Can a guardian who has custody of their child take the child abroad?

A Guardian with Custody Can Take Their Child Abroad and Request Permission from the Court

When a parent with custody wants to travel abroad with their child, this creates two separate "problem areas" in practice:

According to Turkish law, jurisdiction includes the right to custody, which encompasses the authority to make decisions regarding the child's care, education, and development, and to represent the child. Therefore, as a rule, the parent with custody can travel abroad with the child. Indeed, the Supreme Court has established a precedent stating that taking a child abroad as a natural consequence of exercising custody rights is not subject to the consent of the divorced spouse . (Supreme Court 2nd Civil Chamber, June 17, 2015, E.2015/11374, K.2015/12897)
Practical/Administrative Obstacle: Some countries may require "notarized consent from the other parent" for visa/residence permit applications or by airlines/border authorities. In this case, the custodial parent the intervention of a judge or a request for "determination/permission to leave without consent." A 2024 decision shows that the acceptance of the case was deemed appropriate and the decision upheld (Supreme Court 2nd Civil Chamber, 04.07.2024, E.2024/3491, K.2024/5336).

In this article, we provide a systematic answer to the question, "I have custody of my child and I want to travel abroad with him/her—what should I do?", based on legislation, practice, and the Supreme Court.

1) Basic Legal Framework: Custody, Representation, and the Best Interests of the Child

The primary criterion when determining custody after a divorce is the best interests of the child. This principle aims to protect the child's physical, mental, emotional, and social development. In disputes, courts evaluate the parents' requests within this framework.

Two points stand out in terms of parental custody:

Custody rights: This includes the authority to make decisions regarding a child's daily life and development, to make educational/health arrangements, and to act on behalf of the child.
The other parent's right to personal contact: The parent who does not have custody has the right to establish personal contact with the child. If international travel would effectively prevent this contact, the court may make a stricter assessment.

2) Is "Court Permission" Always Required?

A) Rule: The custodial parent is not required to obtain additional court permission

The Supreme Court has stated that, as a rule, the consent of the other parent is not required for a parent exercising custody to take their child abroad.

B) However: The case may be dismissed if there is no "legal interest"

In practice, custodial parents can file lawsuits to avoid requiring consent from the father/mother. A noteworthy point in the 2015 decision of the 2nd Civil Chamber of the Supreme Court of Appeals is this:

According to Turkish law, consent is not required; however, the request is often based on the justification that "the foreign country is not granting a visa/requests consent.".
Unless the destination country will not grant a visa without consent , the court's ruling in this regard may not be considered appropriate.

Practical conclusion: If a "permission/determination" decision is requested from the court, concrete reasons and documents must be included in the file.

3) Passport and Letter of Consent: Who Signs in Official Documents?

The issue of "consent" in a child's passport application is a frequently misunderstood area.

The General Directorate of Population and Citizenship Affairs (NVİ) passport FAQ section clearly states that in cases of divorce, the consent of the parent to whom custody of a minor child has been granted is sufficient

Furthermore, the National Identity Registry's passport application information states that in cases where the parents are divorced, the consent of the parent with custody is required .

What does it mean?

In Turkey, if you have parental custody, you can usually alone .
Nevertheless, visa processes abroad or foreign authorities may also require "consent of the other parent" (this is more a practice of the destination country/visa authority than a requirement of the Turkish administration).

4) What to do if the other parent does not consent?

A) First, clarify the nature of the dispute

The following distinction determines the fate of the case:

Temporary travel (holiday, short visit, educational trip, visiting relatives): This is generally more readily accepted.
Permanent settlement/relocation (residence permit, long-term employment, transferring a child's education entirely abroad): This can significantly impact the other parent's right to personal contact; the court will conduct a more detailed examination.

B) "Judicial intervention/determination/permission" case in Family Court

In practice, a lawsuit could be structured as follows: " That the consent of the parent with custody rights is not required for the other parent to travel abroad, and that this matter be determined/permitted."

