Turkey
How can you prepare child relocation from or within Turkey? What if your child has been relocated without your consent?
Turkey is part of Europe. The judgments of the European Court of Justice apply. The Council Regulation (EC) No 2019/1111 of 29 June 2019 (Brussels II ter) is valid in Italy. Turkey is a state party to the Hague Convention on Child Abduction.
We will explain what your options are.
Country Reporter:
Mert Yalcin
Mert is the only fellow from Turkey to the International Family Lawyers Academy (IAFL).
He is advising a number of foreign and turkish clients on various civil cases including child abduction cases.
Mert has volunteered to keep this page about Turkey up to date.
Lawyers and mediators in Turkey
We provide a list of lawyers and mediators in Turkey who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental responsibility: Turkey
If a child is born of a marriage, both parents automatically have joint custody of the child during the marriage. Otherwise, if the child is born our of wedlock, only the mother gets automatic custody. The father can be registered on the birth certificate, however, if they are not married at the time of the birth, still the mother will have sole custody (article 337 of the Civil Code).
An unmarried father can obtain custody if the court decides to change the custody from the mother to the father.
During the divorce procedures, as a part of these proceedings, the custody of the child can be granted temporarily to one of the parents.
There is no seperation between parents in terms of to whom the custody should be granted to and they both are equally entitled to be granted with the custody of the common child at the end of the divorce proceedings. However, if the child is too young or needs special care and affection, if the mother does not have any conditions preventing her from providing the necessary care to the child, it is likely that the mother will be the one to whom the custody of the child is granted.
The non-custodial parent, either during the proceedings or at the end of the proceedings, must have compulsary participation in the life of the child and bare responsibility for the care and expenses of the child, including their education.
There are no legal regulations on joint custody under the Turkish law. However, there is a recent Supreme Court case law enabling this in practice and this is becoming more common (based on the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms).
When a child has been abducted from Turkey to another country where a return application can be filed, under The Hague convention, it is debetable wether a temporary sole custody order for the duration of the divorce proceedings means that the other parent cannot evoke the Convention.
Traveling with children: Turkey
If a non-custodial parent wants to travel abroad with the child for a vacation, he or she needs the permission from the custodial parent and these permissions are granted via documents to be issued by the Public Notaries in Turkey.
Alternatively, if the custodial parent wants to prevent the child from traveling abroad with the non-custodial parent, he or she can ask the court for an international travel ban for the child.
Meanwhile, the custodial parent does not need the permission from the other parent to travel abroad with the child or to obtain a passport for the child.
If the custodial parent who, wants to relocate to another country, is a foreign citizen, ordering a travel ban on the child is considered contrary to the constitutional right of freedom to movement and impede the custody duty of the foreign custodial parent (General Assembly of Civil Chambers, March 20th 2013). The non-custodial parent cannot ask for a travel ban, solely based on the fact that the custodial parent is a foreign citizen and may not return to Turkey after the intended holiday. The non-custodial parent can stil ask the court to prevent relocation with an (emergency) order, or to shift custody if he or she fears that the child may not return after the vacation.
Child relocation: Turkey
Substitute permission
If a custodial parent wants to move with the children in a way that will effect the visitation rights of the other parent, he or she should first agree with the other parent about a new visitation schedule. If it is not possible to reach an agreement, the custodial parent can go to court to ask for a new decision on visitation, based on the change of circumstances (the (planned) relocation).
However, as advised above, the custodial parent is free to locate to another country or travel abroad with the child and does not need the permission of the non-custodial parent. As such, they are not legally required to re-regulate the personal visitation between the common child and the non-custodial parent. Therefore, it is for the non-custodial parent to make an application to the court to inform the court about the changing conditions and ask to be granted with the child’s custody or re-regulate the personal visitation between them and the common child under current circumstances.
If the parents have joint custody, the parent who wants to relocate, will need the consent of the other parent. If the other custodial parent does not consent, the court can evaluate and decide on the relocation.
If the sole custody was granted to the father, after the divorce proceedings, while the mother is the main care taker and wishes to relocate with the child, the mother can ask for a shift of custody from the court before doing so.
Criteria
The judge can take into account:
- whether the relocation is an abuse of the custody rights
- the plans that each of the parents has presented in case they would get sole custody
- protection of custody rights of custodial parents
- protection of right of movement of the child
- personal relastionship of the child and the non-custodial parent
- past behaviour of the parents
- pychological and social workers’ assessments
- the child’s feelings and wishes, in case the child has a certain level of maturity
- the influence of parents on the child’s expressed opinion
- the child’s best interests (over the parent’s interests)
Court appointed psychologists can asses the child’s wishes or asses the child’s home environment and support mechanism in order to either change the custodial parent or to regulate the personal visitation between the child and the non-custodial parent. If either of the parents object to the report, they are entitled to ask for an additional report to be obtained.
