What Is Joint Custody? What Are the Conditions for Joint Custody?
The divorce process is a very difficult and sensitive period not only for the spouses but also for their common children. One of the most important legal consequences of this process is undoubtedly the regulation of the child's custody by the court. While, traditionally and commonly, custody is granted to one of the parents after divorce, the modern understanding of family law has developed new approaches by placing the child's best interests at the centre. One of the most important of these approaches is the institution of joint custody, which finds expression in the question What Is Joint Custody?. Joint custody is a modern legal arrangement that enables the mother and father, even if they are divorced, to continue to take important decisions concerning their children's future together and to share responsibilities equally.
In this article, the question What Is Joint Custody?, which is finding increasing application in the Turkish legal system, will be answered in full detail. Matters such as the legal bases of joint custody, the conditions under which courts give this decision, how the arrangement for maintenance in joint custody is made, the advantages of this type of custody and the disadvantages of joint custody will be addressed comprehensively in the light of current legislation and decisions of the Court of Cassation. In addition, practical questions such as whether the custody arrangement can be changed later and How Is a Change of Custody by Agreement Made? will also be clarified.
What Is Joint Custody?
The most basic answer to the question What Is Joint Custody? is that, in the event of divorce or separation, the rights and responsibilities concerning the care, education and health of the minor child, and all other important matters relating to the child, continue to be exercised jointly and equally by both parents. It is a known legal rule that, while the marital union continues, custody is exercised jointly by the mother and father. Joint custody, on the other hand, refers to the continuation of this joint exercise after the marital union has ended as well.
The Turkish Civil Code (TMK) did not contain a provision expressly regulating joint custody for the period after divorce. Indeed, for many years the Court of Cassation held that, in the event of divorce, custody had to be granted to one of the spouses and that a joint custody arrangement was contrary to Turkish public order. However, the international conventions to which Türkiye is a party and the changing social structure paved the way for this strict view to soften over time and for joint custody to become applicable in Turkish law as well. Following this practice, the answer to the question What Is Joint Custody? also gained considerable importance.
Two important international instruments lie at the basis of this change:
- In Answer to the Question What Is Joint Custody, the United Nations Convention on the Rights of the Child: This convention emphasises that "the child's best interests" should be the fundamental consideration in all judicial and administrative activities concerning children.
- In Answer to the Question What Is Joint Custody, Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms: Article 5 of this protocol, which has also been ratified by Türkiye and has become part of domestic law, provides as follows: "Eşler evlilikte, evlilik süresince ve evliliğin sona ermesi durumunda, kendi aralarında ve çocukları ile ilişkilerinde medeni haklar ve sorumluluklardan eşit şekilde yararlanırlar." "In marriage, during the marriage and in the event of the dissolution of the marriage, spouses benefit equally from civil rights and responsibilities between themselves and in their relations with their children." (unofficial translation)
Since these international instruments have the force of law under Article 90 of the Constitution, courts can now rule in favour of joint custody in cases where the child's best interests so require and the parents have also agreed. With a precedent decision delivered by the 2nd Civil Chamber of the Court of Cassation in 2017, it became settled that joint custody is not contrary to Turkish public order, and after that date it began to be applied more frequently by Family Courts. It is also a fact that the answer to the question What Is Joint Custody gained importance with this decision.
Turkish Civil Code Article 336 | Scope of Custody
While the marriage continues, the mother and father exercise custody jointly.
If the common life has ended or separation has occurred, the judge may grant custody to one of the spouses.
On the death of one of the mother and father, custody belongs to the surviving parent; on divorce, it belongs to the party to whom the child is left.
In Answer to the Question What Is Joint Custody: What Are the Conditions for Joint Custody?
For a court to be able to rule in favour of joint custody, specific conditions must be present together. These conditions are aimed entirely at protecting the child's interests.
- The Importance of the Child's Best Interests in Answer to the Question What Are the Conditions for Joint Custody: The most fundamental and indispensable condition for a joint custody decision to be given is that this arrangement serves the child's best interests. Even if the parents wish it, the judge may reject this request if, in the assessment to be made, the judge concludes that joint custody would harm the child's physical, mental or moral development. This is because the custody of the common child concerns public order.
- The Parents' Agreement and Request in Answer to the Question What Are the Conditions for Joint Custody: As a rule, joint custody requires that the parents have agreed on this matter and make a joint request to the court. If there is a dispute between the parties regarding custody, that is, if each party wants sole custody, the judge is not expected to rule in favour of joint custody of their own motion. This matter is set out in a protocol and submitted to the court, particularly in actions for divorce by mutual consent.
- Cooperation and Communication between the Parents in Answer to the Question What Are the Conditions for Joint Custody: The healthy conduct of joint custody depends on the divorced spouses being able to establish healthy communication and to cooperate for their children. For parents who harbour resentment, anger and hostility towards each other and who cannot agree even on the simplest matters concerning the child, joint custody is not a suitable solution.
- Obtaining the Child's View in Answer to the Question What Are the Conditions for Joint Custody: According to the settled case law of the Court of Cassation, the view on custody of a child who has reached the age of discernment (idrak yaşı; generally 8 years of age and above) must be obtained. Although the child's wish is not decisive on its own, the judge will take the child's statements into account as an important factor when deciding.
Table: What Is Joint Custody? What Are the Advantages and Disadvantages of Joint Custody?
