When Is Custody of a Child Granted to the Father?

The divorce process is an extremely sensitive and complex period not only for the spouses but also for their common children. One of the most critical and emotional aspects of this process is undoubtedly the question of to whom custody of the child will be granted. There is a widespread belief in society that custody, particularly of young children, will be granted to their mothers. Although this belief is a practice arising from the child's need for maternal care and affection and is also supported by the case law of the Court of Cassation, it is not an absolute rule. In Turkish Civil Law, the fundamental and sole principle shaping custody decisions, irrespective of gender, is the principle of "the child's best interests". This principle aims for the child to be with the parent with whom the child can complete their development most fully, focusing on where and with whom the child's physical, mental, moral, social and emotional development will be ensured to the fullest extent.

For this reason, the question "When is custody of a child granted to the father?" shows that fathers also have custody rights at least as much as mothers and may obtain this right under particular conditions. Custody actions are not a "win or lose" struggle between parents but a legal process aimed at structuring the child's future in the healthiest way. Conducting this process stripped of emotional conflicts, with legal evidence and a sound strategy, is of vital importance for protecting the child's interests. At this point, obtaining support from the very beginning of the process from a lawyer experienced in the field, such as an Adana Divorce Lawyer, may help both to prevent losses of rights and to enable the child to come through this difficult process with the least harm.

Objective Criteria Shaping Custody Decisions

The Judge's Discretion and the Principle of Investigation of the Court's Own Motion in the Custody of a Child

Custody is a matter of public order. This means that the judge is not bound by the parties' requests or agreements. For example, even if the spouses have agreed in the protocol for divorce by mutual consent that custody of the child be left to the father, if the judge concludes that this arrangement is contrary to the child's best interests, the judge may refuse to approve the protocol and grant custody to the mother or decide that a guardian be appointed for the child. In custody actions, the principle of "investigation of the court's own motion" (re'sen araştırma) applies. The judge is not content with the evidence submitted by the parties; of their own motion, the judge carries out all the investigations they consider necessary for the child's interests, collects the evidence and assesses it.

The Importance of the Social Investigation Report (SİR) and Professionals' Opinion in Custody Actions

One of the most important pieces of evidence in custody actions is the social investigation report (sosyal inceleme raporu, SİR) prepared by professionals such as pedagogues, psychologists and social workers appointed by the court. These professionals hold separate interviews with the parents and the child, visit the home environments and examine in detail the parties' living conditions, economic situations, social and psychological make-up, parenting skills and communication with the child. This comprehensive report gives the court a scientific perspective on with which parent the child will develop more healthily and peacefully, and influences the judge's decision to a great extent.

Obtaining the Child's View in Custody Actions: The Concept of the "Age of Discernment"

The Turkish legal system accepts that, in custody actions, the child is also an individual and has the right to have a say about their own future. In this context, the concept of the "age of discernment" (idrak yaşı) gains importance. According to the settled practice of the Court of Cassation, children aged 8 and over are deemed to have reached the age of discernment, and their views on custody must be obtained. Custody decisions given without obtaining the child's view are regarded by the Court of Cassation as a ground for reversal. In particular, the statements of children who have passed the age of 12 play a highly decisive role in shaping the decision.

However, the child's statement does not have the nature of an absolutely binding order for the court. The judge carefully assesses whether the child gave this statement of their own volition, whether the child was subjected to pressure or steering by the other parent and, most importantly, whether the child's request serves the child's best interests. For example, a child may prefer a parent for reasons such as that parent offering more material means or setting fewer rules. However, the judge assesses, in the light of pedagogue reports, whether this preference is appropriate for the child's long-term moral and social development.

When Is Custody of a Child Granted to the Father?

Contrary to the general tendency in society, the father obtaining custody is not an exceptional situation. Where the principle of the child's best interests so requires, courts grant custody to the father without hesitation. These situations generally arise where the mother falls short in performing the duty of custody or where there is concrete evidence that the child's interests will be better protected with the father.

The Mother's Failure to Perform, or Abuse of, the Duty of Custody in Custody Actions

One of the most fundamental grounds for granting custody to the father is the mother's failure to perform the duty of custody properly or her use of this right against the child.