There is no legal regulation determining when a child can be deemed as mature enough to give their own views regarding the custody. However, generaly speaking, the child will be seen as mature enough when he or she is 8 years old or older, as there is a recent Supreme Court precedent accepting an 8 year-old mature enough to express their own thougts and feelings on the custody and the court making its decision accordingly. Usually, if the child is mature enough, he or she will be heard before the court and there will be some questions to be asked to him or her to ascertain the maturity and the child’s wishes will be given high significance. In exceptional cases the opinion of children who are only 4 years old have been accepted.
Preventing relocation
If the non-custodial parent wants to prevent the move of the child, they can ask the court to impose a relocation ban. A parent who does not have custody can still ask for a relocation ban. He or she can also ask the court for an emergency interim order (temporary travel ban, article 391 of the Civil Code) to prevent relocation during the course of the procedure.
A decision to ban the relocation is often combined with the decision to give custodial rights to the other parent. To prevent the relocation the other parent can ask the court for a decision on the relocation.
Child abduction: Turkey
Hague Convention
Turkey is a state party to the Hague Convention on the Civil Aspects of International Child Abduction. The implementing legislation consists of:
– The Law on the Legal Aspects and Scope of International Child Abduction (No 5717), and
– The Circular No 65 of March first of 2008, on the implementation of the 1980 Child Abduction Convention.
Government
The Central Authority is a first point of contact if you want your children to return to their habitual residence (where they were living before being abducted to Turkey). Turkish Central Authority is the Ministry of Justice. The Central Authority will contact the alleged abducting party to seek a voluntary return and Turkish Central Authority undertakes this via their local Chief Public Prosecutor’s Offices. Then, when the response of the obducting parent is received, it is send back to the Central Authority, who will aks the left-behind parent for a counter statement and then the Central Authority will transfer the case to the court for civil proceedings to initiate.
Court procedure
In Turkey child abduction cases are heard by the regular Family Courts. If there is no family courts in a region/area, then the Civil Courts of First Instance can have the authority with “Family Court” title. A judge of the court in Turkey is appointed who can have judicial communications with judges from other countries if so desired in any case.
There can be several hearings during these proceedings. Even though the Convention foresees such cases to be finalised within 6 weeks, these proceedings can take months to years. It is possible that a travel ban will be in place during the procedure, as it is one of the necessary measures to prevent another abduction of the child, or that the left behind parent temporarily relocates to Turkey and asks for a temporary custody order in order to be able to live with the child in Turkey.
Child participation
Children can be heard before the court during one of the hearings. The child can have be interviewed by the judge directly or the court can ask for a report from an independent expert. The court can request a psychological assesment of the child and an assesment of the child’s home in Turkey. The child and the (alleged abducting) parent in Turkey will be heard, subject to the child’s maturity level. The left-behind parent can ask to be heard as well or present information about the home situation in the country of habitual residence.
Mediation
Mediation is possible for international child abduction cases as Central Authority firstly aims for a friendly solution/ settlement of the case. However any agreement about relocation of the child will have to be confirmed by the court, as this is a matter of public policy.
Execution
When a parent appeals against the return order, this order is automatically suspended pending the appeal.
You can ask the court to decide that the abducting parent must pay for the costs of the procedure.
Prevention
If you think your child is in Turkey, but you do not know exactly where, the Central Authority can help you locate your child.
If you fear that your child will be abducted from Turkey to another country, or otherwise disappear from view, various measures can be taken:
- child’s passports to be deposited with authorities
- alleged abductor’s passport to be deposited with authorities
- obtain orders to prevent the removal of the child
- issuing border and/ or port alerts
- requiring the alleged abductor to report periodically to authorities
- temporary placement of child in institutional care
- temporarily banning the child traveling abroad
- temporarily banning any procedures to obtain or renew the child’s passport, school or registration documents
- determine that the authorities must repeatedly check on the child’s presence at the disgnated adress
Legal aid
A parent who does not live in Turkey, but who does need a lawyer in Turkey, may be eligible for subsidized legal assistance, depending on his/her financial situation, income and assets. The same goes for the alleged abducting parent who lives in Turkey.
For more details: check the country profile of Turkey on the website of HCCH.
Criminal law : Turkey
Criminal law
If the non-custodial parent or any third party abducts the child and relocates with the child (younger than 16 years old) without the permission of the custodial parent, this is a criminal act of abduction in Turkey (article 234 of the Criminal Code). If this act is performed by violence and force or the child is younger then 12, the penalty is increased as much as the main penalty.
If the parents are still married, relocating with the child in or out of Turkey is not a criminal act.
Relevant websites : Turkey
Central Authority
www.uhdigm.adalet.gov : Ministry of Justice General Directorate of International Law and Foreign Relations.
Implementing law
www.mevzuat.gov : Code on the Legal Aspects and Scope of International Child Abduction
Criminal Code
www.mevzuat.gov : Turkish Criminal Code
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