Posts
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.
