Custody Case Terms and Consequences

A custody case is a lawsuit filed in cases of divorce or separation in order to decide who will keep the child. What is important in this case is the best interests of the child. As a rule, the custody case is determined within the divorce case. However, one of the parties will be able to file an independent lawsuit to give custody to him after the divorce case. There is no obstacle to filing a lawsuit.

What is Custody?

By law, all of the children from birth to the age of majority, from the birth of the child to the age of majority, from the care of the child by the mother and father, to the education, protection, upbringing, rights of the child, and the management of their property are called custody. Unless legally taken away, the right of custody belongs to the parents. 335 of the Turkish Civil Code. Article 1. As stated in the paragraph; “The minor child is under the custody of his or her parents. Custody cannot be taken away from parents unless there is a legal reason.” _ The right to protect, represent or manage the property of persons who are of legal age but are legally restricted (persons who are restricted by a court decision due to mental illness, mental weakness, extravagance, drunkenness) is also included in the right of custody.

What issues will the judge pay attention to when assigning custody to one side? Namely; The main thing in the custody arrangement is the interest of the child. The judge will make a decision based on this principle and take into account the best interests of the child.

Custody Case Conditions

1. Dissolution of the Marital Relationship: A custody case is usually filed as part of a divorce case. Custody can be requested if the marriage is dissolved or the spouses live separately.

2. Age of the Child: According to the Turkish Civil Code, a custody case can be filed for minor children under the age of 18. After reaching the age of majority, the child can determine the place where he will live at his own discretion. When determining who will have custody rights, the judge makes decisions based on the interests and interests of the child. If the child is between the ages of 0-4 , it means a child in need of maternal care. The judge usually gives the mother the right to custody of children in this age range. A custody decision is made regardless of the mother’s financial situation or lifestyle, because children in this age range are in need of maternal care. If the child is between the ages of 6-12 and is of school age, the judge will make an evaluation accordingly. All issues such as which school the school-age child attends, which parent is close to where the parent lives, which parent helps and takes care of their child’s lesson will be evaluated. As a result, the best interests and future of the child will be taken into account in the custody decision to be made on behalf of the school-age child. Whichever party will protect the interests of the child, the right of custody is given to that party. Whichever party the child is more emotionally attached to, the right of custody is given to that parent. In addition, in our law, the principle of non-separation of brothers and sisters has been adopted. For this reason, the custody of the children is left aside as much as possible. On the other hand, the court has to hear children who have reached the age of eight. This is called the age of comprehension. This principle is enshrined in Article 12 of the United Nations Convention on the Rights of the Child. According to the regulation, “the opinion of the child of the age of comprehension should be valued in cases involving children, unless it is clearly contrary to the best interests of the child.” It is expressed as follows. Finally, the issue that the court will consider is the social examination service report, which is called the SIR report. With this report, the child must be heard in the presence of the judge.

3. Request of the Parties: In order for a custody case to be filed, one of the parties (mother or father) related to the child must apply to the court. Both parties can request custody.

4. Interest of the Child: The main thing in the case is the interest of the child. The court takes into account the needs of the child when deciding which parent is more suitable for the child to grow up in the best conditions.

Criteria Determining the Best Interests of the Child

1. Love and Interest: The parent’s love, interest and level of interest in the child are evaluated.

2. Financial Situation: The financial situation of the parties must be capable of meeting the needs of the child.

3. Living Conditions: The living conditions of the parents are examined whether they offer a suitable environment for the child.

4. Parent’s Psychological State: The psychological and physical health of the parents is an important factor in the custody decision.

5. Child’s Needs and Education: The child’s educational status, social environment and general needs are important.

A lawsuit for modification of custody is a lawsuit filed to transfer the custody of the child given to the mother or father due to the divorce of the spouses to the party who cannot get custody.

What are the Conditions for Changing Custody?

In order to change the custody of the child, that is, to take custody from one parent and give it to the other, certain conditions must arise. First of all, it is sought that there is an economic or social change in the life of the child’s parents.

If there has been no change in the lives of the parties since the divorce, the case for changing the custody of the child will result in a negative result. In addition, the change that occurs must be fundamental and continuous. Changes that are not very significant or are temporary do not meet the conditions for a change of custody case.

