The Best Interests of the Child Principle in Custody Cases

This article is an English translation of the Turkish original published by the office.

Custody is one of the three main parts of Turkish family law, which is regulated in the Turkish Civil Code No. 4721 under the headings of marriage, kinship and custody. Custody is among the issues on which spouses disagree most in divorce cases, and even after divorce, lawsuits to change custody are common. In both divorce cases and post-divorce change-of-custody cases, the main criterion the courts apply is the best interests of the child. In this article we examine that principle.

On what basis is custody granted?

Under Turkish law, parents exercise custody jointly during marriage. On divorce, however, under Article 336/3 of the Civil Code custody belongs to the parent to whom the child is entrusted. In an uncontested divorce, the parties have already agreed on this point, and the judge grants custody to the parent agreed in the protocol. In a contested divorce, both parties usually ask for custody, so the court grants custody to one parent according to the circumstances and orders personal contact between the child and the other parent. On what basis does the judge decide — which criteria determine the choice? The answer lies in the best interests of the child.

In applying this principle, the judge carries out a thorough examination. After hearing the parents’ requests and claims, the judge hears any witnesses, hears the child if necessary and if the child is not too young, obtains a social investigation report on the child and, in light of all this, grants custody to the person with whom the child will be better off. Under settled Court of Cassation case law, children over the age of eight are considered to have the capacity to understand, so their views on custody are taken in court.

Actions to change custody

As explained above, custody may be settled in the divorce case, but it may also become the subject of a new case because of changed circumstances after the divorce. The parent who was not granted custody may sue the parent who holds custody and ask the court to transfer custody. The claimant argues that the custodial parent is not exercising custody properly, that circumstances have changed since the divorce, and that the child’s best interests require custody to be transferred. The claimant must prove that it is in the child’s interest to live with them and for custody to be granted to them. As a family law matter, the case is heard by the family courts, just like divorce cases.

The court investigates of its own motion

The provisions on custody in Articles 335–351 of the Civil Code are, as a rule, of public order. The principle of ex officio investigation therefore applies in custody cases, as many Court of Cassation decisions emphasise:

The essential purpose of regulating custody is to protect the minor’s interests and secure their future. The custody provisions in Articles 335–351 are, as a rule, of public order, and since the principle of ex officio investigation applies in custody cases, the judge is not bound by the parties’ requests. When examining a request to change custody, the best interests of the child, rather than the wishes and preferences of the parents, are taken into account. (Court of Cassation, Assembly of Civil Chambers, 2017/3117 E., 2018/1278 K., 27 June 2018)

The Court of Cassation reverses judgments where this principle has not been applied. In one example, a family court decided on a request to grant custody to the mother without holding a hearing under the simplified procedure. The Court held that custody cases concern public order, that the parties had relied on witness evidence, that witnesses might reveal new facts requiring a different arrangement in the child’s best interests, and that giving the parties the opportunity to prove their claims is a requirement of the right to be heard under the right to a fair trial; deciding on incomplete examination was contrary to procedure and law. (Court of Cassation, 2nd Civil Chamber, 2013/21470 E., 2014/4695 K., 4 March 2014)

The child’s best interests are the decisive criterion

If the child is over eight, the child’s statement must be taken at the hearing. But even if the child says they want to live with one parent, the court is not bound by that statement and must still consider the child’s interests. Sometimes, for various reasons, a child may say they prefer a place that is not healthy for them. In such a case the judge may decide contrary to the child’s wishes. In one case, the first-instance court left the custody of three children with the father because the children said they wanted to stay with him. The Court of Cassation noted that the father had stated that he had used cannabis for 22 years; although the children had said they wished to stay with their father, their view could not be followed because it was not in their interests. Citing Article 3 of the UN Convention on the Rights of the Child, Article 11 of the European Convention on the Exercise of Children’s Rights, the relevant provisions of the Civil Code and the Child Protection Law, the Court held that the child’s physical, mental, emotional, moral and social development must be secured and that custody should have been given to the mother. (Court of Cassation, 2nd Civil Chamber, 2018/4740 E., 2018/10168 K., 26 September 2018)

Custody cases require care in many respects; advice from an experienced lawyer helps avoid any loss of rights.

Türker Law Office provides legal representation and advice on determining custody in divorce cases, changes of custody, personal contact with the child and other custody-related family law disputes.