1-) INTRODUCTION
Custody is a central institution in family law for the material and spiritual development of a minor child.
Because custody decisions have long-term legal and social consequences for both the child and the
parents, judicial assessments in this area must be multifaceted and meticulous. Custody regulations in
Türkiye are based on both domestic legal norms (the Turkish Civil Code) and international children’s
rights texts.
2-) Legal Framework — Basic Legislation and Principles
2.1. Turkish Civil Code and related provisions
The Turkish Civil Code (Law No. 4721) regulates custody; starting with the general provision that “a minor child shall be
under the custody of both parents,” the regulation stipulates that custody is shared as long as the marriage continues
and that custody may be revoked/granted to one party only in cases stipulated by law. Furthermore, articles of the
Turkish Civil Code (e.g., Articles 335 and following) determine the scope of custody (care, education, protection,
representation) and the principles governing its regulation.
2.2. The principle of the best interests of the child
The fundamental criterion in custody decisions is the child’s best interests. This principle, in conjunction with the UN
Convention on the Rights of the Child and its reflections in domestic law (TCC and related legislation), prioritizes the
child’s physical, emotional, mental, and social development as a primary criterion for evaluation. Turkey has signed and
ratified the Convention; therefore, international obligations also influence court precedents.
2.3. Age of cognition and obtaining the child’s opinion
Supreme Court precedents and HGK decisions stipulate that the child’s opinion be sought based on their age and cognitive
abilities; in practice, the “cognitive age” is generally accepted as 8 years and older, but this varies depending on the specific
case. The opinion of a child of cognitive age is obtained through an expert (pedagogue/psychologist) and serves as important
evidence in the judge’s evaluation.
3-) Types of Custody and Their Legal Consequences
3.1. Joint custody and sole custody
Custody generally remains joint during a marriage; in the event of divorce or separation, a judge may grant custody to
one parent based on the child’s best interests or may decide to grant custody to one parent as a precautionary measure.
The parent granted custody exercises the child’s day-to-day care and representational authority.
3.2. Removal and change of custody
The law and precedent regulate the ways in which custody can be terminated (e.g., in cases of gross neglect,
abuse, or a criminal conviction) and modified (e.g., when the child’s best interests dictate this). However, in
practice, changing custody requires not only a single reason but also a holistic assessment of the concrete
circumstances and evidence. Supreme Court decisions frequently consider social investigation reports and expert
evaluations as decisive.
4-) Competent Court – Court Process
4.1 Competent Court:The Family Court is the court responsible for handling cases involving the
removal of custody, the transfer of custody from one spouse to the other (change of custody), and
the return of removed custody.
4.2 Competent Court:A case for changing or removing custody is legally considered a non-contentious
court case (HMK Article 382/2-b-13). The court where the requesting party or one of the parties resides
has jurisdiction for non-contentious court cases (HMK Article 384). In this case, a case for changing or
removing custody can be filed in two different competent courts:
A lawsuit to remove or change custody can be filed in the court where the defendant resides, as the
defendant is the relevant person.
A lawsuit for the removal or change of custody can also be filed in the court where the plaintiff
resides (HMK Art. 384).
4.2. Social investigation report (SIR) and expert opinions
The family judge generally requests a social assessment report (prepared by a specialist psychologist/pedagogue/social
worker). The SIR evaluates factors such as the parents’ adequacy of care, the home environment, the child’s school and
social relationships, and financial situation, and provides guidance to the judge. Numerous Supreme Court decisions
emphasize the decisive role of the SIR in custody assessments.
4.3. Evidence: witness, expert, document, expert
The range of evidence in custody cases is extensive: witness statements, school/medical records, criminal records,
expert reports, social media reports, and testimony from the child, whether obtained directly or through an expert. The
judge must evaluate all of the evidence in light of the child’s best interests.
