Abuse of the right of custody is, in short, when the parent holding the right of custody prevents the establishment of a personal relationship between the other parent and the joint child, does not pay proper attention to the joint child, uses violence, neglects, mistreats the joint child by the person he later marries, etc. and does not fulfill his obligations regarding custody. can be defined as . This situation is of course against the common child and is against the principle of the best interest of the child.
In cases of separation or divorce, the primary purpose of deciding on custody is to ensure the best interests of the child. Custody is related to public order, and in this case, the personal demands or wishes of the mother and father take precedence over the interests of the child. If the parent to whom custody is given neglects the obligations regarding custody, it may be possible to change or remove custody.
It is possible to change decisions regarding custody. It is not binding for the parties to even write provisions such as “the parties cannot file a custody case in the future” in the consensual divorce protocol. For this reason, if the circumstances change, the spouse who does not have custody of the child can file a lawsuit against the other spouse to change custody.
The reasons for filing a lawsuit for change of custody can be expressed as follows;
1) Preventing the parent with custody rights from meeting the child with the other parent
2) Remarriage. (Although it is a reason to change custody, it is not a reason to change custody alone.)
3) The right of custody is taken away from the parent who abandons his child and neglects his care.
4) In case of death, the judge takes the necessary measures ex officio or upon the request of the other surviving parent.
It is also possible to revoke the decision regarding custody. The greatest measure to protect the child according to custody law is the removal of custody. In cases of removal of custody, it is deemed necessary for the child in question to be represented by a representative trustee. Decisions regarding the removal of custody cover all existing and future children. If the reason requiring the removal of custody disappears, the right of custody is given back ex officio or upon request.
The reasons for filing a lawsuit for change of custody can be expressed as follows;
1) Inexperience of the mother or father
2) Mother or father’s illness
3) The mother or father is located elsewhere
4) Failure of the mother or father to fulfill their custody duties properly
5) The mother or father does not pay enough attention to the child
6) The mother or father grossly neglects their obligations towards the child.
The most common example of abuse of custody in daily life is when the party holding the right of custody prevents the personal relationship between the joint child and the other parent. Here the issue of child surrender will come to the fore. The “Regulation on the Execution of Judgments and Injunctions Regarding Child Surrender and Establishing Personal Relationship with the Child” prepared by the Ministry of Justice came into force after being published in the Official Gazette on August 4, 2022. With this new regulation, child surrender is no longer provided through enforcement, but through the Legal Support and Victim Services Directorate in courthouses. The new practice aims to ensure that the child is minimally affected during the interviews, taking into consideration the best interests of the child. It is not mandatory for parents to establish a personal relationship through the ADM unit. However, holding meetings through the unit is important in terms of possible situations that may arise in the future. In the rest of the article, information regarding the application will be listed. Namely;
The party who does not have the right to custody must contact the ADM unit before the meeting with the joint child on the days when it is decided to establish a personal relationship; Must apply by filling out the form prepared by the unit. This application can be made by the individual or through a proxy. The unit receiving the application notifies the parents of the appropriate child meeting center on the day and time that personal contact will be established. Child meeting centers are centers located in or close to parks, gardens, and places where social, sports and cultural activities are carried out, allowing children to spend quality time with their parents. The ADM unit shall notify the holder of the right of custody in a written report that he is obliged to bring the child to the designated place at the end of the period specified in the judgment or injunction decision, and that if he does not bring the child or brings the child late, except for reasonable reasons not caused by him, he will be punished with disciplinary imprisonment and a criminal complaint will be filed against him.
The parent who has the right to custody is obliged to bring the joint child to the meeting center on the day and time when personal relationship will be established. Otherwise, there will be abuse of custody, which will cause the unit to fail.
A report will be recorded and a criminal complaint will be filed by the unit against the holder of custody rights. As stated above, it is not mandatory for the delivery process to be carried out through the unit; the parent who does not have the right to custody can also file a criminal complaint in person if the establishment of personal relationship is prevented.
It may also be possible for the parent who has established a personal relationship not to hand over the child to the person who has the right of custody after establishing a personal relationship. In this case, if the process regarding the delivery of the child has been followed by ADM, the procedure described above is applied exactly and a criminal complaint is filed against the person. If ADM is not involved in the process, the custody holder may personally file a criminal complaint.
Following a criminal complaint, a lawsuit for changing custody may be filed against the person who abuses custody. The competent court in this case is the Family Courts. There is no absolute authority rule in the case of changing custody. For this reason, the Family Court, where the plaintiff or one of the other parties resides, will be the competent court.