal relation should be established…”[6]

Court of Cassation 2nd Civil Chamber’s Decision No. 144/1715, Dated 16.02.2004;

“…The fact that the personal relation between the child and the father was not clearly indicated in a way that would not create difficulties in execution and that the verdict was rendered as written was contrary to procedure and law and required reversal.”[7]

Court of Cassation 2nd Civil Chamber’s Decision No. 2894/226, Dated 17.01.2008;

“…In the personal relationship established between the defendant father and the child; the starting and ending time of the personal relationship for the period of July 1-30 has not been indicated. The aforementioned deficiency is of a nature that will create doubt and hesitation in the execution of the judgment. It is inappropriate not to observe this aspect.”[8]

Decision No. 20379/2619 of the 2nd Civil Chamber of the Court of Cassation, Dated 12.02.2014;

“The personal relationship established between the defendant father and the common child E. born on 24.08.2012 between July 1 and July 31 every year, considering the child’s very young age, the fact that he is still breastfed, and that he has been separated from his mother for a long time, must be accepted that this period is not in the best interest of the child and is very long.”[9]

Merits No. 2012/2-799 and Decision No. 2013/389 of the General Assembly of the Court of Cassation, Dated 20.3.2013;

“…that days and periods that will not cause difficulties and problems for the parents and the child are preferred as visiting days, that these periods are generally weekends and holidays, however, that the child spending all weekends with the parent who is not given custody may have harmful consequences for both the party with custody and the child, that in the concrete case, the decision by the local court to establish personal contact between M., born on 7.12.2005, whose custody belongs to the plaintiff mother, and the father every weekend from 09.00 on Saturday to 18.00 on Sunday is not correct since it will negatively affect the age, education, physical and intellectual development of the minor, that it is reasonable and fair for the parents to share the weekends and holidays in personal contact, considering the age of the child, otherwise the mother, who has custody every weekend, will be unable to plan her weekends due to the situation of handing over and taking back the child, and that the child should spend privileged days such as holidays and weekends, during which she will feel more comfortable and free psychologically, only with one party; He states that “spending difficult times with the person who has custody may cause the person to distance themselves from the person who has custody, to become estranged and attached to the other party.”[10]

[1] Erlüle, F. (2018). YARGITAY KARARLARI ÇERÇEVESİNDE VELAYETİN KULLANILMASI KENDİSİNE BIRAKILMAYAN TARAFIN ÇOCUĞU ZİYARET HAKKI. İnönü Üniversitesi Hukuk Fakültesi Dergisi, 9(2), p. 262.

[2] The General Assembly of the Court of Cassation, Dated 20.03.2013, Merits No: 2012/2-799 and Decision No: 2013/389.

[3] Erlüle, F. (2018). YARGITAY KARARLARI ÇERÇEVESİNDE VELAYETİN KULLANILMASI KENDİSİNE BIRAKILMAYAN TARAFIN ÇOCUĞU ZİYARET HAKKI. İnönü Üniversitesi Hukuk Fakültesi Dergisi, 9(2), p. 273.

[4] Court of Cassation 2nd Civil Chamber, Decision No. 12953/16623, Dated 30.11.2005.

[5] Court of Cassation 2nd Civil Chamber, Decision No. 5431/5973, Dated 10.04.2007.

[6] Court of Cassation 2nd Civil Chamber’s Decision No. 7303/8092, Dated 21.06.2004.

[7] Court of Cassation 2nd Civil Chamber’s Decision No. 144/1715, Dated 16.02.2004.

[8] Court of Cassation 2nd Civil Chamber’s Decision No. 2894/226, Dated 17.01.2008.

[9] Decision No. 20379/2619 of the 2nd Civil Chamber of the Court of Cassation, Dated 12.02.2014.

[10] Merits No. 2012/2-799 and Decision No. 2013/389 of the General Assembly of the Court of Cassation, Dated 20.3.2013.