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An action for change of custody, that is, an action brought to take custody away from the parent initially designated as having custody and to grant it to the other parent, is examined in this article. In divorce proceedings, the question of who will have/retain custody of the children of the marriage is important. Just as a custody decision may be given in the divorce action heard by the Family Judge, the question of changing custody may also arise later on. This is because a custody decision given by the Family Judge may subsequently be changed, having regard to the principle of the best interests of the child, if circumstances change. The aim is to protect the child and determine what is best for them not only at the time the decision is given but also at times when circumstances and situations change.
In this article, we explain the conditions required in actions for the modification of custody and the course of the proceedings.
Custody is a concept that refers to the rights and obligations of parents over minor children in matters such as care, education, health and protection.
The Turkish Civil Code’s Article 335 defines it as follows:
“A child who is not of full age is under the custody of his or her mother and father.”
Turkish Civil Code, Art. 335
While the parents’ marriage continues, custody is exercised jointly; where the parties separate or divorce, custody may be granted to one of the spouses.
Modification of custody means that custody is taken from the parent to whom it was originally granted and given to the other parent.
The Turkish Civil Code’s Article 183, entitled “Change in circumstances”, provides:
“Where new facts such as the mother or father marrying another person, moving to another place or dying so require, the judge shall take the necessary measures on the judge’s own initiative or upon the request of either the mother or the father. ”
Turkish Civil Code, Art. 183
Within the framework of this provision and the principle of the best interests of the child, the main grounds for modification of custody are as follows:
It should be borne in mind that the most fundamental principle in an action for modification of custody is the “Principle of the Best Interests of the Child”. In these actions, one of the most important grounds for modifying custody is harm to the best interests of the child. If the child’s care, education, development and other needs are not adequately provided for by the custodial parent, modification of custody may arise. It should be emphasised that the word used here is not “cannot be provided” but “are not provided”. This is because what must be present here is, in a sense, a situation in which the child’s basic needs are not met as a result of neglect. Otherwise, if what is necessary is being done to meet the child’s needs, modification of custody will not arise. In this respect, financial difficulties often emerge as one of the most fundamental questions.
“Cannot be provided” · inadequacy
If what is necessary is being done, modification of custody does not arise.
“Are not provided” · neglect
What is required is that the child’s basic needs are not met as a result of neglect.
The Family Court judge does not leave custody to the parent with better financial means and a higher standard of living merely on that basis. On the contrary, the Family Court judge carries out the necessary inquiries as to the environment in which the child will grow up more safely and peacefully and which parent will better provide for the child’s care and maintenance, and, after deciding in accordance with the best interests of the child that one parent shall have custody, where necessary, by making the other parent liable for maintenance , creates the conditions required for the child to grow up safely in the most suitable environment.
Dikkat
Therefore, in this context, modification of custody essentially requires not that the child’s care and needs cannot be met (inadequacy), but that they are not met as a result of neglect.
Adjustment of the amount of maintenance to subsequently changed circumstances action for increase of alimony in our article.
Modification of custody may arise where the custodial parent remarries. However, it should be noted that remarriage in itself is not a direct ground for modifying custody. Modification of custody may arise where the new marriage adversely affects the child’s psychological development (for example, where the stepmother or stepfather treats the child badly).
Where the parent moves to another place, the child will also relocate with the custodial parent, so there may be a possibility that such relocation adversely affects the child’s development. Since the aim is that the child’s safe environment is not disrupted, the parent’s moving to another place has also been regarded as one of the grounds for modification of custody.
Relocation alone is not sufficient
Here, too, it is worth reiterating that a mere change of residence will not in itself be sufficient for a direct modification of custody. The relocation must adversely affect the child’s psychological development, education and social life.
For example, modification of custody may arise in situations such as moving to a city with a worse standard of living than the child currently enjoys, taking the child to a country whose language the child does not know at all, or settling in a district with no school so that the child’s education is interrupted.
