Monday, November 18, 2019
by Jeremy D. Morley
The Civil Code of Turkey (Article 336) expressly provides that, when parents divorce, only one parent may be given custody over their child to the complete exclusion of the other parent, either by agreement or by order of the court (Article 819, Turkey Civil Code). Parental authority includes both legal and physical custody.
The decision as to which parent will receive custody is based on a consideration of the best interests of the child, which may include a consideration of the employment, income and lifestyle circumstances of the respective parents. Usually the non-custodial parent will be awarded visitation.
In an important ruling in 2018, the Turkish Court of Cassation ruled (2017 / 2-3117 DECISION 2018/1278) that the views of a child of adequate maturity should be considered in an application to modify custody, in accordance with the terms of the United Nations Convention on the Rights of the Child and the European Convention on the Exercise of Children's Rights.
The one-parent rule violates, I submit, the fundamental human rights of a child to have two parents in his or her life and of a parent to have his or her child in his or her life. It is also plainly contrary to the best interests of a child to be deprived arbitrarily and automatically of his fundamental right to be parented by two parents.
However, in Matter of Yaman, 167 N.H. 82, 105 A.3d 600 (2014), the Supreme Court of New Hampshire ruled that the Turkish sole custody law was not “the type of “egregious” or “utterly shocking” violation” of human rights that would preclude it from enforcing a Turkish custody order under the UCCJEA, especially because in that case the non-custodial parent had access rights..
Nonetheless In contrast, in recent years courts in Turkey have themselves declared that human rights laws require their courts to permit joint custody, at least in certain circumstances. In particular, since Turkey has adopted Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5 of which provides that “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution,” the 2nd Chamber of the Court of Cassation upheld a joint court order concerning British parents. Whether that ruling had opened the door for joint custody rulings in Turkey remains to be seen.
Friday, November 15, 2019
Friday, November 08, 2019
Jeremy D. Morley
Return of children abducted to or in Lebanon
- Jeremy Morley has testified as an expert witness with respect to the laws and practices of Lebanon in respect of international child abduction to Lebanon, and his testimony has been accepted and relied upon.
- There are extreme difficulties in returning a child to the United States from Lebanon when retained by a Lebanese parent.
- Lebanon is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.
- There are no extradition treaties between Lebanon and the United States.
- Under Lebanese law, Lebanese nationals may prevent their wives and children (even if they are American citizens) from leaving Lebanon.
- Lebanon does not recognize international parental kidnapping as a crime.
- Issues of child custody and divorce in Lebanon are generally decided in religious courts under religious law. Thus, if the father is a Sunni Muslim and the mother is a Christian the custody of their children will normally be decided by a Sunni Muslim court.
- One might petition a civil court to handle a custody case instead of a religious court. The issue would be whether the religious court has jurisdiction. It could take up to two years to have the civil court assume jurisdiction and a minimum of four to five years to have the case decided.
- For Sunni Muslims, the mother has physical custody of her children until they are 12 years old, and then they are to be in the physical custody of their fathers.
- For Shia Muslims the mother's physical custody generally ends for boys at age 2 and for girls at age 7.
- For Druze, the mother's physical custody generally ends for boys at age 12 and for girls at age 14.
- For Christian Orthodox, mothers have custody of their daughters until the age of 15 and for sons until the age of 14.
- For Protestants, mothers have custody of their daughters until the age of 12 and of sons until the age of 13.
- The Catholic Personal Status lawdoes not state a specific age but provides that mothers may nurse their babies until they are 2 years old.
- If a father establishes that the mother is unfit or lacking good moral character, she will lose any right to the child. Muslim law requires a child to be raised in the Muslim faith, and if it were proven that a mother tried to raise the child as a Christian, she could be found unfit.
- American/Lebanese dual nationals who carry Lebanese papers will be treated as Lebanese nationals by security authorities.
- A child who is a dual American and Lebanese citizen would be bound by Lebanese law in the eyes of the Lebanese civil courts.
- The U.S. State Department cannot offer any real assistance even if there were a United States court order directing the return of the child from Lebanon.