ENTRANCE
Custody is a fundamental institution of family law that regulates the care, education, health, and general
welfare of a child. According to the Turkish Civil Code (TCC), custody is awarded to one parent based on the
child’s best interests. However, changing circumstances may necessitate changes to this arrangement. A
lawsuit to change custody is filed to meet this requirement and aims to protect the child’s best interests.
1-) Legal Nature of the Change of Custody Case
Custody is the responsibility for the care, supervision, representation, and protection of minor
children. It is exercised by both parents, or by one parent at a time, upon court order. A change of
custody lawsuit is a lawsuit filed to remove custody from the current parent and grant it to the
other parent or another person/institution.
This case can be both non-contentious and, in some cases, adversarial. A change of custody
occurs when the child’s best interests change or the current situation becomes unsuitable for
the child.
2-) Legal Basis for the Change of Custody Case
Turkish Civil Code (TMK)
Article 183:“If new facts make it necessary, such as the mother or father marrying someone else, moving to
another place, or dying, the judge takes the necessary measures ex officio or upon the request of one of the
mother or father.”- This provision requires a “new fact” condition for a change of custody.
Article 182:In case of divorce, a decision is made regarding the custody of children.- However, custody may be re-evaluated if circumstances change after the divorce.
Articles 336-351:These articles regulate who will exercise custody, how it will be exercised, and in what
circumstances it can be abolished or changed.
Convention on the Rights of the Child and the Constitution Articles 41-42
The principle of the child’s best interests must be the basis for all procedures. This principle is part of
international law and is directly applicable.
3-) Right and Conditions to File a Lawsuit
Who Can Open?- Parent who has not been granted custody rights- Persons appointed as guardians (legal representatives of the child)- In some cases, the Ministry of Family and Social Services- In cases where the child’s best interests require it, the public prosecutor- The judge may also change custody ex officio (for example, upon a situation discovered during the case).
Circumstances of the case- There must be a valid custody decision.- There must be a fundamental change in the situation (new fact)- Custody may be changed if this change negatively affects the best interests of the child.- The child must still be an adult (under 18 years of age) on the date the case is filed.
4-) Reasons for Custody Change
Situations that may cause custody to be changed include:
a) Marriage of the parent with custody- The reason for this is that the new marriage may affect the child’s family environment and psychology.
b) Moving to another city/country- This situation may disrupt the child’s educational system and social environment.
c) Child maltreatment / indifference / abuse- If there is physical, psychological violence or neglect, custody can be changed.
d) Illness or incapacity of the parent exercising custody- If physical or mental illnesses prevent the fulfillment of parental duties, it may lead to a
change in custody.
e) Obstruction of the right to personal relations- Continuously preventing the other parent from seeing the child may result in a change in
custody.
f) The best interests of the child require being with another parent- If the best interests of the child can be achieved by providing better education, development and
care conditions to the other parent, changing custody may be considered.
5-) Trial Process
a) Competent Court:- The competent court is the Family Court.- If there is no Family Court, the Civil Court of First Instance shall act as a family court.
b) Competent Court:- The court of the defendant’s place of residence- Or the court of the child’s place of residence
c) Trial Procedure:- In cases involving a change of custody, a simplified trial procedure is applied. However, comprehensive expert reports and social
assessment reports are required.
6-) Evidence and Investigation Methods- There are many evidence and examination methods that can be used and applied in a court
custody change case.
a) Social Investigation Report (SIR):- The court appoints a social worker and requests a report on the child’s living conditions and the situation
of the parents.
b) Psychological / Pedagogical Reports:- Opinions of a psychologist or pedagogue can be obtained.
c) Witness statements- People such as neighbors, teachers, relatives, etc. can be heard as witnesses.
d) School, health and police station records- Documents such as absence, illness, and complaints may be requested to be submitted to the court.
e) Obtaining the child’s opinion- According to Article 339 of the Turkish Civil Code (TCC), if the child has reached sufficient maturity, his or her opinion must be sought. However,
this opinion is not binding. The child’s opinion must be taken into account when making a decision.
7-) Criterion of the Court Decision: “Best Interest of the Child”
The primary criterion used by the court in making its decision is the child’s best interests. This criterion is taken
into account when making its decision, and the court strives to provide the best possible situation for the child.
The court’s primary concern is the answer to the question, “Who is the most suitable parent for the child’s
physical, psychological, emotional, educational, and social development?” This criterion should be evaluated
based on concrete data, not subjective data. Relying on abstract data could lead the court to err in its decision.
😎 Conditions for the Change of Custody Case
In order to file a case for change of custody, the following conditions must be met:
Damage to the Child’s Best Interests:The current custody order negatively affects the physical, psychological or
social development of the child.
Fundamental and Permanent Change:The situation requiring a change in custody must be a permanent and fundamental
change, not a temporary one.
Change in Parent’s Status:A change in the custodial parent’s circumstances that adversely
affects the child’s best interests.
Eligibility of the Other Parent’s Status:Granting custody to the other parent is in the best interests of
the child.
