The end of the marital union begins a period in which life is reshaped not only for the parents but also for the common children. The custody arrangement established by the court together with the divorce judgment is a decision given having regard to the child's circumstances at that time and to the child's best interests. However, the dynamic nature of life may, over time, bring about significant changes in the living conditions of the parents and the child; this may in turn cause the custody arrangement initially determined as most suitable for the child's interests to lose its function over time. Turkish Civil Law, accepting that custody decisions are not static and unchangeable, has regulated the institution of the Action for Change of Custody in order to protect the child's interests. In this article, the legal conditions of the action, its fundamental bases, the proceedings and its consequences are examined in detail within the framework of the Turkish Civil Code (TMK) No. 4721 and the current case law of the Court of Cassation.
The Legal Basis and Underlying Rationale of the Action for Change of Custody
Custody decisions are shaped according to the circumstances at the time they are given and do not constitute a definitive judgment in the substantive sense. This means that, if circumstances change, the custody arrangement can always be reconsidered. The fundamental legal basis of this dynamic structure is Article 183 of the Turkish Civil Code, headed "Durumun değişmesi" "Change of circumstances" (unofficial translation); this article also forms the legal basis of the action for change of custody.
Turkish Civil Code Article 183 | Change of Circumstances:
Ana veya babanın başkasıyla evlenmesi, başka bir yere gitmesi veya ölmesi gibi yeni olguların zorunlu kılması halinde hakim, re'sen veya ana ve babadan birinin istemi üzerine gerekli önlemleri alır.
Unofficial translation
Where new facts, such as the mother or father marrying another person, moving to another place or dying, make it necessary, the judge takes the necessary measures of their own motion or at the request of either parent.
The situations listed in this article, such as "marriage, moving, death", are specified by the legislator as examples and are not exhaustive. What the proceedings must essentially focus on is the emergence of these or similar "new facts" and this new situation making a change of custody "necessary". The party filing the action is under an obligation to prove with concrete evidence that, as a result of the new fact, the existing custody arrangement no longer serves the child's best interests and that the change has become a "necessity" for the child's interests.
What Are the Circumstances Requiring an Action for Change of Custody?
For an action for change of custody to be filed, a fundamental and lasting change must have occurred in the life of the parties or of the child after the divorce judgment. Decisions of the Court of Cassation state that these situations must be made concrete by passing them through the filter of the principle of "the child's best interests".
The Effect of Changes in the Situation of the Parent Holding Custody
- Effect of Remarriage: According to the consistent view of the Court of Cassation, the remarriage of the parent holding custody is not on its own a sufficient reason for a change of custody. For custody to be changed, it must be proved with concrete evidence that this new marriage adversely affects the child's interests (care, psychological state, safety, etc.).
- Effect of Moving to Another City or Country: The parent holding the right of custody has the liberty to choose their place of residence. For this reason, moving to another city or country does not on its own result in a change of custody. However, if this situation seriously hinders, or makes practically impossible, the personal relations that the parent without custody will establish with the child, a change of custody may come into question owing to the risk of the child's bond with the other parent being broken.
- Death or Serious Health Problems: If the parent holding custody dies, the right of custody does not pass automatically to the other, surviving parent; the surviving parent must file an action before the Family Court for custody to be granted to them. Similarly, situations such as the parent holding custody contracting a serious and lasting illness of a nature that prevents them from performing the duty of custody, mental illness, or alcohol or drug addiction also constitute just grounds for a change of custody.
The Effect of a Serious Breach of the Duty of Custody
- Neglect of the Common Child: The parent holding custody showing serious and continuous neglect in meeting the child's basic needs such as nutrition, shelter, health and education is one of the most fundamental grounds for a change of custody. The Court of Cassation is of the view that custody should be removed from a parent who does not personally perform the duty of custody and has in practice abandoned the child to the care of third persons (for example, the grandmother or grandfather).
- Obstruction of Personal Relations: The right of custody does not confer a right to sever the other parent's bond with the child. The parent holding custody systematically and unjustly preventing the father from meeting the child on the personal relations days determined by the court is regarded as an abuse of the right of custody and is accepted in the case law of the Court of Cassation as a very serious reason for a change of custody.
- Is Custody Granted to a Mother Who Has Left the Home? Leaving the common home is not on its own a sufficient reason for losing the right of custody. However, if the act of leaving amounts to a serious neglect of the obligation to care for and supervise the child, that is, if the mother has also in practice abandoned the child and does not look after the child, this situation constitutes a strong reason for granting custody to the father.
