ENFORCEMENT OF JUDGMENTS RELATING TO CHILDREN

Children need to be able to maintain contact with their separated family members. However, in the ordinary course of life, one or both parties may prevent the other from establishing personal contact with the child. At this point, the long-standing practice of 'forcibly delivering' children through enforcement offices and bailiffs led to morally reprehensible incidents, prompting the legislator to take action. The process of child delivery was removed from the scope of the Enforcement Law and specifically regulated under the Child Protection Law.

If we examine the legislative logic of the Enforcement and Bankruptcy Law (İİK), the delivery of a child is regulated within the scope of enforcement of a court judgment. This means that previously, a court decision (court judgment) was required for the delivery of a child to one party and the establishment of personal contact. According to the old practice under Article 25/a of the İİK, an 'enforcement order' would be issued to the enforcement office as a result of an application for the enforcement of the judgment, demanding the delivery of the child to the relevant party within 7 days. If the party did not comply with this order, the child would be forcibly delivered through an enforcement officer . Similarly, if the party receiving the child refused to return it at the end of the specified period, the child would be forcibly taken from that party as well. However, it was understood that the institution of forced delivery did not guarantee that individuals would act voluntarily, and therefore, a sanction provision for opposition to the child delivery order was established through Article 341 of the İİK. Accordingly, those who refuse to deliver the child or make it difficult to deliver the child are subject to six months of coercive imprisonment upon the complaint of the person in whose favor the judgment was rendered

Regulations concerning the custody of children are no longer governed by the Enforcement and Bankruptcy Law (İİK), but by Article 41/A-İ and Temporary Article 2 of the Child Protection Law (ÇÇK). It should be noted that these new provisions, introduced by Law No. 7343, were enacted on November 24, 2021, and will be implemented nationwide within one year. Therefore, since the new regulation foresees the establishment of many new institutions, the old İİK practices will continue in areas where these institutions have not yet been established, while the provisions of the ÇÇK will apply in provinces or regions where the new institutions have been established. One of the most significant changes made under Article 41 and subsequent regulations is the establishment of new institutions. Individuals holding a court order (judgment) regarding visitation rights with their children can now have the order enforced not by enforcement offices, but by applying to the judicial support and victim services directorates established by the Ministry of Justice under Article 41/A of the ÇÇK. The relevant directorate to be contacted is the one in the CHILD'S PLACE OF RESIDENCE. However, if the party believes that the relevant directorate has acted incorrectly during the child's handover process, according to Article 41/E of the Child Protection Law, 'A complaint may be filed with the family court in the location of the directorate that carried out the action, within one week from the date of learning or notification, against the actions and decisions taken by the directorate regarding the execution of judgments or precautionary measures concerning the handover of the child and the establishment of personal relations with the child.'

The Issue of Opposition to the Judgment Regarding the Custody of the Child

According to Article 41/F of the Child Protection Law; 'Those who act contrary to the delivery order regarding the execution of the court order or precautionary measure decision concerning the delivery of a child, and those who obstruct the execution of the order, shall be punished with disciplinary imprisonment of up to three months, even if the act constitutes a crime, upon complaint made within one month.'

According to Article 41/F-2 of the Child Protection Law; 'Those who act contrary to a delivery order regarding the execution of a court order or precautionary measure concerning the establishment of personal contact with a child, or those who obstruct the execution of the order, shall be punished with disciplinary imprisonment of three to ten days, upon a complaint made within one month.'

It is important to note that paragraph 1 concerns the delivery of the child, while paragraph 2 concerns establishing personal contact with the child. Both situations have different penalty provisions.

Individuals must file their complaints with the family court. These complaintsmust be made within ONE WEEK of learning about or receiving the complaint, to the family court located in the same place as the directorate. An appeal can be filed with the family court against the decision made on the complaint. The appeal period is one week.

Expenses and Fees

According to Article 41/H of the Child Protection Law; 'Procedures related to the execution of court orders or precautionary measures concerning the delivery of children and the establishment of personal relationships with children are exempt from all fees that should be collected pursuant to the Fees Law No. 492 dated 2/7/1964 and other laws. Furthermore, all expenses incurred for the execution of these procedures, excluding attorney fees, shall be covered from the budget of the Ministry of Justice.'

In other words, while previously individuals had to go to the enforcement office and pay fees and charges similar to initiating enforcement proceedings for a debt, for child custody and personal contact, now all transaction costs will be covered by the Ministry of Justice, and no fees will be charged to the parties.