5-) The Child’s Opinion and Right to Expression
5.1. How and when to take it?
The opinion of a child with cognitive capacity is subjectively important; it is generally preferred that the opinion be heard in appropriate
interview rooms outside the courthouse, accompanied by an expert. The Court of Cassation has stated that decisions may be
overturned if the child’s opinion is not obtained properly and with the necessary expertise.
5.2. Weight and limits of opinion
The child’s opinion is not binding; the judge makes the final assessment. However, the child’s preferences, if they do not
conflict with his or her best interests, carry decisive weight in the decision. In some cases, if the child’s preferences undermine
his or her best interests, the judge may decide differently.
6-) Characteristics of Custody of Stepchildren- Spouses are obliged to show care and attention to their minor stepchildren.- The other spouse shall appropriately assist the spouse who exercises custody over his/her own child; he/she shall represent the child
for his/her needs to the extent that the situation and conditions require it.
7-) What is the scope of guardianship?- Mother and father take and implement the necessary decisions regarding the child’s care and education, taking into account his/her
best interests.- The child is obliged to listen to his parents.- Parents give the child the opportunity to organize his life according to his maturity; they take his opinion into
consideration as much as possible on important issues.- The child cannot leave the house without the consent of his/her parents and cannot be taken away from them without legal reason.- The child’s name is given by his/her parents.
😎 Reasons for Changing Custody
A case for change of custody is a case filed in cases where the situation of the party to whom custody was given
changes after the right of custody was given to the mother or father, and the mother or father who received
custody cannot exercise their right of custody as required due to various reasons that arise later, and in cases
where the best interests of the child require it.
For custody to be changed, an incident must occur that has disrupted the parental duties. This
distinguishes changing custody from removing it, as removing custody requires a gross abuse
or gross neglect of parental duties.
The conditions for changing custody are clearly regulated in the Turkish Civil Code (TCC). Article 183 of the
TCC, titled “Changes in Situation,” states: “In cases where new circumstances, such as the parent’s marriage
to someone else, relocation, or death, make it necessary, the judge shall take the necessary measures ex
officio or upon the request of either parent.”
A change in custody, if the reasons listed above occur, also has certain consequences. With a
change in custody, the parent who lacks custody has the right to request personal contact with the
child, and the court must establish this contact. It’s also important to remember that the parent
who is not granted custody is obligated to contribute to the child’s care and education expenses to
the extent of their ability. This type of participation is referred to as child support. This support is
alimony. It is a local court decision regarding the change in custody.
It is an alimony that must be decided as of the date of finalization. (HGK-K.2018/1148).
9-) Conditions for the Removal of Custody
If other measures for the protection of the child fail to produce results or if it is determined that these measures
will be inadequate, the judge will decide to abolish custody in the following cases:- Inability of the parents to properly perform their parental duties due to inexperience, illness,
being elsewhere or similar reasons.- The parents do not show sufficient interest in the child or seriously neglect their obligations towards
him/her.- If custody is removed from both parents, a guardian is appointed for the child.
Unless otherwise stated in the decision, the removal of custody covers all existing and future children.
10-) Obtaining the Child’s Opinion in a Custody Case
In many decisions during custody cases, the Court of Appeals has acknowledged
the need to consult with children. In one decision, it even deemed a decision to
overturn a custody case without consulting children aged 8 and over.(General
Assembly of Law 2017/3117 E., 2018/1278 K.);
“…It is understood that the joint child whose custody is requested to be changed is of the age of reason. Articles 3 and 6
of the European Convention on the Exercise of Children’s Rights and Article 12 of the United Nations Convention on the
Rights of the Child stipulate that the views of children of the age of reason should be sought on matters concerning
them and that their views should be given due weight. The best interests of the child are paramount in custody
arrangements, and if the best interests of the parents conflict with the best interests of the child in this arrangement,
the best interests of the child should prevail. If the best interests of the child require it,
It is also possible for a decision to be made contrary to their views. Therefore, while the court should have
obtained their opinion on the matter of joint child custody, evaluated this opinion, and made a decision based on
the outcome, issuing a written decision on this matter without sufficient review is contrary to procedure and law,
and requires reversal.