The Importance of Changes in the Child's Situation
- The Child's Statement: It is compulsory for a child accepted as having the capacity of discernment (generally aged 8 and over) to be heard in person by the court in this action, which directly concerns the child's custody. The child expressing sincerely and consistently that they do not wish to live with the parent holding custody is an important ground for a change of custody.
- Situation of Siblings: Where there is more than one child, the courts observe the principle of "not separating siblings from each other". However, in an action for change of custody, the situation of one of the siblings may also affect the custody of the other. For example, where the older sibling, whose custody is held by the mother, wishes to go to the father and it is established that this would also be in the interests of the younger sibling, the custody of both children may be changed.
How Is a Change of Custody by Agreement Made?
Parents may reach an agreement between themselves on changing custody after divorce. How the process works:
- Preparation of a Protocol: The parties should prepare a "protocol for a change of custody by agreement" covering matters such as to which party custody will pass, the days of personal relations and maintenance.
- Application to the Court: Together with this protocol, one or both of the parties apply to the Family Court by petition and request a change of custody.
- Approval of the Judge: Since custody relates to public order, the parties' agreement is not sufficient on its own. The judge investigates of their own motion whether this agreement is consistent with the child's best interests, obtains a professional report if necessary and hears the child. If satisfied that the agreement is in the child's interests, the judge approves the protocol and decides to change custody.
The Proceedings in an Action for Change of Custody
An action for change of custody is a judicial process with its own particular rules of procedure that must be conducted with sensitivity.
| Stage of the Proceedings | Explanation | Details |
|---|---|---|
| Filing the Action | The parent who does not hold the right of custody applies to the Family Court by petition. The reasons for the change and the evidence should be stated clearly in the petition. | The court of the place of residence of the defendant parent or of the child has territorial jurisdiction. |
| Collection of Evidence | The court collects the evidence submitted by the parties (witnesses, messages, photographs, etc.) and, in accordance with the principle of investigation of the court's own motion, carries out the other investigations it deems necessary. | At this stage, one of the most important pieces of evidence is the Social Investigation Report (SİR). |
| Social Investigation Report (SİR) | Professionals appointed by the court, such as pedagogues and psychologists, interview the parties and the child and prepare a report on which side the child's best interests lie. | Although the report is not binding on the court, it significantly affects the decision. The parties have the right to object to the report. |
| Hearing the Child | A child at the age of discernment (aged 8 and over) is heard by the court in the presence of a professional, and the child's view on custody is obtained. | Hearing a child at the age of discernment is a legal requirement, and failure to do so is a ground for reversal. |
| Interim Custody | During the action, the court may, upon request or of its own motion, give an "interim custody" decision in order to protect the child's interests. | This decision determines with whom the child will stay until the action is concluded. |
| Decision and Outcome | Assessing all the evidence and reports collected, the court decides, in line with the child's best interests, either to change custody or to maintain the existing situation. | Together with the decision, matters of maintenance and personal relations are also regulated anew. |
The Consequences of an Action for Change of Custody
The court granting custody to the other parent as a result of an Action for Change of Custody also brings with it a series of legal consequences:
- Maintenance Obligation: Whichever party is granted the right of custody becomes entitled to claim child support (iştirak nafakası, the contribution to the child's care and education expenses) from the other party on behalf of the child. Together with the decision to change custody, the court removes the existing maintenance obligation and determines the maintenance debtor and the amount according to the new situation.
- Rearrangement of Personal Relations: The right of the parent who loses custody to establish personal relations with the child continues. The court rearranges the days and hours of personal relations according to the new situation.
- Authority of Legal Representation: The child's legal representative is now the new parent holding custody. Just as the father of a child whose custody is held by the mother cannot carry out the school registration, when custody passes to the father, the mother cannot carry out this transaction alone either.
In this complex and sensitive process, obtaining legal support from an Adana Custody Action Lawyer is of great importance for placing the action on sound foundations and for protecting the child's interests to the fullest extent. A lawyer with experience in family law, by guiding the client at every stage of the process, may help prevent losses of rights.
Legal Notice: This article has been prepared for general information purposes and does not constitute legal advice. Although our articles are checked at regular intervals, the currency of our article cannot be assured in view of case law that changes every day. Each specific case should be assessed according to its own particular circumstances. You are advised to obtain professional legal assistance in order not to suffer a loss of rights.