Where the parent to whom custody was granted by the divorce judgment dies, the court makes the most appropriate decision for the child having regard to the child’s best interests. In this case, custody does not automatically pass to the other parent. Matters such as whether the other parent is able to provide for the child’s care and maintenance will be taken into account by the court.
Since the aim in actions for modification of custody is to conclude the proceedings quickly and effectively, these actions are subject to the simple procedure. For this reason, the exchange of pleadings and the hearings are concluded in a shorter time than in other proceedings, and the case progresses quickly.
Judicial recess
Likewise, and precisely for this reason, it is one of the matters that must be heard during the judicial recess and is not subject to the judicial recess.
In an action for modification of custody, the Family Judge may hear the child if the child has reached the age of discernment. An expert is present at the hearing at which the child is heard. The expert should observe the child before the hearing and assess the child’s state of anxiety. Where necessary, the expert may make the requests required for the parties (the parents) to be removed from the courtroom so that the child does not feel under pressure and can be heard in a comfortable environment. Unless there are circumstances to the contrary, the Family Judge may find this request appropriate and decide that the parties (the parents) be taken out of the courtroom and the child be heard in the courtroom together with the expert.
Furthermore, the Family Judge may order a Social Investigation Report to be prepared so that each parent’s environment with the child can be observed and detailed inquiries made as to the environment in which the child can live better and more comfortably.
The court with subject-matter jurisdiction in an action for modification of custody is the Family Court. In places where there is no Family Court, the Civil Court of First Instance hears these proceedings in its capacity as a Family Court.
An action for modification of custody is legally regarded as a matter of non-contentious jurisdiction. For non-contentious matters, the court of the place where the applicant or one of the interested parties resides has venue. Accordingly, an action for modification of custody may be brought at the defendant’s domicile or at the place where the claimant resides.
Competent court
Family Court; where there is none, the Civil Court of First Instance acting as a Family Court.
Yetkili mahkeme
The court of the defendant’s domicile or of the place where the claimant resides.
Related page: Divorce Lawyer in Ankara — uncontested and contested divorce, custody, maintenance and division of property
Related page: Custody Lawyer in Ankara — custody actions, change of custody and personal relations
Related legislation: Turkish Civil Code No. 4721 (mevzuat.gov.tr)
Change of custody means taking custody away from the parent initially designated and granting it to the other parent. A custody decision given by the Family Judge may subsequently be changed, having regard to the principle of the best interests of the child, if circumstances change.
Article 183 of the Turkish Civil Code lists new facts such as the mother or father marrying someone else, moving elsewhere or dying. In addition to these, one of the most important grounds is harm to the best interests of the child; if the parent with custody does not adequately provide for the child’s care, education, development and other needs, a change of custody may arise.
The Family Court Judge does not award custody to a parent merely because that parent has greater financial means and a higher standard of living. The judge investigates in which environment the child will grow up more safely and peacefully and which parent will better provide for the child’s care and maintenance; where necessary, the other parent becomes liable to pay maintenance.
Remarriage in itself is not directly a ground for changing custody. Where the new marriage adversely affects the child’s psychological development (for example, where the stepmother or stepfather mistreats the child, etc.), a change of custody may come into question.
Where the parent awarded custody by the divorce judgment dies, the court decides in the most appropriate manner for the child, having regard to the best interests of the child. In this case, custody does not automatically pass to the other parent.
The Family Judge may hear the child if the child has reached the age of discernment. An expert is present at the hearing at which the child is heard; where necessary, the expert may request that the mother and father be removed from the courtroom. The judge may also order the preparation of a Social Investigation Report.
Yes. Actions for change of custody are subject to the simple procedure and are among the matters that must be heard during the judicial recess; they are not subject to the judicial recess.
The competent court is the Family Court; where there is no Family Court, the Civil Court of First Instance hears the case in its capacity as a Family Court. An action for change of custody may be brought at the defendant’s place of domicile or at the place where the claimant resides.
Consultation request
As UTU Hukuk Danışmanlık, we act as counsel for parties in actions for modification of custody and provide professional advisory and legal services to ensure that the process is conducted in accordance with the principle of the best interests of the child.
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