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Joint Custody
Joint Custodyjoint (joint) custody; In the broadest sense, it means that the parents use the custody with equal authority and by consensus. The essence of joint custody is that the parents make decisions on important issues related to the child together. For example; They need to make a joint decision with the parents on important matters for the child, such as which school the child will attend, which city and country he will reside in, how he will be guided in choosing a profession or in terms of religious belief, which medical treatment will be applied to him when he is sick. There are International Conventions regulating joint custody in case of divorce. Additional Protocol No. 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms entered into force on 1.8.2016 and became a part of our domestic law. According to Article 5 of the Protocol, “Spouses are equal in terms of rights and responsibilities of private law in their relations with each other and with their children, during marriage and in the event of the end of the marriage.” Article 5 of the protocol, which states that the spouses are equal in terms of rights and responsibilities in their relations with their children in the event of the dissolution of the marriage, is a provision that constitutes the basis for the acceptance of the parents to have joint custody in case of divorce.
In the United Nations Convention on the Rights of the Child, to which the Republic of Turkey is a party, it is stated that “the best interest of the child” will be the main consideration in all activities carried out by the courts and concerning children (art. 3 f. 1). It is also stated in the contract that the child has the right to be cared for by his or her parents to the extent possible (art. 7 f. 1). On the other hand, in the Convention, it is stated that the states parties will make every effort to recognize the principle that the parents bear joint responsibility for the upbringing of the child (art. 18 f. 1). From these provisions, it is concluded that joint custody should be allowed in case of divorce, as long as it does not contradict the best interests of the child.
According to the European Convention on Human Rights, to which we are a party, everyone has the right to respect for their family life. The ECHR of national regulations that excludes the possibility of joint custody of parents after divorce on the grounds that both parents and children have this right and that family life between the child and the parents continues after the parents’ divorce. m. It is argued that it would be contrary to 8.
JOINT CUSTOMER IN OUR LAW
There is no regulation regarding joint custody in our law. However, it has caused a lot of controversy.
While discussing whether joint custody is possible in case of divorce in Turkish law, there are two basic regulations that are emphasized. The first of these is TMK. m. 182 f. In the regulation of the personal relationship of the spouse, whose custody is not given to him, with the child, the benefits of the child are taken as the basis. is the verdict. As it is rightly expressed in the doctrine, it follows from the expression “spouse to whom the use of custody is not given” in the provision, not that joint custody is not possible, but that if only custody is given to one party, the other party’s personal relationship with the child will be regulated. The main subject of discussion is the provision, “The custody, (…) in divorce, the child belongs to the party left to him.” TMK where the expression is included. m. 336 f. 3 is the rule. There are different opinions as to whether this provision, which regulates that the custody will belong to the “child to whom the child is left to him” in case of divorce, does not prevent the judge from deciding on joint custody in case of divorce.
There are some discussions in the doctrine. According to one view, article 336 of the Turkish Civil Code, paragraph 3 is a mandatory provision and this provision does not allow joint custody. Another view is TMK. m. 336 f. They are of the opinion that 3 provisions do not prevent the judge from ruling on joint custody of the parents in case of divorce, provided that it is in the best interest of the child. According to this view, it is thought that the provisions of the TMK that prevent joint custody have been implicitly abolished with the entry into force of Protocol No. 11 and Protocol No. 7 to the Convention on the Protection of Different Human Rights and Fundamental Freedoms in 2016.
SITUATION IN JURISDICTION
In its case-laws up to 2017, the Court of Cassation rejected the request for recognition of foreign court decisions regarding joint custody in case of divorce, on the grounds that custody is related to public order and that the regulations of the TMK regarding custody are mandatory. However, with the decision of the Court of Cassation dated 20.2.2017, it has returned from its jurisprudence that joint custody is against Turkish public order, except for the continuation of marriage (ie, in cases of birth or divorce outside of marriage).
In an event where the father of the child born out of wedlock is in question and the application of English law is in question, the Supreme Court of Appeals stated that the joint custody arrangement in English law cannot be said to be “clearly” contrary to the Turkish public order, and the decision of the first instance court to reject the joint custody request due to its inconsistency with the Turkish public order. has broken. In a later decision, the Court of Cassation reversed the decision of the first instance court regarding the refusal of the foreign court decision regarding joint custody in case of divorce to be recognized on the grounds that it was against the Turkish public order, on the grounds that it cannot be said that joint custody after the divorce constitutes a “clear” violation of the Turkish public order. In the aforementioned decision, the Court of Cassation referred to Article 5 of Protocol No. 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms, while determining our domestic legal arrangements regarding joint custody regarding divorce and Anay. m. 90 f. He pointed out that the provisions of international treaties on fundamental rights and freedoms will be applied if, as a final requirement, they contain different regulations in the same subject with the laws. began to rule on joint custody at the joint request of the parents
CONDITIONS FOR MAKING A JOINT CUSTOMER DECISION
• Parties must be willing to joint custody
• The best interests of the child should be considered in the decision of joint custody.
• No conflict between parents
SAMPLE PROTOCOL REGARDING JOINT GUARDIAN
“Spouses mutually accept and undertake to use the custody of ……………….., the joint child of the parties, born on 06.06.2011, in the form of joint custody. As a result of the divorce, the joint child …………….. will reside with his mother and ………………….. will be arranged between the joint child and the father as follows: a) On the first and third Friday evening of each month, from 18:00 to Sunday evening Until 18.00, b) Every Wednesday from 17.00 to 20.00 pm, c) In odd years, between 10.00 on the first day of the Eid al-Fitr (even if it is a public holiday) and 17.00 on the last day, even Between 10:00 am on the first day and 17:00 on the last day of the Eid al-Adha (if it is a public holiday) in years, ) In odd years, between 10:00 a.m. on the first day of the school holiday in the spring break and 17:00 on the last day of the school holiday, between 10:00 in the morning and 17:00 on the last day of the school holiday in the fall in even years, f) Every year on July 16, at 10:00 am to 17:00 on 31 July and from 10:00 on 16 August to 17:00 on 31 August. The parties …………………. accepts and undertakes to pay monthly ………………….. alimony for the joint …………. Affiliate alimony will be increased every year at the rate of PPI published by TUIK. Until the divorce decision is finalized, the child support determined by the court for the joint child will continue.
Stj. Av. Elif Nur Akyol
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