Although joint custody has the potential to secure the child's best interests, it may not be suitable for every family structure. For this reason, its advantages and disadvantages need to be assessed carefully before a decision is made.
| Advantages | Disadvantages |
|---|---|
| Child-Centred Benefits: It enables the child to maintain a strong and regular relationship with both parents. By reducing the feeling of abandonment and loss brought about by divorce, it contributes to the child's emotional stability. | Difficulties in Decision-Making: It requires continuous communication and compromise between the parents. In the event of disagreement, taking decisions on important matters such as the child's education and health may become difficult, and this situation may give rise to new legal proceedings. |
| Parent-Centred Benefits: Sharing parental responsibilities (care, education, financial expenses) lightens the burden on a single parent. Equal rights and responsibilities may reduce custody disputes and actions between the parents. | Practical Difficulties: Where the parents live in different cities or there is a geographical distance between them, the implementation of joint custody may become practically impossible. The child's constant moving back and forth between two homes may cause adjustment problems and instability. |
| Communication and Cooperation: It encourages the parents to set aside their roles as former spouses and to cooperate and establish healthy communication for their children solely in their identities as mother and father. | Increased Potential for Conflict: For parents with a high level of conflict between them, joint custody may create a ground for this conflict to continue, and this situation affects the child negatively. |
In Answer to the Question What Is Joint Custody: Maintenance in Joint Custody
One of the most important matters in the divorce process is maintenance. Contrary to a common misconception, a decision for joint custody does not automatically eliminate the maintenance obligation. Maintenance in joint custody (child support, iştirak nafakası) is a right that the parent with whom the child actually stays and who undertakes the child's care can claim from the other parent.
In determining the amount of maintenance in joint custody, the judge takes the following matters into account:
- The child's age and basic needs and expenses such as education, health, housing and clothing.
- The economic and social circumstances, incomes and ability to pay of both parents.
- The aim is to ensure that both parents contribute to the child's expenses in proportion to their financial means. Even if the parties have agreed on maintenance in the protocol for divorce by mutual consent, the judge may change this amount having regard to the child's best interests, or may award maintenance even if it has been agreed that no maintenance will be paid. This is because child support concerns public order.
How Is a Change of Custody by Agreement Made?
Custody decisions given in a divorce action do not have the nature of a definitive judgment. When circumstances change over time and the child's interests so require, the custody arrangement can be made anew. This is possible through an "Action for Change of Custody". So, How Is a Change of Custody by Agreement Made?
The basic condition for a change of custody (velayetin değiştirilmesi) is the emergence of a substantial and lasting change showing that custody remaining with the current parent is contrary to the child's interests. For example, situations such as the remarriage of the parent holding custody, moving to another city, the deterioration of that parent's health or the neglect of their responsibilities towards the child may each be a reason for a change of custody.
If both parents agree on the change of custody, they may apply to the Family Court by setting this out in a protocol. In this case, the process will progress much faster than in a contested action. However, the parties' agreement is not sufficient on its own. The judge will in every case examine whether this agreement is in the child's best interests and will give a decision after collecting evidence such as the professionals' report. Accordingly, the answer to the question How Is a Change of Custody by Agreement Made? is that the parties apply to the Family Court by agreement and the judge approves this change, finding it consistent with the child's interests.
Where Is a Custody Document Obtained? Can a Custody Document Be Obtained from the e-Government Gateway?
The document required to prove custody status officially can be obtained from the court file in which the custody decision was given. This document is a copy of the court's reasoned judgment. Today, it is not compulsory to go to the courthouse to obtain this document; the court decision can also be accessed through the UYAP Citizen Portal (UYAP Vatandaş Portal).
So, can a custody document be obtained from the e-Government Gateway? No document under the name "Custody Document" is generated directly via the e-Government Gateway (e-Devlet, the state's online public services portal). However, the civil registry record (Nüfus Kayıt Örneği), which can be obtained through the services of the General Directorate of Population and Citizenship Affairs (Nüfus ve Vatandaşlık İşleri Genel Müdürlüğü), when obtained in the form showing events (vukuatlı), contains in the child's civil registry entry the annotation of the court decision as to whom custody has been granted. This custody document of the child is accepted by many official institutions as sufficient to prove custody status. A notary, on the other hand, does not have any authority such as granting custody or issuing a custody document.
In a matter as highly sensitive as custody, which directly affects the child's future, obtaining legal support from the very beginning of the process is of great importance. Particularly in large cities such as Adana, working with an Adana Divorce Lawyer experienced in family law will ensure that losses of rights are prevented and that the process is managed in the most appropriate way, having regard to the child's best interests. Custody actions are not merely part of the divorce process but are actions that require particular experience in their own right. For this reason, obtaining support from a lawyer known among the public as "the right custody action lawyer in Adana", who has demonstrated competence in this field, is one of the most appropriate steps to be taken for your child's future. It should not be forgotten that every lawyer's primary aim is to protect, to the fullest extent, the rights of their client and, in this process, of the child. For this reason, working with an Adana Custody Action Lawyer plays a critical role in ensuring that the process progresses soundly.
Legal Notice: This article has been prepared for general information purposes and does not constitute legal advice. Although our articles are reviewed at regular intervals, the currency of our article cannot be assured in view of case law that changes every day. Each specific case must be assessed according to its own particular circumstances. You are advised to obtain professional legal assistance in order to avoid losses of rights.