9-) Temporary Measures and the Best Interest of the Child
During the trial, the judge may take interim measures to protect the child’s best interests. These measures may
include temporarily placing the child with the other parent, establishing personal relationship arrangements, and
other measures. The judge will make these decisions based on the child’s safety, health, education, and
psychological development.
10-) Alimony and Financial Obligations
If custody is changed, financial obligations such as child support may change. Based on the new
custody arrangement, the child support amount may be adjusted to contribute to the child’s care
and education expenses. These adjustments are made based on the child’s needs and the parents’
financial situation.
11-) Possible Decisions the Court May Make- The court may remove the existing custody and give it to the other parent, or- Temporarily grant custody to a third person or institution (exceptional)- Personal relationship arrangements can also be re-made.- Alimony decisions can be revised.
CONCLUSION
A custody change case is an extremely sensitive legal process that requires the principle of “the child’s
best interests,” a cornerstone of juvenile law, to be reinterpreted and applied in the face of dynamic
living conditions. With the changing structure of modern society and family dynamics, it is becoming
clear that a custody decision once made does not constitute an absolute and immutable legal status;
rather, it is a flexible and adaptable framework, as envisioned by a legal system responsive to changes
in living conditions.
Regulations in the Turkish Civil Code, particularly Article 183 and Article 182 et seq. of the Turkish Civil Code,
outline both the conditions and procedure for changing custody; however, hesitations in practice and
discrepancies in judicial decisions demonstrate the degree to which this area must be interpreted with caution. In
particular, the content of the concept of “new fact,” the obstruction of the right to personal contact, changes in
the parents’ lifestyles, and the observed negative effects on the child’s development have become fundamental
factors determining the course of cases.
An examination of Supreme Court and regional court decisions reveals that requests for custody changes are not solely
based on financial means; decisions are based on the availability of an environment that better supports the child’s
emotional, social, physical, and mental development. In this context, it is noteworthy that decisions are made to change
custody in favor of the parent who provides one-on-one care for the child, meets their educational and health needs,
and provides care in a manner that does not compromise their mental integrity.
Ultimately, a custody change case is not only a legal matter but also a responsibility that can have
long-term impacts on the child’s spiritual, physical, and mental development. In this context,
redetermining custody rights should not be viewed as a mere conflict of rights between parents,
but rather as a public duty in which the legal system intervenes to protect the child’s best
interests.
MOST ABOUT THE CHANGE OF CUSTODY CASE
WONDERING QUESTIONS
1-) What is the case of changing custody?
A change of custody case is a family court action filed to request a change of parent responsible
for the child’s care and supervision. The goal is to protect the child’s best interests.
2-) In what cases is it possible to change custody?- The current custody negatively affects the child’s interests,- The parent who has custody does not fulfill his/her obligations,- It is possible if it is determined that the other parent can provide more appropriate care for the child.
3-) Which court can be filed?
A case for changing custody is filed in a Family Court or, in cases where there is no Family Court, in a Civil Court of
First Instance. The case is heard in the court where the child resides.
4-) Is there a statute of limitations for filing a lawsuit?
There is no specific statute of limitations for a change of custody case; however, the change request must be in the best
interest of the child and reflect current circumstances.
5-) Who are the persons who can file a lawsuit?- The parent who does not have custody of the child,- Legal guardians or third parties appointed as guardians of the child,- When necessary, the Public Prosecutor’s Office may file a lawsuit to protect the child’s interests.
6-) What are the documents required to file a lawsuit?- Identity and address information,- Current custody decision,- Documents showing changes affecting the child’s living conditions and custody,- Social investigation reports (if applicable).
7-) Can interim measures be taken during the trial?
Yes. The court may order temporary measures for the child’s safety and best interests, such as temporary placement of the
child with the other parent or personal relationship arrangements.
😎 What is a social investigation report and what is its importance?
The social investigation report is prepared by an expert (psychologist, social worker) and provides the court with information
about the child’s living conditions, the parents’ situations, and the custody arrangement appropriate for the child’s best
interests.
9-) Is the child’s opinion taken into account?
Yes. The court specifically seeks the views of children aged 12 and over. While the child’s views are not the sole determining factor in
the decision, they are taken into consideration.
10-) Will alimony change if custody is changed?
Yes. According to the new custody order, child support and childcare expense contribution rates may be
redetermined.
11-) Does the case for changing custody take long?
The duration varies depending on the court case’s workload and the nature of the evidence. A prolonged trial can
negatively impact the child’s best interests, so interim measures are crucial.
12-) Based on what criteria does the court make its decision?- The best interests of the child,- The impact of current custody on the child’s development,- Economic and social status of parents,- The child’s wishes and psychological state.
13-) Can the decision be appealed?
Yes. A custody change decision may be subject to appeal. The decision will be reviewed by higher courts to
determine its legality and the best interests of the child.
14-) What are the common application problems?- Incomplete or inadequate preparation of social investigation reports,- Not taking the child’s opinion sufficiently,- Lack of agreement between the parties and the reflection of conflicts on the child,- The length of the trial period.
15-) Are there alternative solutions for changing custody?
