ENTRANCE
Regulating a child’s relationship with their parents is a central issue in family law, particularly
in the event of divorce or dissolution of marriage. In this context, the right of a parent or other
third party to maintain personal contact with a child was until recently viewed as a demand for
greater contact. However, today, this right can be limited, or even abolished entirely, if the
child’s best interests are compromised.
1-) Legal Regulation
1.1 Legal regulations
In Turkish law, the child’s right to establish personal relationships, and regulations regarding its
abrogation, are specifically included in the Turkish Civil Code (TCC). In summary:- Article 323 of the Turkish Civil Code (TMK) allows each parent to establish an appropriate personal relationship with a child
who is not under their custody or who is not left to their care.- Article 324 of the Turkish Civil Code deals with the situation regarding the limits and abolition of the right to establish personal
relations: cases such as “using one’s own right in violation of the obligations in the first paragraph”, “endangering the child’s
peace”, “not taking serious care of the child” are listed.- Article 325 of the Turkish Civil Code (TMK) regulates that third parties (e.g. relatives) may also request to establish a personal
relationship when the best interests of the child require it.
Article 326 of the Turkish Civil Code (TMK) addresses regulations regarding jurisdiction and competent courts. Furthermore,
doctrines and jurisprudence referencing the best interests of the child and international law also constitute the normative
framework in this area.
1.2 Concepts and their meanings- The right to personal relationship means that the parent who does not have custody rights or another relevant person who is not with
the child can establish a relationship with the child in ways such as meeting with the child, communicating with the child, and spending
time together on certain days and hours.- This right is personal, non-transferable, and waiver is generally not possible.- The abolition lawsuit is a private legal action filed to completely eliminate this right; that is,
the right to personal relations is terminated by court decision.- In other words, it is possible to evaluate this case within the scope of “denial or taking away of the right to personal
relations”.
1.3 The principle of the best interests of the child
The primary principle that must be addressed in every regulation is to safeguard the child’s physical,
spiritual, mental, moral, and social development, and to ensure the child’s peace and security. The removal
of personal contact is only permissible if this principle of best interests is concretely jeopardized. Doctrine
classifies this as an “exceptional measure.”
2-) Conditions of the Case for the Abolition of Personal Relationship
2.1 General conditions
A decision to remove is possible under a comprehensive set of conditions. These conditions include:- There is a concrete fact that the child’s best interests have been harmed.- The exercise of the right to personal relations endangers the child’s well-being.- It has been determined that the mother/father or the person in question does not fulfill the requirements of the personal relationship
arrangement and does not seriously care for the child.- Circumstances that are regulated as “other important reasons” but are not explicitly listed in the law: such as use of
violence, abuse, addiction, criminal activity, etc.- Before a decision is made, the child’s opinion must be taken (if he has the power of discernment) and evidence such as a social
investigation or expert report must be submitted to the file.
2.2 Procedural matters to be taken into consideration- There is no specific limitation period or limitation period for the abolition action; that is, the right does not expire.- It is appropriate for the court to conduct a social investigation and, if necessary, obtain an expert opinion before or
during the lawsuit.- The decision cannot be executed before it becomes final; the personal relationship cannot be completely terminated without a
final judgment.- The decision must be reasoned; abstract expressions such as “establishing a relationship disturbs the child’s peace”
are not deemed sufficient.
2.3 Parent-third party distinction- The circumstances for the parent are more specific: the parent who does not have custody has the right to establish
personal relations with the child; factors such as the parent’s failure to fulfill their responsibilities play a role in its
removal.- For third parties (TCC Art. 325), “extraordinary circumstances” are required; therefore, the existence of the right to
establish a relationship with a third party and the subsequent removal of the right to relationship may be necessary for
the removal case, but this is a less common situation.
3-) Authority, Competent Court and Procedure
3.1 Competent court
The courts that have jurisdiction over cases involving the dissolution of personal relationships are generally Family
Courts. In areas where there is no family court, the Civil Court of First Instance hears these cases as the Family Court.
