To Whom Is Custody of School-Age Children Granted?

The divorce process, while bringing a marriage to an end, also brings with it the beginning of a new and lifelong responsibility for the parents: custody of the common child. The custody decision is undoubtedly the most sensitive and most important legal consequence of this process. Particularly once the child starts school, new and complex dynamics such as education, the social environment and friendships enter the child's life. For this reason, the question To Whom Is Custody of School-Age Children Granted? is a critical matter that requires the courts to carry out a much more detailed and multifaceted assessment. The decision given in this period directly affects not only with whom the child will live but also the child's academic success, social adjustment and future personality. At the same time, this decision relates to public order.

In the Turkish legal system, the sole and absolute principle forming the basis of custody decisions is "the child's best interests". Beyond factors such as gender, economic situation or social status, this principle investigates with which parent the child's physical, mental, moral and social development will be ensured most fully. In this article, the question To Whom Is Custody of School-Age Children Granted? will be examined in detail in the light of current Court of Cassation decisions, taking into account all the determining factors, such as the child's age, education, social environment and own view and the circumstances of the parents.

To Whom Is Custody of School-Age Children Granted? Determining Criteria

The Child's Best Interests in Custody Actions: What It Means for a School-Age Child

The principle of "the child's best interests", the cornerstone of custody law, specifically means the following for a school-age child:

• Continuity of Education: The essential point is that the child is not separated from their current school, teachers and educational routine.
• Preservation of the Social Environment: Maintaining the social setting, circle of friends and neighbourhood relationships to which the child is accustomed is important for the child's psychological health.
• Emotional and Physical Security: The child growing up in a safe family environment where the child will receive love, affection and attention, protected from all forms of neglect and abuse.
• Moral and Social Development: The child living with a parent who can be a good role model and who will support the child's moral and social development.
• Sibling Relationships: Where the child has siblings, the bond with them not being broken and their growing up together being ensured.

The court assesses all these factors as a whole and grants custody to whichever parent it concludes will provide these conditions better.

The Child's View in Custody Actions and the Importance of the Age of Discernment

School age is a period in which the child's ability to express their own feelings and thoughts develops. For this reason, the child's own view on custody becomes one of the most important elements of the proceedings.

• Importance of the Age of Discernment: According to the settled case law of the Court of Cassation, children aged 8 and over are accepted as having reached the "age of discernment", and obtaining their views before a decision is given on their custody is a legal requirement. The court giving a decision without hearing a child who has reached the age of discernment is, on its own, regarded by the Court of Cassation as a ground for reversal.
• Weight of the View: The child's statement begins to gain importance particularly from the question to whom is custody of an 8-year-old child granted onwards, and its effect on decisions increases further after the age of 12. The court is under a duty to establish, through a professional pedagogue or psychologist, with which parent the child wishes to stay, the reasons for this preference and whether it is based on the child's sincere and unconstrained will.
• The Judge's Discretion: The child's view is not binding on the court. The judge assesses whether the child's preference is based on a passing whim or on misdirection, such as the other parent's material promises, and, most importantly, whether this preference serves the child's best interests. If the child's preference involves a situation that will harm the child's development, the judge is authorised to decide contrary to this view.

The Importance of the Parents' Circumstances and Living Conditions in Custody Actions

When giving the custody decision, the court compares the parents with each other and investigates who will provide the environment most appropriate to the child's interests.

• Level of Involvement in Education: One of the most important matters for a school-age child is education. The court assesses which parent is more closely involved in the child's education, helps with the child's lessons, attends parent-teacher association meetings and offers a better vision for the child's academic future.
• Social and Physical Conditions to Be Provided: Factors such as the living environment to be offered to the child (a separate room, a study area), the opportunity to take part in social and cultural activities and access to health services are influential in the decision.
• Economic Situation: One of the parents being wealthier than the other is not, on its own, a sufficient reason to obtain custody. What matters is offering a stable life capable of meeting the child's basic needs. The parent holding custody whose economic situation is weaker establishes this balance by receiving child support from the other parent.

In Answer to the Question To Whom Is Custody of School-Age Children Granted: The Mother

For a child who has reached school age, although the presumption of "need for the mother's care and affection" begins to lose its effect compared with the pre-school period, the tendency for the mother to obtain custody continues. The courts may take into account that, particularly in the first years of school (the 6-10 age range), the child still needs the mother's attention to a greater extent.

The answer to the question when is custody of a child granted to the mother is directly related to the actual care and attention the mother gives the child. If the mother is in the position of the child's primary carer, is closely involved in the child's education, health and social life, and the child also has a preference for staying with the mother, granting custody to the mother is the rule.

In Answer to the Question To Whom Is Custody of School-Age Children Granted: The Father

In Turkish law, the mother and father have equal rights in respect of custody. For this reason, the question when is custody of a child granted to the father also frequently arises. Where the following situations exist, custody of a school-age child may be granted to the father:

• Effect of the Mother Neglecting the Duty of Custody: Situations such as the mother not being involved in the child's education, neglecting health check-ups or frequently leaving the child alone are a reason for granting custody to the father.
• Effect of the Child Personally Preferring the Father: A child who has reached the age of discernment stating, in a sincere and consistent manner that is also supported by professional reports, that they wish to live with their father is an important factor in the decision.
• Effect of the Father Offering Better Conditions: The father offering better opportunities for the child's education, social development and having a stable routine, and proving this with concrete evidence.
• Effect of the Mother's Conduct Harmful to the Child's Development: Situations such as the mother living an unstable or immoral life in the child's presence or obstructing the child's personal relations with the father may require custody to be granted to the father.

When Is Custody of a Child Not Granted to the Mother or the Father?

Custody is as much an obligation as it is a right. Custody is not granted to a parent who cannot fulfil this obligation or who harms the child's development. The answer to the questions when is custody of a child not granted to the mother or when is custody of a child not granted to the father is common to both parents:

• Using physical or psychological violence against the child.
• Neglecting the child and failing to meet the child's basic care and health needs.
• Having a condition that endangers the child's safety, such as alcohol or drug addiction.
• Living a dishonourable life that will adversely affect the child's moral development.
• Unjustly and persistently obstructing the child's personal relations with the other parent.

Is Custody Granted to a Mother Who Has Left the Home?

This question reflects a situation frequently encountered in custody actions. The act of leaving the home is not, on its own, a sufficient reason for losing custody. The court examines the reasons for and the consequences of the act of leaving. If the mother left the home for a justified reason, such as violence, this is not interpreted against her. However, if the mother has also actually abandoned the child, has not taken care of the child and has evaded her responsibilities, this shows that she has seriously neglected the duty of custody and may cause her to lose custody.

Table: The Role and Importance of Age in the Custody of School-Age Children

Given the complexity and sensitivity of these processes, working with an Adana Custody Action Lawyer is a critical step for the case to be conducted in the most appropriate way in line with the child's interests. A lawyer with experience in the field can provide guidance on matters such as gathering the necessary evidence, correctly evaluating the social investigation report (sosyal inceleme raporu) and obtaining the child's view in accordance with procedure. Although there are searches among the public for terms such as the right divorce lawyer in Adana, it should not be forgotten that what matters is working with a legal practitioner experienced in family law who will protect the rights of the parents and the child as fully as possible.