• Situations Endangering the Child's Development: Situations that directly endanger the child's physical and mental health, such as the mother using physical or psychological violence against the child, committing sexual abuse, neglecting the child, or drug or alcohol addiction, are the strongest grounds for granting custody to the father. Similarly, the mother having a serious mental illness requiring treatment, where this prevents the care of the child, may also lead to custody being granted to the father. The mother living an immoral and unstable life, with this lifestyle adversely affecting the child's development, is also an important criterion.
• Is Custody Granted to a Mother Who Has Left the Home? This question frequently arises in custody actions. The act of leaving the home is not, on its own, a sufficient reason for losing custody. The law examines the reasons behind this act and its consequences. If the mother left the home for a justified reason, such as violence suffered at the hands of her spouse, and had to leave for a while for the safety of her child, this cannot be interpreted against her. However, the critical distinction here is whether the mother abandoned only the home or also her parental responsibilities. If, after leaving the family home, the mother has not taken any interest in her child at all, has not called or asked after the child and has left the obligation of care entirely to the father or to third parties, this is regarded as "de facto abandonment" (fiili terk) and constitutes strong evidence that she has seriously neglected the duty of custody. In this case, it is highly likely that custody will be granted to the father in accordance with the child's best interests.
• Obstructing the Father's Personal Relations with the Child: The right of custody does not confer a right to sever the other parent's bond with the child. The mother who holds custody systematically and unjustly preventing the father from meeting the child on the days of personal relations determined by the court is regarded as an abuse of the right of custody. This is an important ground for a change of custody.

The Role of the Child's Own Preference to Live with the Father in Custody Actions

A child who has reached the age of discernment declaring, in a manner that is sincere, coherent and in line with their own interests and that is also supported by professionals' reports, that they wish to live with their father is an important factor influencing the court's decision. The court investigates the reasons for this preference and, if it concludes that this will contribute more positively to the child's development, may grant custody to the father.

Leaving Custody to the Father through a Protocol for Divorce by Mutual Consent in Custody Actions

The spouses may prepare a protocol for divorce by mutual consent in which they agree on all the consequences of the divorce and submit it to the court. In this protocol, it is possible to make an arrangement for custody of the common child to remain with the father. If, in its examination, the judge concludes that this agreement has no aspect contrary to the child's best interests, the judge may approve the protocol and grant custody to the father.

Special Situations and Rights in Custody Actions

Custody actions take shape according to each family's own dynamics. Matters such as there being more than one child or the rights of the other parent after custody has been granted to one parent require special arrangements.

To Whom Is Custody of 2 Children Granted on Divorce?

Where there is more than one child, courts observe the principle that "siblings should not be separated from one another". According to the settled case law of the Court of Cassation, siblings growing up together and supporting one another is extremely important for their physical and mental development. For this reason, unless there is a compelling and very exceptional situation, custody of siblings is not divided and granted to different parents.

However, this principle is not absolute. If the child's best interests make the separation of siblings necessary, the court may decide accordingly. For example, custody may be separated in situations such as one of the siblings having a health problem requiring special care that one parent is better able to provide, or a sibling who has reached the age of discernment, unlike the other, insistently and on reasonable grounds requesting to live with one parent. Even in this case, the court takes the necessary measures so that the siblings' personal relations with one another continue without disruption.

Rights of the Mother of a Child Whose Custody Is Held by the Father

Custody being granted to the father does not mean that the mother's parental role ends completely. The mother who does not have custody also retains rights and obligations over the child arising from the law.

• Right to Establish Personal Relations with the Child: The most fundamental right of the mother who does not have custody is the right to establish personal relations with her child. The court sets the framework of this relationship in the divorce judgment. Generally, it is decided that the mother will meet the child, with overnight stays or during the day, on specified weekends of each month, during part of the religious holidays, during the semester break and during a specified part of the summer holiday. These periods are arranged according to the child's age, school situation and needs. This right may be restricted or removed entirely only where the child's best interests so require (for example, where there is a risk of the mother harming the child).
• Obligation to Contribute to the Child's Expenses (Child Support): Even if the right of custody is held by the father, the mother is also obliged to contribute, in proportion to her financial capacity, to the child's expenses such as care, education and health. In this context, the father may claim child support (iştirak nafakası, the contribution paid by the parent without custody towards the child's care and education expenses) from the mother.
• Position in Official Procedures: The child's legal representative is the father, who holds the right of custody. For this reason, the mother of a child whose custody is held by the father cannot carry out school registration or similar official and legal procedures on her own. Important decisions such as obtaining a passport, giving a letter of consent (muvafakatname) for travel abroad and changing the place of residence are taken by the father who holds custody. However, on important matters affecting the child's life (for example, a serious medical operation), informing the mother who does not have custody and also obtaining her view is required by the child's interests.