3.2 Competent court
According to Article 326 of the Turkish Civil Code, the court of the child’s place of residence has jurisdiction. Determination of place of residence – if the
child is under custody, the place of residence of the person exercising custody; if not, the legal basis for the child’s place of residence.
determined in accordance with the regulations.
3.3 Procedural stages
Petition:The facts that form the basis of the removal request must be clearly explained, and relevant documents and evidence
must be attached.
Obtaining the child’s opinion:Children with discernment should be consulted and their opinions should be
listened to.
Expert/institution reports:A social examination or psychologist/psychiatrist report is required regarding issues such as the
child’s mental state, development, and the quality of relationships.
Decision:The court may decide to remove, limit, or terminate the application entirely, depending on the
facts. The decision must be reasoned.
Execution:No enforcement action can be taken to terminate the relationship before the decision becomes final.
4-) Burden of Evidence and Evidence to be Seek by the Court
4.1. Evidence that can be put forward in court
The party requesting the termination of a personal relationship must support the alleged danger and harm with concrete,
objective, and reliable evidence. Statements alone are generally not considered sufficient; in particularly serious allegations
(violence, abuse), forensic and medical records, police/prosecutor’s records, witness testimonies, and expert reports are
required. The Supreme Court of Appeals emphasizes that termination cannot be ruled on vague or contradictory evidence.
4.2 Important evidence to be considered by the court- Police report, forensic report, medical reports (injury, sexual health evaluations).- Prosecutor’s Office investigation/prosecution documents.- School/psychologist/guidance reports and documents showing changes in the child’s behavior.- Witness statements (family members, neighbors, teachers).- Written/electronic communication records (messages, emails, video/audio recordings).- Social investigation report (SIR) and psychological expert reports.
5-) The central role of the social investigation report (SIR) and expert evaluation- The court often requests a social assessment report; the SIR objectively demonstrates the family’s living
conditions, capacity for care, the child’s behavior and development, and the nature of the parent-child
relationship. Supreme Court decisions clearly consider the SIR as guiding and often decisive evidence for
requests to lift the SIR. Furthermore, the methodology and completeness of psychological/expert reports
influence judicial discretion.
6-) Important Jurisprudence and Examples in Practice- In a decision of the Supreme Court, the court decided to completely remove the child’s personal relationship with his father
because, according to the child’s statement, he did not want to meet with his father and the social investigation reports
determined that the father was disinterested in the child.
In practice, decisions to restrict or abolish the right to contact of a parent or other person who does not fulfil
the requirements of the personal contact regulation have increased.- In addition, courts are skeptical about regulations such as “waiver of the right to personal relationship” or “undertaking as to
whether or not the right to establish a relationship will be granted” included in the divorce protocol; because the right is a right
that must be evaluated by taking into consideration the best interests of the child, and waiver is generally not considered valid.- Not taking the child’s opinion or not including this opinion in the justification of the decision even if taken,
is considered as incomplete evaluation by the courts.- Concepts such as “endangering the child’s well-being” or “serious indifference” must be reflected in
concrete circumstances. Abstract allegations alone are not sufficient for a decision.- Even if a decision to remove is made, it is possible for the conditions to change later; in this case, a reorganization case
may be brought to the agenda.- The condition of finality is important for the enforceability of the decision; the court gives its decision, but the old
order continues until it becomes final.
7-) Legal Procedures, Authority, Precautionary Measures
7.1. Legal remedies and jurisdiction- A lawsuit to terminate personal relationships is filed with the Family Court in the child’s place of residence, or, if
there is no Family Court, with the Civil Court of First Instance. The court has the authority to conduct an ex officio
review when the child’s best interests require it.
7.2 Duration and statute of limitations
There is no specific statute of limitations for terminating a personal relationship; a lawsuit can be filed
as soon as the danger arises or is known. In practical cases, temporary measures can be sought
through interim measures.
7.3 Precautionary measures
If there is a concrete and immediate danger, the judge may issue preliminary measures (e.g., temporary suspension of visits,
supervised visits, restraining order, protective measures). These measures are in place until the conclusion of the main case
and require substantial evidence.
