Change of Custody Case

CUSTODY CHANGE CASE

The Turkish Civil Code stipulates that custody may be changed in accordance with changing circumstances, prioritizing the child's best interests. Therefore, court decisions regarding custody are not final judgments.

Custody can be changed if the circumstances of the parent holding custody change, if the child's best interests are disregarded, or if the requirements of custody are not fulfilled. This change of custody is only possible through a court order.

To change custody, the parent who does not have custody rights can file a lawsuit alleging that the child's best interests are being harmed, that custody rights are not being properly exercised, or that the parent holding custody is not caring for or is mistreating the child. Family courts are the competent courts for custody change cases.

The Turkish Civil Code lists certain conditions that must be met in order to file a lawsuit to change custody. These are as follows:.

• The parent who has custody marries another person
• The parent who has custody moves to another location
• In cases where the parent with custody dies, is imprisoned, undergoes alcohol treatment, or enters a vegetative state, the other parent may request a change of custody.

In cases where custody is revoked, the custodian may request its revocation if they fail to protect the child's best interests, neglect their education, or fulfill the obligations of custody. However, the judge may revoke custody unilaterally if deemed necessary, even without a request from any party. Nevertheless, the revocation of custody does not eliminate responsibility for the child or the obligation to provide child support.

In the decision of the Supreme Court's General Assembly of Civil Law dated October 1, 2003, numbered 2003/2-513 E. 2003/521 K.;

"...The child said, 'I feel more comfortable with my mother, I want to stay with my mother.' The child was born in 1989. They are old enough to understand where they should live. In determining custody, the environment where the child feels psychologically comfortable is the primary consideration. It is undeniable that the father frequently beat the mother, most recently in the middle of the street.".

The father's behavior has affected the child's psychological development. Because of this impact, the child wishes to stay with the mother. This wish of the child should be taken into account in determining custody. For the child, staying with the mother and growing up in that environment will positively affect their psychological development. Custody should be granted to the mother. It appears that this aspect was overlooked in the initial review and the judgment was upheld; therefore, the plaintiff's request for correction of the decision should be accepted and the judgment overturned… ) The case was remanded for retrial, and after the retrial, the court upheld its previous decision.

….Based on the mutual claims and defenses of the parties, the records and evidence in the file, the justifying reasons explained in the reversal decision, and especially the United Nations Convention on the Rights of the Child, approved by the United Nations General Assembly on November 20, 1989, entered into force on September 2, 1990, ratified by the Republic of Turkey, and published in the Official Gazette dated January 27, 1995, and numbered 22184, the following provision applies: “States Parties shall recognize the right of the child who is capable of forming his or her own views to express those views freely in all matters affecting him or her, and shall give due consideration to those views in accordance with the age and maturity of the child. To this end, the child shall be given the opportunity to be heard, either directly or through a representative or appropriate authority, in any judicial or administrative proceeding affecting him or her, in accordance with the procedural rules of national law.” Considering the scope of Article 12, which contains the relevant provision, and the child's clear statement expressing their desire for custody to be granted to the mother, the decision of the special chamber, which was also adopted by the General Assembly of Law, should have been followed. However, persisting with the previous decision is contrary to procedure and law. Therefore, the decision to resist should be overturned.

In custody decisions, the importance of children's mental well-being and the prioritization of their wishes and best interests have been emphasized.