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 2201/2003 of 27 November 2003 is valid in Turkey. Turkey is a member of the Hague Convention on Child Abduction. 

We will explain what that means for your options.

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 authority: Turkey

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Authority

If a child is born of a marriage, both parents automatically have joint custody of the child durig the marriage. Otherwise, only the mother gets automatic custody. The father can be registered on the birth certificate, but the mother will still 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 procedure, custody can be granted temporarily to one of the parents.

After divorce the custody is often given to the mother, especially when the children are of young age. 

It is possible to  have joint custody after the divorce and this is becoming more common (based on the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms). But in case of a contentious divorce, the custody will be rewarded to one parent. The non-custodial parent must have compulsary participation in the life of the child and bare responsiblity for the care and education expenses. 

When a child from has been abducted from Turkey to another country where a return application can be filed, based on 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 does not need permission from the custodial parent as long as the child returns to the custodial parent in time, according to the visitation schedule.

But if the custodial parent wants to prevent the child from traveling abroad, he or she can ask the court for an international travel ban for the child.

The custodial parent also 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 is a foreign citizen, ordering a travel ban on the child is considered contrary to the constitutional right of freedom fo 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 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.  

 

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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). 

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 decide on the relocation.

If after the divorce the sole custody was given to the father, while the mother is the main care taker, the mother can ask for a shift of custody if she wishes to relocate. 

Criteria

The judge can take into account:

  • wether 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. If either of the parents object to the report, and ask for an additional report.  

Generaly speaking the child will be seen as mature enough when he or she is 12 years old or older. Usually the child will be heard in court to ask question and 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 other parent wants to prevent the move, he 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. If the non-custodial parent starts with asking for an emergency interim order, the case about relocation must be brought to court within 2 weeks. Otherwise the interim order is no longer valid afther the 2 weeks period.

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

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Hague Convention

Turkey is a party to the Hague Convention on 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. They will contact the alleged abducting party to seek a voluntary return. The Central Authority will forward your request to the public prosecutor, who will ask the alleged abducting parent for a statement. Then it is send back to the Central Authority, who will aks the left-behind parent for a statement and then the Central Authority will sent the case to the court. The left behind parent can also start a court procedure without contacting the Central Authority first.

Court procedure

In Turkey child abduction cases are heard by the regular Family Courts. 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. The abduction procedure can take months to years. It is possible that a travel ban will be valid during the procedure, 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 in court during one of the hearings. The child can have a child interview with the court or the court can ask for a report by 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. The left-behind parent can ask to be heard as well or present information about the home situation in the country of habitual residence. Appointing a guardian ad litem is possible if there is no one to exercise the custody rights. 

Mediation

Mediation is possible. 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 the Turkey, but who does need a lawyer in Turkey, may be eligible for subsidized legal assistance, depending on his/her income and assets. The same goes for the alleged abducting parent who lives in Turkey.

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For more details: check the country profile of Turkey on the website of HCCH.

Criminal law : Turkey

Criminal law

If the non-custodial parent relocates the child (younger then 16 years old) without the permission of the custodial parent, this is a criminal act of abduction (article 234 of the Criminal Code). 

If the parents are still married, relocating the child out of Turkey is not a criminal act. 

 

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