11-) Difficulties and Necessary Needs in Implementation
11.1. Difficulties encountered in collecting evidence
Gathering and evaluating evidence in cases such as domestic violence, allegations of abuse, and mutual accusations can be
challenging. The prosecutor’s investigations and the judge’s decision-making schedule may overlap; the judge evaluates the
findings from both processes together.
11.2. The nature of expert reports and the need for standardization
The content of social investigation reports can vary from expert to expert, leading to
inconsistencies in practice. The literature and professional organizations recommend
standardizing report formats.
11.3. Partial solutions: shared care models and alternative dispute resolution
As in European practices, “joint custody/shared care” models in Türkiye can offer an
alternative that is in the child’s best interests when cooperation between parents is
sustainable. Mediation and family counseling practices can also prevent conflicts from
escalating. (Examples and discussions are provided in practice.)
7-) Supreme Court Practices — Trends and Highlights
The key points highlighted in the Court of Appeals decisions are: (i) the absolute priority of the child’s best
interests; (ii) the necessity of obtaining the opinion of a child of cognitive age; (iii) the need to support social
assessment reports and expert opinions with concrete evidence; (iv) the need for concrete and serious reasons for
changing/abolishing custody. HGK and Chamber decisions guide implementation.
CONCLUSION
Custody cases represent a multifaceted legal process that profoundly impacts individuals’ private
lives and has direct consequences for public order. These cases are not merely legal disputes
between parents; they directly impact the child’s physical, mental, emotional, and social
development. In this context, the role of the custody institution is not limited to the care and
education of the child; it also plays a critical role in shaping their personality, preparing them for
the future with confidence, and fostering a healthy relationship with society.
The regulation of custody in Turkish law is fundamentally shaped by the Turkish Civil Code and is
directly related to the principles of family structure and child protection enshrined in the Constitution.
Furthermore, international agreements to which Türkiye is a party—particularly the United Nations
Convention on the Rights of the Child and the European Convention on Human Rights—mandate a
rights-based approach to resolving custody cases.
While the principle of “the child’s best interests,” a fundamental determinant in shaping judicial
decisions, is open to various interpretations in practice, the normative weight of this principle
necessitates a case-by-case assessment. In this context, courts must consider numerous factors,
including the child’s age, developmental level, level of communication between parents, socioeconomic
conditions, and psychosocial environment. In particular, seeking the child’s opinion and giving it due
consideration in accordance with their age and maturity has become a crucial criterion in both
domestic law and ECHR jurisprudence.
Ultimately, custody cases are complex processes at the intersection of individual rights and the public
interest, encompassing not only legal but also sociological and psychological dimensions. This
complexity necessitates a balanced approach in judicial decisions, sensitive to both legal technique and
the human element. Therefore, custody decisions should be evaluated not only within the context of
civil law but also within the broader framework of child welfare policy.
MOST WONDERED QUESTIONS ABOUT CUSTODY CASES
1-) What is a custody case?
A custody case is a family law case filed regarding which parent will have the right to care, education,
protection and representation of the child.
2-) Which court hears the custody case?
The court in charge of custody cases is the Family Court, and in places where there is no family court, the Civil
Court of First Instance.
3-) Who can file a custody case?
The child’s mother or father may file a lawsuit. In some exceptional cases, the prosecutor’s office or the Ministry of Family and
Social Services may also file a lawsuit to remove custody.
4-) How long does a custody case take?
It depends on the specifics of the specific incident, the time it takes to collect evidence, and the social investigation report. On average, it can
take between 6 months and 1.5 years.
5-) What is the basic criterion in custody cases?
In such cases, the child’s best interests are the primary consideration. The parent’s financial situation is not the sole determinant; love,
care, security, and educational opportunities are considered together.