😎 Tendencies of the Supreme Court and the High Council of Judges and Prosecutors
Heavy evidence requirement:The Supreme Court requires the existence of grave, clear, and recurring dangers for
decisions to completely remove personal contact; otherwise, it recommends solutions such as restrictions or supervised
visitation.
Importance of the social investigation report:The existence and nature of SIR in the majority of decisions
is decisive; if the SIR is missing, decisions can be overturned.
Invalidity of protocol and waiver:It is accepted that parents cannot waive their personal relationship rights
through agreements between them and that the court makes independent decisions considering public order.
9-) Establishing Personal Relationships Through Electronic Communication
With the COVID-19 pandemic, courts have begun to include in their court orders the provision of personal contact
via electronic means such as video calls/phone calls due to reasons such as geographical distance or health.
Electronic communication can be used as a temporary or permanent arrangement, provided it does not
jeopardize the child’s safety; the court can impose both access and security measures.
😎 Major problems and criticisms in practice- Lack of standardization in social investigation reports:Inconsistencies may arise between report
formats and expert assessments, which may lead to arbitrariness in implementation.- Difficulties in collecting evidence:In domestic cases, gathering evidence can be difficult (secrecy, embarrassment, lack of
evidence); this creates an obstacle to determining the actual damage.- Imbalance in precautionary choices:Courts can sometimes be either too easy to remove or, on the
contrary, overprotective; the ideal is to find a middle ground that does the least harm to the child.
CONCLUSION
The removal of personal contact with a child is one of the most sensitive, delicate, and consequential
matters in family law. This case is not merely a matter of restricting the rights of parents or third parties; it
is, in essence, an expression of the law’s most fundamental ethical obligation to protect the child’s best
interests. This is because personal contact directly impacts a child’s emotional world, their sense of
belonging, their bonds of affection, and their identity development. Therefore, removing this contact is a
measure that should only be resorted to in extraordinary circumstances, under circumstances of necessity,
and after a comprehensive assessment.
Article 324 of the Turkish Civil Code clearly defines the removal of personal contact as an “exceptional”
method. However, in practice, the framework of this exception is not always meticulously maintained.
In some cases, the projection of parental conflict onto the child, and in other cases, the
misinterpretation of the child’s temporary emotional reactions, can lead to undue restrictions on the
right to personal contact. In this regard, the courts’ duty is to go beyond emotional conflicts and assess
the child’s physical and psychological integrity using objective criteria and support their decisions with
concrete data.
In the removal decision-making process, the child is heard, expert reports are considered, the
child’s living conditions are examined, and the reasoning for the decision is explained in detail.
These safeguards are crucial not only for a fair trial but also for the child’s future
development. A removal decision completely severs a parent or relative’s connection with the
child and can have lasting effects on the child’s social environment, sense of security, and
identity.
Therefore, when deciding to terminate personal contact with a child, the judge must consider not only the
current situation but also the impact the decision will have on the child’s future development. The protective
function of the law is fulfilled by ensuring the child’s present well-being while also considering their long
term well-being.
In conclusion, the case for the removal of personal contact with a child is not merely a legal action. It is
a crucial issue for the family order and the child-parent relationship. The measure here is not the
mother’s or father’s wishes, but the child’s quality of life. Every decision is an intervention that shapes
the child’s future. Therefore, courts must make decisions with a holistic approach, considering
psychology, sociology, pedagogical sciences, and legal disciplines. Only in this way can a legal order
that balances both justice and mercy be achieved.
THE MOST RELATED TO THE CASE OF REMOVAL OF PERSONAL RELATIONSHIP
WONDERING QUESTIONS
1-) What is the case of abolition of personal relationship?
This case involves a court order limiting or completely removing the non-custodial parent’s
personal contact (visitation/visitation) with the child. The judge’s decision is based on the
child’s best interests.
2-) Who can file this lawsuit?
