Custody Action: The Best-Interest-of-the-Child Principle and Awarding Custody

The best-interest-of-the-child principle is enshrined both in the TMK and in Article 3 of the UN Convention on the Rights of the Child, to which Turkey is a party. In a custody decision, the assessment focuses on which parent can better meet the child's physical, psychological, educational and social development needs.

The child's age, care needs, relationship with each parent and existing living arrangements are assessed together. Being the mother or father alone does not determine custody. Allegations of neglect, violence or inadequate care must be assessed through their concrete effects on the child's safety and development, rather than abstract judgments about a parent's lifestyle.

In Court of Cassation practice, the child's age and degree of maturity are assessed together; a child considered to be of discernment is heard in an appropriate setting. The child's statements are not binding in themselves but provide important input to the judge's discretion. Reports from a pedagogue, psychologist or social worker may be obtained where necessary.

Under TMK m.183, where new circumstances such as the remarriage, relocation or death of a parent so require, the judge takes the necessary measures ex officio or upon the request of either parent. Violence, neglect or any conduct of the custodial parent adversely affecting the child's psychological or physical development is also a ground for modification.

An action for modification of custody is brought before the Family Court and is not subject to any time limit; it may be filed at any time as new circumstances arise.

In family-law matters, the legal assessment is made by taking into account the fault of the parties, the best interest of the children, their economic circumstances, and the lawfulness of the evidence. Message records, witness statements, bank transactions, medical reports and police reports become effective only when submitted in proper form.

Claims for divorce, support, custody, compensation and division of matrimonial property may produce independent outcomes. The petition must therefore clearly set out which claim is based on which facts and which evidence.

In disputes concerning children, the court takes into account the child's physical, emotional, educational and social needs rather than the parties' assertions. Social-investigation reports, school arrangements, health condition and the parents' communication style play an important role in the court's assessment.