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Custody and Court Decisions
According to Article 336 of the TMK, the right of custody belongs to the spouse who survived the death of the mother or father. This transition happens spontaneously, there is no need for a court decision. The rules of absence are also applied here by analogy. 1st paragraph of Article 404 of the Turkish Civil Code “Every minor who is not under guardianship is placed under guardianship.” governs its ruling. In the case of the death of the ex-spouse, who received the right of custody in the divorce case, the custody of the children does not automatically pass to the surviving spouse. As a matter of fact, due to divorce, there is no longer a marriage union. In this case, that is, in the event of the death of the ex-spouse, a guardian must be appointed for the children. In this case, the custody of the child is void. The action to be taken is to appoint a guardian to the child. If the surviving spouse wants custody of their children, then they should open a separate custody case and express this request.
Elements Based on Decision Making
The judges, who have been given discretionary power regarding the custody of the child, consider the interests of the child as the main element when deciding on whom the custody of the child will be given. While evaluating the child’s interests by the judges, evaluations are made by considering factors such as which parent will provide a better future for the child, whom the child will prefer, or who will better meet the child’s needs. Another factor to be taken into consideration when deciding who will be given custody by the judge is the age of the child. Because, taking a child who is still in need of maternal care from the mother and giving it to the father may cause great harm to the child in terms of the child’s health and personal development. Therefore, the general opinion in the society about who will be given the custody of the young child is that the child needs more maternal affection during this period.
Stj. Av. Elif Nur Akyol
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