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CASE OF CHANGE OF CUSTOM
According to Article 336 of the Turkish Civil Code, as long as the marriage continues, the parents use custody together. If the joint life has been terminated or separation has occurred, the judge may give custody to one of the spouses. In the event of the death of one of the parents, custody belongs to the survivor, and in divorce, to the party to whom the child is left.
Since custody is related to public order and the best interests of the child should be taken into account in this regard, the case of changing custody can always be filed in case the conditions change. According to the Supreme Court, in the custody arrangement; In case of conflict between the child and the interests of the mother and father, it is necessary to give priority to the interests of the child. If the child is in the best interest; Social, economic and cultural conditions are provided for the child to develop in the best way physically, intellectually and morally and for such a development to be realized. While determining the best interests of the child in these matters; If the child had become an adult, whatever decision he could have made for his own benefit in an event that concerns him, the person in the authority making the decision for the child should also decide in the same direction; that is, the hypothetical thought of the child will be taken as a basis. Unless the conditions for changing custody are met, the custody of the mother or father cannot be interfered with.
Reasons for Changing Custody
The reasons for changing custody are listed as an example in article 183 of the Turkish Civil Code. The reasons for changing custody are not limited in number, and it can be decided to change custody whenever the child’s interests necessitate.
- Change of situation Article 183- In the event that new facts such as the marriage of the mother or father to someone else, going to another place or death necessitate it, the judge takes the necessary measures, ex officio or upon the request of one of the parents.
The fact that the mother or father is married to someone else is not a sufficient reason for changing custody. If the interest of the child is adversely affected due to the marriage of the mother or father, the custody can be changed.
The fact that the parent who is given custody is going to another place is not a sufficient reason for changing custody. Custody can be changed if it is not appropriate for the health or education of the child to go to another place of the spouse who has the right of custody, or if the party with the right of custody arbitrarily removes the child from the other spouse and relatives.
In the event that the parent who assumes the custody dies, the right side does not automatically gain custody. It is possible for the surviving party to gain custody, again with the decision of the judge. The judge should consider the best interests of the child while making this decision.
The fact that the parent who has the right of custody does not allow the joint child to meet with the mother or father who does not have the right of custody in line with the personal relationship established, was also considered as an abuse of the right of custody by the Supreme Court and it was decided to change the custody due to the negative impact on the development of the child.
According to the Court of Cassation, children who are in cognitive age should be informed about custody, their opinions should be sought, and the child’s opinion should be given importance. However, if the judge considers that the child’s opinion is contrary to the child’s interests, he may also decide against the child’s opinion.
Affiliate Alimony in Case of Change of Custody
According to the 3rd paragraph of Article 182 of the Turkish Civil Code, “In the regulation of the personal relationship of the spouse, who is not given custody, to the child, the benefits of the child, especially in terms of health, education and morality, are taken as a basis. This spouse has to participate in the child’s care and education expenses in proportion to his power.” In this direction, with the change of custody, participation alimony may also be requested. According to the decision of the Supreme Court of Appeals General Assembly, numbered 2017/1899 E. , 2018/1052 K. and dated 09.05.2018, “On the other hand, it is necessary to have the right of custody in order to request child support. Since the decision to change the custody given by the court will only become valid after the decision is finalized, the start date of the child support must also be the finalization date of the decision to change the custody.”
Proceedings in Change of Custody Cases
According to the 13th clause of the 2nd paragraph of the 382nd article of the Code of Civil Procedure, the cases of changing the custody are among the uncontested jurisdictions. Simple trial procedure is applied in non-contentious judicial affairs.
Since the case of changing custody is from public order, the principle of ex officio investigation is valid and the parties can present evidence at every stage of the proceedings. Another consequence of the custody being a part of public order is that the defendant’s declaration of acceptance does not lead to a result on its own.
Competent and Competent Court in Change of Custody Cases
The court in charge of changing custody is the Family Courts. Where there are no Family Courts, the case will be heard in the Civil Courts of First Instance.
The competent court in uncontested judicial matters is regulated in Article 384 of the Code of Civil Procedure. “Unless there is a provision to the contrary in the law, the court of the place where the person making the request or one of the interested parties resides is authorized.” Since there is no special jurisdiction rule stipulated in the law for the change of custody case, the case can be filed in the court of the place where the claimant, that is, the plaintiff or the defendant, resides.
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