The parent who has custody of the child generally files a lawsuit; the public prosecutor’s office or the
Ministry of Family and Social Services may also file a lawsuit on child protection grounds. Third-party
litigants (e.g., relatives) are possible in certain circumstances, but removal requests are generally filed
by the parents/guardian.
3-) Which court has jurisdiction / which is the competent court?
The competent court for cases involving the dissolution of personal relationships is the Family Court; if there is no family
court, the Civil Court of First Instance (as the Family Court). The competent court is usually the court of the child’s place
of residence.
4-) What legal conditions/conditions are required for removal?
Removal is an extraordinary measure. Generally, the requirement is for concrete, recurring, and severe circumstances
(physical/sexual abuse, risk of abduction, persistent trauma, etc.) that seriously threaten the child’s physical/
psychological integrity. The judge will prioritize less intrusive measures (supervised visitation, restrictions).
5-) What is the burden of proof in this case — which evidence is acceptable?
The party requesting removal must support their claim with concrete and reliable evidence. Effective evidence includes:
forensic/medical reports, police/prosecutor’s records, school/psychologist reports, witness statements, text/video
recordings, social investigation (SIR), and expert reports. Mere allegations are often insufficient.
6-) Can the court issue interim measures in an emergency?
Yes. If there is a concrete and immediate danger, the judge may impose interim measures (e.g., temporary termination of the
relationship, supervised visitation, restraining order) pending the final decision. These interim measures are based on concrete
danger and evidence.
7-) How does it affect the child’s opinion (expression)?
The opinion of children with cognitive abilities is taken; the interview is usually conducted through an expert (psychologist/pedagogue).
The child’s statement is not binding, but it carries significant weight in the evaluation of the decision.
😎 If the personal relationship is completely removed, is this permanent — can a lawsuit be filed
again later?
Removal decisions are subject to review; if the child’s circumstances change, the parties can refile the
lawsuit and change the arrangement. The court will reassess the child’s best interests in each specific
case.
9-) What is the role of the social investigation report (SIR)?
The SIR is a central assessment tool for the court: it provides objective assessments of the family’s circumstances, the
nature of the parent-child relationship, the child’s needs, and risk factors. In Supreme Court practice, the existence and
nature of the SIR can be decisive in decisions to terminate the SIR.
10-) What is the place of electronic/video calls in the decision to remove them?
Courts may regulate electronic meetings, particularly in cases of geographic distance or health/access
issues; however, electronic communication is restricted or subject to security requirements if it threatens
the child’s safety. This method has been used more frequently in post-COVID practices.
11-) What happens if the custodial parent arbitrarily prevents personal contact?
In the event of obstruction, the other party may pursue enforcement; the court-issued personal relationship order may be
enforced and sanctions may be imposed. In the event of persistent obstruction, legal remedies such as a change of custody
may be considered.
12-) Can third parties (grandfather, grandmother, etc.) request the removal of personal relationships?
The Turkish Civil Code (TCC) grants third parties (such as relatives) the right to request personal access to a child in certain
exceptional circumstances; however, requests for removal are most often made by the parent or guardian. A third-party
request for removal must be linked to the child’s specific interests and best interests.
13-) What is the direction of the Supreme Court’s practice — what principles are emphasized?
The Supreme Court generally emphasizes the principles that: (i) the removal of personal relationships is exceptional, (ii)
substantial and concrete evidence is required, (iii) the importance of confidentiality agreements and expert reports, and (iv) the
court must conduct an independent assessment, taking public order into account. Restrictions or supervised visits are often
preferred over complete removal.
14-) How long does the case take / what are the stages in the process?
The timeframe varies depending on the specific case; urgent preliminary injunction requests can be resolved quickly, while the substantive review, with requests for a
preliminary injunction and expert witnesses, can take six months to a year or longer. The stages are: petition, procedural review, preliminary injunction (if applicable),
preliminary injunction/expert witness review, hearing, and decision.
15-) Practical advice — what should be done for the claimant and the defender?