6-) Is the child’s opinion taken into account in custody cases?
Yes. If the child has reached the “age of cognition” (usually around 8 years of age or older), the opinion of an expert will be sought, and the court will take
that into consideration when making its decision.
7-) If the mother is working, can custody be given to the father?
No. The mother’s employment alone does not justify awarding custody to the father. If employment does not interfere with
childcare, the mother may be granted custody.
😎 If the father can provide better financial opportunities for the child, should he be given custody?
No. Financial resources alone are not sufficient. The child’s emotional needs, care, and safety
are prioritized.
9-) What is the evidence in a custody case?
Witness statements, school records, medical reports, social investigation reports, psychologist/pedagogue evaluations,
criminal investigations and the child’s statement are considered evidence.
10-) Can a divorce case and a custody case be heard together?
Yes. During divorce proceedings, the judge makes a decision on child custody ex officio. There is no need to
file a separate lawsuit.
11-) Is the custody decision final or can it be changed?
It is not definitive. Custody can always be changed by re-filing a lawsuit if the child’s best interests
require it.
12-) Is it a general rule that custody of the child is given to the mother?
There is no such explicit provision in the law. However, in practice, decisions are generally made in
favor of the mother, especially considering the care and affection needs of young children (especially
ages 0-6).
13-) What is the importance of the social investigation report in a custody case?
It’s very significant. Experts (psychologists, educators, social workers) evaluate the parents’ circumstances and the
child’s situation. The judge frequently relies on this report in their decision.
14-) Can the parent without custody have contact with the child?
Yes. The court establishes personal contact (visit rights) between the parent who is not granted custody and
the child. This is essential to ensure the child is not deprived of parental love.
15-) Is it necessary to hire a lawyer to file a custody case?
No. It is not mandatory. However, because the case involves technical and sensitive issues concerning the child’s best interests, it would
be beneficial to follow up with a lawyer.
COURT OF APPEALS DECISIONS REGARDING CUSTODY CASES
1-) General Assembly of Laws 2017/3117 E., 2018/1278 K. (Making, changing or
removing a regulation regarding custody of a child who is 8 years of age or older
without consulting the child is not considered lawful and is considered grounds for
annulment.)
“…It is understood that the joint child, whose custody is requested to be changed, is of the age of reason. Articles 3 and
6 of the European Convention on the Exercise of Children’s Rights and Article 12 of the United Nations Convention on
the Rights of the Child stipulate that the views of children of the age of reason should be sought on matters concerning
them and that their views should be given due weight. The best interests of the child are paramount in the custody
arrangement, and in such an arrangement, if the best interests of the mother and father conflict with the best interests
of the child, the best interests of the child should prevail. If the best interests of the child require it, it is also possible to
decide against their views. Therefore, regarding the custody of the joint child,
While the court should have taken the opinion of the applicant, evaluated this opinion and made a decision according
to the outcome, giving a written decision on this matter with incomplete examination is against the procedure and law
and necessitates reversal…”
2-) GENERAL ASSEMBLY OF THE COURT OF APPEALS, DOCUMENT NO: 2013/1926, DECISION
NO: 2015/1139, DECISION DATE: 01.04.2015 (decision regarding the mother having custody
rights not to show the child to the father);
“…It is essential to consider the characteristics of the parents in determining and regulating custody.
Therefore, the court must consider the child’s abandonment, neglect, abduction, voluntary abandonment,
and manipulation, as well as whether the party requests custody, violence, infidelity, economic situation,
profession, living environment, bad behavior, alcohol addiction, health, and erratic behavior. Considering
the aforementioned legal provision, the enforcement files between the files, and the sanctions imposed on
the defendant for resisting the child’s return, it is understood that the defendant mother has consistently
obstructed the child’s right to personal contact with the father. Therefore, she has been sanctioned for
resisting the child’s return, thus violating her obligations stipulated in Article 324 of the Turkish Civil Code.