In the 2024 Supreme Court 2nd Civil Chamber decision, it is seen that the mother, who has custody, argued that the country of destination (in this case Romania) requested consent, that the father did not give consent without justification, and that this situation affected the mother's right to custody and freedom of travel; the courts accepted the case based on the child's best interests and development and the specific circumstances, and the decision upheld .

C) If there is a "travel ban"

Sometimes, the parent who does not have custody will try to prevent the child from being taken abroad by:

You can request a precautionary measure (prohibition on the child from leaving the country) in the Family Court
Or, in the custody/relative relationship arrangement file, they may request entries such as "the child should not be taken abroad.".

The Supreme Court's approach to the issue of "territorial/foreign travel restrictions" in personal relationship arrangements is significant: In one decision, it is stated that establishing personal contact with a child "on the condition that the child is not taken abroad" is not correct (Groundings for reversal of the Supreme Court's 2nd Civil Chamber's decision numbered 2019/4491 E., 2019/10161 K.).

If such measures are in place, the file must be reviewed before traveling; if necessary, a request should be made to lift or change the measure.

5) Useful Documents to Include in the File if Court Authorization is Required

Courts concrete plans and the best interests of the child ." In practice, the following documents strengthen the case:

A final copy of the child custody decision.
Travel plan: flight ticket reservation, accommodation, invitation letter
School/activity documents (training camp, competition, trip)
A doctor's report is required if there is a medical reason.
Letter, email, appointment/document list showing the "letter of consent" requested by the visa authority/country
Notarized notice/correspondence indicating that the other parent has not given consent.
A plan for how to maintain the child's personal relationship with the other parent (holiday arrangements, video calls, make-up days)

Particularly from a "legal interest" perspective, as indicated in the 2015 decision, the risk of the case being dismissed increases if there is no document proving that the visa/country authority sought consent

6) What Criteria Does the Court Consider?

The court's focus is not on "parental conflict," but on the best interests of the child.
In practice, the following questions come to the forefront:

Is this trip beneficial for the child's education/health/development ?
Does the trip pose a risk to the child's safety and supervision ?
the other parent's right to personal contact unnecessarily violated, or is it remediable?
Is the trip realistic, or does it raise suspicions of "kidnapping/failure to return the child"?
the custodial parent's request reasonable ? (Duration, country, purpose, return commitment)

In the 2024 ratification decision, the mother's ability to exercise custody rights and the child's best interests were considered together, and the specific characteristics of the case were taken into account.

7) A Brief Summary in Light of Supreme Court Decisions

1) The consent of the custodial parent is not required (principle)

Supreme Court 2nd Civil Chamber, June 17, 2015, Case No. 2015/11374, Decision No. 2015/12897: Taking a child abroad as a natural consequence of exercising custody rights is, as a rule, not subject to the consent of the other spouse.

2) "Legal interest" and the need for concrete evidence (practical warning)

The same decision states that the application should be rejected if no document is provided indicating that the destination country will not grant a visa without consent

3) Acceptance and confirmation of the permit/determination decision in the specific case

Supreme Court 2nd Civil Chamber, 04.07.2024, Case No. E.2024/3491, Decision No. K.2024/5336: Upholding the decision to accept the lawsuit filed by the custodial mother due to the foreign country's request for consent and the father's unjustified refusal to grant it .

4) The "no travel abroad" approach in personal relationship management

The 2nd Civil Chamber of the Supreme Court of Appeals (supplementary grounds for reversal in the decision numbered 2019/4491 E., 2019/10161 K.): In assessments regarding geographical restrictions such as the condition of "not being taken abroad" in establishing personal contact, the best interests of the child and the requirements of personal contact must be considered.

8) Conclusion: The Safest Roadmap

If you have custody, it is generally possible under Turkish law to take the child out of the country.
However, if the visa authority/country/airline requires "consent" and the other parent arbitrarily obstructs the process, filing a lawsuit in Family Court requesting "waiver of consent/permission/determination" may be a practical solution.
If a lawsuit is to be filed, concrete evidence (visa application document list, official letter, rejection letter, etc.) must be included to demonstrate "legal interest"
In case of divorce, the consent of the parent who has custody is sufficient for a passport application.

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