Claiming party (requesting removal):Support the allegations with concrete evidence (medical reports, police reports, school
reports, witnesses), request a SIR; if there is an emergency, request precautionary measures.
Defending party (against removal of personal relationship):documents that refute the allegations, regular maintenance
Provide supporting evidence, alternative arrangement suggestions, and expert reports that are in the child’s best
interests. A lawyer and expert support (psychologist/psychiatrist, social worker) are essential for both parties.
REGARDING THE CASE FOR THE REMOVAL OF PERSONAL RELATIONSHIP
Supreme Court Decisions
1-) Court of Cassation 2nd Civil Chamber, Case No. 2013-11644, Decision No. 2014-1866
(Consensual Divorce Protocol Cannot Contain Clauses Preventing the Use of Civil Rights);
“…The covenants in the protocol regarding the renunciation of civil rights, which include the prohibition of filing a
lawsuit to abolish custody and expand personal relationships, constitute a pre-emptive renunciation of the right
to exercise civil rights and are clearly contrary to Article 23 of the Civil Code and the best interests of the children.
Since it is clear that divorce cannot be achieved by mutual consent without these provisions, the partial invalidity
of the terms contained in the protocol renders the entire divorce protocol invalid…”
2-) Court of Cassation 2nd Civil Chamber, Case No. 2011/2727, Decision No. 2012/204 (Decision on the
Abolition of Custody Rights Does Not Eliminate the Right of the Mother and Father to Establish
Personal Relationships with Their Children);
“…The removal of custody rights does not eliminate the right of parents to establish personal relationships
with their children. A child who is separated from one or both parents has the right to establish and
maintain regular personal relationships with both parents, unless it is contrary to their best interests
(Article 93 of the Convention on the Rights of the Child). Such personal relationships may be restricted or
prevented only if the child’s best interests require it or if the parents misuse these rights (Article 42 of the
European Convention on the Establishment of Personal Relations). Given that there is no evidence in the file
that the mother will misuse her right to establish personal relationships with her children or that such a
relationship would be contrary to the child’s best interests, the plaintiff, from whom custody was removed,
should have established personal relationships with her children for appropriate periods. The failure to
observe this requirement is procedurally and legally necessary and necessitates a reversal…”
3-) Supreme Court Decision – 2nd HD., E. 2012/2698 K. 2012/22458 T. 25.9.2012 (it was stated that the adopted minor
knew his biological mother and that severing their relationship would have a negative impact on the minor,
establishing a personal relationship would contribute to the development of the minor, therefore the decision
regarding the establishment of a personal relationship between the minor and the biological mother for appropriate
periods of time);
“…While the adoption of a minor by another family severs the personal relationship between the birth mother and
father and their child, it does not permanently eliminate this right as a requirement of the lineage between them and
their birth family. This relationship can be re-established by a judge’s decision, provided the conditions are met and to
the extent it is in the minor’s best interests. The regulation in Article 325 of the Turkish Civil Code allows this. This
provision stipulates that, in the event of extraordinary circumstances, the right to request personal contact may be
granted to other persons, particularly the child’s relatives, to the extent it is in the child’s best interests. The plaintiff is
the biological mother of minor K1, born on December 21, 2002, who was adopted by the defendants. They have a first
degree blood relationship (TCC Art. 17/2). The social assessment report prepared by experts upon the court’s request
stated that the child knows his real mother, that severing his relationship with his mother would have a negative
impact on the minor and would contribute to the development of personal contact. There is no serious reason or fact in
the file to suggest that the minor’s personal relationship with his biological mother would be contrary to his best
interests. Since the plaintiff knows that his child was adopted by the defendants and the minor knows about his
mother, the plaintiff no longer has any right to be a parent.
The confidentiality of records related to the adoption can no longer be considered. Therefore, while the acceptance of the request should have
established a personal relationship between the plaintiff and the defendants’ adopted child, K1, for a reasonable period of time, the dismissal of the case
was not deemed appropriate.
The Importance of Legal Support
Personal relationship removal 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 developing 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 alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.