Action for Change of Custody

Custody decisions do not have the nature of a definitive judgment. Changing circumstances after the divorce action has concluded may require custody to be rearranged. In this case, an action for change of custody may be filed.

For an action for change of custody to be filed, two fundamental conditions must be present together:

1. A Substantial Change in Circumstances: After the date on which the custody decision was given, a significant and lasting change must have occurred in the life of one of the parents or of the child. Situations such as the mother holding custody remarrying, moving to another city or dying, her health seriously deteriorating or her beginning to neglect the child's care are accepted as substantial changes.
2. Impairment of the Child's Best Interests: This substantial change must adversely affect the child's interests, and the continuation of the existing custody arrangement must have become detrimental to the child.

An action for change of custody is one in which the burden of proof is heavier than in the initial custody action. This is because courts attach importance to stability in children's lives and take into account the adverse psychological effects that frequent disruption of the existing arrangement may have on the child. For this reason, the party filing the action must prove, with concrete and strong evidence, not only that they offer better conditions but also that the current situation is "bad" or "inadequate" for the child and that the change has become "necessary".

Custody Document and Official Procedures

In order for the decisions given at the end of custody actions to be used in official procedures, documents showing these decisions are needed.

What Is a Child's Custody Document and Where Is It Obtained?

The official document popularly known as a child's custody document is in fact a certified copy of the reasoned judgment given by the Family Court hearing the custody action, bearing the annotation of the finality of the judgment (kesinleşme şerhi). This document is the final document proving with whom custody legally lies. This enforceable judgment (ilam, the written judgment document) can be obtained physically from the registry of the court that heard the action or electronically through the UYAP (Ulusal Yargı Ağı Bilişim Sistemi, National Judiciary Informatics System) Citizen Portal (UYAP Vatandaş Portalı).

Can a Custody Document Be Obtained from the e-Government Gateway?

One of the questions citizens are most curious about is can a custody document be obtained from the e-Government Gateway? There is no service on the e-Government Gateway (e-Devlet Kapısı, the state's online public services portal) that generates a document directly under the name "Custody Document". However, after court decisions have been entered in the civil registry records, the record showing events (vukuatlı) obtained using the "Civil Registry Record Inquiry" (Nüfus Kayıt Örneği Belgesi Sorgulama) service of the General Directorate of Population and Citizenship Affairs (Nüfus ve Vatandaşlık İşleri Genel Müdürlüğü) may include, in the child's identity information section, a statement as to with whom custody lies. Although this document is accepted by many institutions, especially in sensitive and critical official procedures such as passports and travel abroad, institutions generally request the original or a certified copy of the court's final judgment. For this reason, the most valid and straightforward route is to obtain the court's enforceable judgment from the court registry.

The Father's Right of Custody over the Common Child and the Importance of Professional Support

In summary, in the Turkish legal system the mother and father have equal rights in respect of custody. The perception in society that "custody is granted to the mother" is not a legal requirement but a practice shaped according to the child's age and needs. The answer to the question when is custody of a child granted to the father takes shape in the particular circumstances of each specific case and around a single principle: the child's best interests.

Custody may be granted to the father in many situations, such as the mother neglecting the duty of custody or endangering the child's development, the child having reached the age of discernment and wishing to live with the father, or the parties agreeing to this effect. Custody actions and change of custody proceedings are technical and complex legal processes in which many pieces of evidence, such as social investigation reports, witness statements and professionals' opinions, are assessed meticulously. A wrong step taken in this sensitive process may both lead to a loss of rights and adversely affect the child's future. For this reason, obtaining legal support at every stage of the action from a professional experienced in the field, such as an Adana Custody Action Lawyer or the right divorce lawyer in Adana, is the most appropriate step you can take for your child's future.