Joint Custody

Joint Custody – Lawyer in Izmir

When examining joint custody arrangements, it is necessary to first look at the legal regulations in our domestic law. The relevant legal regulations in our domestic law are as follows:.

When deciding on divorce or separation, the court, after hearing the parents whenever possible and taking into account the opinion of the guardian and the guardianship authority if the child is under guardianship, regulates the rights of the parents and their personal relationship with the child.

In regulating the personal relationship between the spouse who is not granted custody and the child, the child's best interests, particularly in terms of health, education, and morals, shall be paramount. This spouse is obliged to contribute to the child's care and education expenses in proportion to their means.TMK Article 182/1-2). A minor child is under the guardianship of their parents. Guardianship cannot be taken away from the parents unless there is a legal reason. Unless the judge deems it necessary to appoint a guardian, restricted adult children also remain under the guardianship of their parents (Turkish Civil Code, Article 335). As long as the marriage continues, the parents exercise joint guardianship.

If the common life has ended or a separation has occurred, the judge may grant custody to one of the spouses. Custody belongs to the surviving parent in case of the death of one of the parents, and to the parent to whom the child is given in case of divorce” (Turkish Civil Code, Article 336). If the parents are not married, custody belongs to the mother.

If the mother is a minor, incapacitated, deceased, or has had her custody revoked, the judge appoints a guardian or grants custody to the father, in accordance with the child's best interests (Turkish Civil Code, Article 337).

As can be seen, there is no legal provision regarding joint custody in the Turkish legal system. However, the Turkish Civil Code also does not contain any provision stating that custody must be exercised by only one of the parents.

Therefore, the issue of joint custody has found application in Turkish law with the decision of the 2nd Civil Chamber of the Supreme Court of Appeals dated February 20, 2017, numbered 2016/15771 E. and 2017/1737 K. Considering international agreements and current conditions, the Supreme Court of Appeals changed its opinion and ruled that a positive decision on joint custody can be given if the conditions are met.

The Supreme Court decision mentioned above is a ruling that clarified this issue and initiated the process. In summary, this decision states: "...Based on the explanations regarding our domestic law and the concept of public order, when the specific case is evaluated, it is not possible to say that the 'joint custody' arrangement is 'clearly' contrary to Turkish public order or that it violates the fundamental structure and basic interests of Turkish society...".

The decision clarified that joint custody does not explicitly violate public order or the fundamental interests of society. Thus, it was understood that the most fundamental consideration in joint custody is the best interests of the child. Following this 2016 decision, the view that joint custody is not contrary to Turkish public order gained prominence, but no legal changes were made in this regard. Therefore, although the Supreme Court decision opened the way for granting joint custody, there is still no legal regulation on this matter.

What are the conditions for a joint custody decision?

While it should be noted that different conditions may exist depending on the specifics of the case, we can generally list the following conditions:;

• The spouses must agree on joint custody; if they cannot agree on this matter, joint custody will not be possible due to the conflict of interests it creates.

• Joint custody must be in the best interest of the child. In other words, if it is clearly understood that joint custody would lead to situations and complications that would not be in the child's best interest, then joint custody cannot be granted. This principle is based particularly on the Convention on the Rights of the Child, adopted by the United Nations General Assembly on November 20, 1989.

• Domestic violence should not be a reason for divorce between spouses. Indeed, in a family where violence exists, it is not possible to implement joint custody even after a divorce.

• Joint custody is also not possible if one of the parties has an alcohol or drug addiction or leads a dissolute lifestyle.

• Whether joint custody is suitable for the parties should be determined by considering their economic, social, and cultural circumstances, and expert opinions on the suitability of joint custody should definitely be sought.

• A comprehensive protocol should be established to ensure the process is sustainable and that solutions can be found for potential future problems.

Is alimony paid in cases of joint custody?

Reaching an agreement on joint custody does not preclude a decision on alimony payments. The financially stronger party may agree to pay a suitable amount of alimony to the other, or the parties themselves may reach an agreement on alimony between themselves.

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