Yes. Mediation, family counseling, and conciliation processes can be used before or during litigation. The goal is
to develop a solution that reduces conflict and is in the best interests of the child.
COURT OF APPEALS ON THE CHANGE OF CUSTODY CASE
DECISIONS
1-) Supreme Court Decision – HGK., E. 2017/2069 K. 2018/1179 T. 6.6.2018 (Decision that the statement
of the child who is at the age of cognition should be given priority when making a decision regarding
the establishment of a personal relationship);
“…In the light of these explanations, the court decided to change the custody on the grounds that the
mother, who had custody, invited her boyfriends to the house and stayed with them, the child was made to
sleep in the same bed with the mother and her boyfriend, during this time the mother’s boyfriend sexually
abused the child, and according to the child’s statement, he wanted to stay with his father.
The child’s statement was disregarded in the regulation, and a live-in personal relationship was established between the child
and the mother. It was understood that the child in common, Tuana, was of cognitive age as of the date of the case, and in
interviews with experts, she stated, “I don’t want to stay with my mother; I want my father.” Considering the legal regulations
mentioned above, the child’s statement, which is of cognitive age, should be given precedence regarding the personal
relationship, and the defendant mother and the child should be provided with a suitable, long-term personal relationship, not
a live-in personal relationship.
2-) Supreme Court Decision – 5. HD., E. 2022/324 K. 2022/2150 T. 14.2.2022
(Decision on which court is competent in custody cases);
“…According to Article 336 of the Turkish Civil Code, as long as the marriage continues, parents shall exercise joint
custody. In the event of the death of one of the parents, custody shall be granted to the surviving party; in the event of
divorce or separation, the judge must grant custody to one of the spouses. The regulation of custody is related to
public order. According to Article 411 of the same law, authority in guardianship matters belongs to the guardianship
offices in the place of residence of the minor or the person in need. According to Article 19/1, residence is the place
where a person resides with the intention of staying permanently. According to Article 21 of the same law, the
residence of the child under custody is the residence of the mother and father; if the mother and father do not have a
common residence, the residence of the mother or father to whom the child is left; in other cases, the child’s residence
is considered his residence. As a result of the examination carried out considering the provisions of the file, it was
understood that the residence address of the defendant father, to whom the custody of the minor was granted, on the
date of the lawsuit was “Gaziemir/İzmir”. Therefore, the dispute was decided in the 20th Family Court of İzmir. “must be
seen and concluded…”
3-) Decision of the Supreme Court of Appeals – 2nd HD., E. 2019/5178 K. 2019/12215 T.
12.12.2019 (In case of reasons for changing custody, the decision to make a decision by
taking into account the opinion of the child of cognitive age);
“…It is understood that Mert, the child in common, whose custody was awarded to the mother, remains with the
defendant father. The child in common is of a cognitive age and stated in person at the hearing and in the
interview with the expert that he wishes to remain with his father. There is nothing against the child’s best
interests that necessitates disregarding the child’s preferences and opinions. In this case, while Mert’s custody
should have been taken from the mother and given to the father, the written decision was inappropriate and
warrants reversal…”
4-) Supreme Court Decision – 2nd HD., E. 2015/16646 K. 2015/17895 T. 8.10.2015 (Supreme
Court decision regarding the change of custody by taking into account the SIR reports and
the opinion of the child of cognitive age);
“…Although custody of the joint children was granted to the defendant father with the divorce decision, the
children other than … of the joint children actually stayed with the plaintiff mother. The defendant father
did not adequately care for the children. The joint child, born in 2002, who is of a cognitive age, …, stated
that he wanted to stay with his mother. The social assessment report obtained by the court also stated that
it would be appropriate to grant custody of … and … of the joint children to the mother. The existence of an
immediate danger if the custody of these children were granted to the mother has not been proven. The
conditions of Article 183 of the Turkish Civil Code have been met in respect of the joint children … and ….
While the case should have been accepted in respect of these children, it was not found appropriate to
decide to dismiss it….”
5-) Supreme Court Decision – HGK., E. 2017/2069 K. 2018/1179 T. 6.6.2018 (Decision that the best
interests of the child will be taken into consideration rather than the wishes and preferences of
the parents when examining the request for change of custody);
“…The first of these preliminary issues is whether the plaintiff father, who did not appeal the initial court decision, has a legal
interest in appealing the decision to resist. In such cases regarding custody arrangements, which are related to public order
and constitute an exception to the principle of procedurally acquired rights, the title of the appellant is not important, and the
first preliminary issue, which will be concluded that the plaintiff father has a legal interest in appealing the decision when the
best interests of the child are taken into consideration, has been unanimously resolved…”
The Importance of Legal Support
Changing custody cases requires technical knowledge, legislative expertise, and deep expertise in
judicial practices. While the legal provisions are clear, each case has its own unique circumstances, and
even a small mistake can lead to loss of rights. Therefore, working with an experienced attorney from
the beginning of the process is crucial to determining the right strategy, protecting your rights, and
achieving the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications.
A professional lawyer will guide you not only in preparing the petition but also in gathering evidence,
representing the court, negotiating, and pursuing potential alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.