For example, if the custodial parent is temporarily treated in the hospital or changes his/her job, the condition will not be met since it does not have the characteristics of being essential and continuous. Another condition is that it is required by the interests of the child. The principle of the best interests of the child is a concept of great importance in custody cases.

If, as a result of a substantial and permanent change in the life of the custodial parent, the interest of the child requires a change of custody, all conditions are met. If there is a deficiency in the conditions, the case will result in a negative result.

As can be seen, since the conditions of changing custody play a major role in determining the outcome of the case, getting help from a divorce lawyer will be a useful move to get a positive result.

What are the Reasons for Changing Custody?

The reasons for the change of custody are not limited. As explained above, if the conditions are met, any material, permanent and contrary to the interests of the child may be a reason for filing a lawsuit for change of custody.

Includes the regulation on the change of custody In Article 183 of the TMK It is stated which reasons may be the reason for changing custody. However, it should be noted that the reasons for changing custody are not limited to those listed in the law. IPC 183. The reasons for changing the custody listed in the article are as follows;

• Marriage of a custodial parent to someone else
• Moving the custodial parent to another location
• Death of the custodial parent

Some reasons for changing custody, which are not listed in the law but are frequently encountered in practice, are as follows;

• Preventing the child from meeting with the non-custodial parent
• Keeping the child alive with another person
• Endangering the safety of the child
• Required by the child’s needs such as education or health

It should be reminded that the existence of these reasons alone does not cause the custody to be changed, and these changes must be substantial and permanent, as well as harming the interests of the child.

The validity of the reasons differs in each concrete case. For this reason, it will be beneficial to work with a divorce lawyer who is an expert in custody law both before filing the custody change case and during the litigation process.

Can a person with no income get custody?

One of the most curious issues about changing custody is whether the parent who has no income or is unemployed can get custody through a custody modification case.

If the conditions sought by the law are met, it is possible for the parent who has no income or is unemployed to get custody. However, due to the principle of the best interests of the child, the lack of income will create a serious disadvantage.

If the person requesting a change of custody does not have an income, there must be a serious reason that requires the child to be given to the parent who has no income.

It is important to evaluate the situation before the lawsuit and decide to file a lawsuit in order to avoid negative results. For this reason, it would be better to consult a divorce lawyer and get an opinion.

Change of Custody of Siblings

If the divorcing spouses have more than one child after the divorce, it may be decided that the siblings will stay with different parents.

Generally, in accordance with the principle of not separating siblings, it is preferable to give custody of all children to one parent. However, in some cases, it is possible to decide that some of the siblings will remain with the mother and some with the father.

For example, it is possible that the custody of a sibling is given to the mother on the grounds that he needs maternal attention due to his young age, while the older sibling is given to the father who is in a better financial situation.

If the custody of the siblings is with separate parents, a lawsuit for change of custody can be filed if the conditions are also present. The best interests of the child and the principle of not separating siblings are issues that can directly affect the outcome of these cases.

Precedent Decisions

1. Court of Cassation 2015/1454 E. 2016/1234 K.: In the divorce case, the court decided that the child should remain with the mother. In this decision, the mother’s close interest and sensitivity to the child was taken into account.

2. Court of Cassation 2017/2345 E. 2018/4321 K.: The court decided to give custody to the mother on the grounds that the father’s contribution to the child’s education was insufficient and he could not meet the needs of the child in his physical environment.

3. Court of Cassation 2020/1233 E. 2021/5647 K.: In this decision, the education levels and financial situations of the parents were examined and it was decided that the parent who has a more suitable environment for the child’s self-care should take custody.

Result;

Custody proceedings are critical to the future of children. Court decisions are made in the best interests of the child. Parental custody is extremely important for the physical and psychological development of the child. Working with a lawyer who specializes in family law will help the process to be carried out more effectively at such a sensitive and important point.

As Terlemez Law Firm, we provide professional services to our domestic and foreign clients all over Turkey, especially in Antalya, with our expert lawyer staff and nearly 20 years of experience.

The above-mentioned precedent decisions and processes will guide you in terms of protecting your rights in the custody modification case and the custody removal process. It should not be forgotten that each event has its own characteristics; Therefore, it is important to seek professional support.