The Element of Alienation in Custody and Personal Relationships

Entrance

Custody and relationship disputes are among the most sensitive areas of family law. This sensitivity is further amplified when a foreign element is involved. Parents having different nationalities, a child being born in one country and living in another, a divorce taking place in a foreign court, or the child being taken out of the country; all of which law applies and which court has jurisdiction crucial.

Law No. 5718 on Private International Law has established a system that , unlike classical rules of connection in custody and personal relationship disputes, prioritizes the protection and best interests of the child . This article examines in detail the applicable law, jurisdiction, the effect of foreign decisions, and the strategy to be followed in practice in custody and personal relationship cases involving foreign elements.

1. Concepts of Custody and Personal Relationship

a) Custody

Custody; of the child:

• Maintenance,

• Education,

• Representative,

• Child custody encompasses all the rights and obligations granted to parents regarding their children's protection . Custody is not merely a right; it is a duty linked to public order .
  

b) Personal Relationship

Personal relationship, on the other hand, is the relationship between the parent who was not granted custody and:

• Interview with the child,

• Building a connection,

• It represents the opportunity to contribute to its development
  

Although these two institutions are separate, they are considered together.

2. How Does the Element of Foreignness Arise in Custody Cases?

The element of foreignness arises in custody and personal relationship cases in the following situations:

• One of the parents being a foreign national,

• The child being a foreign national,

• The child's usual place of residence is abroad,

• Divorce or custody decision to be made in a foreign court,

• The child being taken out of the country or detained.

If these elements are present, the provisions of the Private International Law Act come into effect.

3. Applicable Law: The Principle of the Child's Habitual Residence

a) Fundamental Principle

The fundamental approach regarding the applicable law in custody and personal relationship disputes is:
➡️ The law governing the child's habitual residence.

This approach is part of the Private International Law and Coordination System:

• Protector,

• child-centered
  character.

Habitual home is the place where a child actually lives, receives education, and has social relationships.

b) Determination of the Habitual Residence

In determining the usual place of residence:

• The actual time the child is alive,

• School and education system,

• Health and social environment,

• The bonds they form with their parents
  are evaluated together.

Temporary trips or short-term moves do not, in themselves, constitute a change of habitual residence.

4. Separation of Divorce Law and Child Custody Law

One common mistake in practice is the belief that custody is subject to divorce law.

Whereas:

• Divorce → Article 14 of the Turkish Code of Civil Procedure

• Custody and personal relationship → law regarding the child's habitual residence

Because:

• Divorce may be subject to foreign law

• Custody may be subject to Turkish law
  , or vice versa.

5. Competent Court: When Do Turkish Courts Have Jurisdiction?

a) International Jurisdiction

Turkish courts:

• If the child has a usual residence in Türkiye,

• The court is deemed competent if the child is actually present in Turkey and in need of protection
  

This approach reflects the principle of the best interests of the child in the exercise of authority.

b) Authority to Take Temporary and Protective Measures

If the child is in Türkiye and:

• If there is an urgent need for protection,

• If there is a risk of kidnapping or abduction,
  Turkish courts temporary and protective measures .

This authority is independent of the primary authority.

6. The Impact of Foreign Custody Decisions in Türkiye

a) Obligation to Recognize

A custody decision issued by a foreign court:

• It is not automatically valid in Türkiye.

• Recognition is required for it to have legal effect .

Without recognition:

• A change of custody cannot be requested

• School, population, and administrative procedures cannot be carried out.

b) Public Order Control

When recognizing foreign custody decisions:

• Whether the best interests of the child have been considered,

• Whether the right to defense of one of the parents has been violated,

• Whether the decision has become outdated
  is examined within the scope of public order.

This monitoring more rigorous .

7. Execution of Personal Relationship Decisions

Personal relationship arrangements established by foreign court decisions:

• It can be executed after recognition/enforcement.

• However, the child's current situation is taken into account during the enforcement process.

Past decisions that negatively impacted a child's development may not be applied exactly as they were.

8. Removal and Detention of a Child from the Country

One of the most critical scenarios in custody and relationship disputes is:
➡️ The removal of a child from the country without the consent of the other parent.

In these cases:

• The child's usual residence,

• The illegality of the detention,

• International conventions (e.g., The Hague Convention against Child Abduction)
  are considered together.

MÖHÜK (Turkish Code of Civil Procedure) prioritizes protective and rapid intervention in this field

9. Public Order and the Best Interests of the Child

Public order in custody and relationship cases:

• Not abstract,

• the specific best interests of the child
  .

Because:

• Foreign law or decision,

• It is not applied or recognized if it harms the child's safety, development, or psychology
  

10. The Approach of the Supreme Court

The Supreme Court, in custody cases involving foreign elements:

• The child's usual place of residence must be carefully determined,

• Checking the timeliness of foreign decisions,

• to justify the principle of the best public interest
  .

"Abstract choice of law" justifications are not accepted in this field.

11. Common Mistakes in Practice

1. The misconception that custody is subject to divorce law

2. Surface identification of the usual dwelling

3. The foreign custody decision is automatically considered valid

4. Failure to conduct a public order investigation

5. Ignoring the authority to provide interim measures

Conclusion

Custody and personal relationship disputes the most protective areas in the Private International Law system. In this area, binding rules are based not on the will of the parties, but the child's actual life and best interests .

In custody cases involving foreign parents, success depends not only on asking "which parent is right?", but on correctly identifying which law and which court have jurisdiction . When this identification is done correctly, the protection of the child and the enforceability of the decisions are ensured.