In this case, it must be accepted that the defendant mother has abused her custody rights by preventing
the eight-year-old child from seeing her father, despite his importance to their development, and that
custody of the child should be taken from the defendant mother and awarded to the plaintiff father.
Therefore, based on the parties’ mutual claims and defenses, the minutes and evidence in the file,
According to the compelling reasons explained in the decision to overturn the case, the decision to
overturn the case, adopted by the General Assembly of Law, should be followed, but resisting the previous
decision is against procedure and law. For the reasons explained, the decision to resist should be
overturned…”
3-) General Assembly of Law DOCUMENT NO: 2017/2-2069 DECISION NO: 2018/1179 (case
of change of custody, mother taking her boyfriend into the house, it is not right to
establish a live-in personal relationship between the joint child and the defendant
mother);
“…In light of these explanations, the court ruled that the mother, who had custody, invited her male friends to stay with
her, and that 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 the child’s statement indicated that she wanted to stay with her
father. However, the child’s statement was disregarded in the personal relationship arrangement, 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, who is of
cognitive age, should be given precedence regarding the personal relationship, and a suitable, long-term, live-in
personal relationship arrangement should be established between the defendant mother and the child, not a live-in
one…”
4-) General Assembly of Law DOCUMENT: 2013/2085 DECISION: 2014/30 (The
dispute is centered on whether it is proven that the mother, who has custody,
has abused her custody rights to such an extent that custody should be removed
or changed.)
“…In the present case, the boy whose custody was given to the mother was born in 2003. The
plaintiff’s witnesses did not make any concrete statements regarding the defendant mother’s faulty
behavior. Although the plaintiff’s father claimed that the defendant mother left their child alone late at
night, it was understood that the mother entrusted the child to her uncle, relying on the care of her
adult brother. Therefore, there is no fault attributable to the defendant mother in this matter.
Furthermore, since no witnesses had eyewitness knowledge of the claim that the defendant mother
took the child to pick olives, it is possible to say that this claim is proven by the method used.
Moreover, both incidents attributed to the mother are isolated and cannot be accepted as being of such a gravity that it
would require a change of custody, since they do not present continuity.
It should be noted that, considering the defendant mother’s younger age and her high school
education, she can clearly take care of the child more easily…”
5-) General Assembly of Law DOCUMENT NO: 2017/2-3117 DECISION NO: 2018/1278 (in the
case of changing custody, the opinion of the child with the power of perception (8 years old)
must be taken);
“…In the present case, the child in common, E…, whose custody change is requested, was 8 years old at the date of the
case, 10 years old at the date of the decision, and 12 years old at the date of the reversal decision. The child in common
was at the age of reason at all stages of the case. In the statement taken by the experts, it was stated that the child in
common, who was at the age of reason, stated that he wanted to be with both his mother and father and had not made
any preferences. The conclusion of the report dated 17.06.2015 also stated that the child was mature enough to
determine and express his own wishes and desires, and therefore, the child’s statements should be taken into account.
Furthermore, the report dated 01.06.2015, which is included in the file and was prepared by the guidance counselor on
duty at the school the child attended, stated that the child was introverted and absent-minded, that he shook his legs
when talking, and that he gave ambiguous and contradictory answers to questions such as “uh-huh” that could be
easily changed. Moreover, since the date of the case, the child has not had the opportunity to evaluate the environment
in which he lives or wants to live. It is also seen that a long period of time has passed that necessitates obtaining his
opinion on the matter of custody.
For the reasons explained above, the court should consult the child, who is deemed to have sufficient cognitive
capacity, on the custody issue that directly concerns him/her, and provide him/her with the opportunity to express his/
her opinion along with the reasons. If this opinion is not contrary to the child’s own interests, it should be taken into
consideration and a decision should be made based on the outcome.
The Importance of Legal Support
Custody cases require technical knowledge, legislative expertise, and in-depth 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 outset 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.