When Is Custody of a Child Granted to the Mother?

Fundamental Principles of Custody Law and the Principle of "the Child's Best Interests"

The Legal Definition and Scope of the Concept of Custody

The above provision is laid down in Article 335 of the Turkish Civil Code. As this definition shows, custody is not merely a right but also a set of duties and responsibilities imposed on the mother and father. These rights and duties cover the protection of the child's person and property, and the child's care, supervision, education and legal representation.

Custody is a strictly personal right relating to public order; it therefore cannot be transferred, does not pass by inheritance and cannot be waived in advance. As long as the union of marriage continues, the mother and father exercise custody jointly under TMK Art. 336/1. However, where the union of marriage ends by a decision of divorce or separation, the judge is obliged to leave custody to one of the spouses. At this point, the question whether custody will be granted to the mother or to the father is one of the most critical questions of a custody action. So, when is custody of a child granted to the mother?

The Main Principle in Answer to the Question "When Is Custody of a Child Granted to the Mother?": The Child's Best Interests

The cornerstone and indispensable principle of Turkish custody law is the principle of "the child's best interests". As accepted in the consistent decisions of the Court of Cassation and in legal doctrine, this is the sole criterion that the court must primarily take into account in all assessments relating to custody. This principle aims to safeguard not only the child's present but also the child's future physical, intellectual, emotional, moral and social development.

The legal bases of this fundamental principle are found in both national and international legislation. Article 3 of the United Nations Convention on the Rights of the Child, to which Türkiye is also a party, expressly states that in all actions concerning the child the interests of the child must be a primary consideration. Under Article 90 of the Constitution, that convention is part of domestic law and has the force of law.

The principle of the child's best interests has an absolute and dynamic nature. This means that, rather than being a static rule, the principle is a concept that is reinterpreted and shaped according to the particular circumstances of each specific case. This principle grants the judge an extremely broad discretion, rendering even other legal presumptions such as "need for the mother's care" secondary. Accordingly, factors such as the parents' degrees of fault in the divorce, moral value judgements or social standing do not on their own determine the custody decision. These factors are taken into account only and solely to the extent that they concretely affect the child's best interests.

The Role of the Judge in Custody Actions: The Principle of Investigation of the Court's Own Motion and Broad Discretion

The fact that custody actions relate to public order distinguishes the judge's role in the proceedings from that in an ordinary civil action. The judge is not bound by the parties' claims, defences and evidence. In order to determine the child's best interests, the judge has the power and the duty to carry out, of their own motion, all the investigations they consider necessary.

In this context, the judge may:

• Send official letters to the relevant institutions for the social and economic circumstances of the parties to be investigated.
• Examine on site the environment in which the child and the parents live.
• Under Article 5 of Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts, decide to obtain a "Social Investigation Report" (SİR) from a panel of psychologists, pedagogues and social workers assigned to the court. These reports provide the court with critical information about the psychological state of the child and the parents, their living conditions and the dynamics of the relationship between them.
• Obtain the view of a child who has reached the age of discernment by hearing the child in person or through a professional.

This principle of investigation of the court's own motion is a requirement of the principle of the child's best interests. The judge aims to give the fairest and most accurate decision by gathering, of their own motion, evidence that the parties could not submit or overlooked but that is of vital importance for the child's future. Although this somewhat reduces the predictability of custody actions, it provides a flexible and protective mechanism that makes it possible to find the solution most suited to each child's individual situation.

Although the law grants equal rights to the mother and father when custody is arranged in divorce actions, judicial practice has developed strong presumptions favouring the granting of custody to the mother, particularly for children in particular age groups. This section will examine the legal and case-law bases behind the granting of custody to the mother.

Legal Bases and the Principle of Equality in Custody Actions

The Turkish Civil Code No. 4721 basically holds the mother and father in an equal position with regard to custody. The joint exercise of custody while the union of marriage continues (TMK Art. 336/1) is the clearest sign of this equality. In the event of divorce, the judge has to take this principle of equality into account as well when granting custody to one of the spouses. However, this is not an absolute mathematical equality. Legal equality is applied to the specific case after being filtered through the principle of the child's best interests. Accordingly, there is no provision in the law that custody will be granted primarily to the mother or to the father. The decision is shaped entirely by the circumstances of the specific case and the child's interests.

The Presumption of "Need for the Mother's Care and Affection" and Judicial Practice in Answer to the Question "When Is Custody of a Child Granted to the Mother?"

Although there is no express provision in the law, the most important presumption, which the Court of Cassation has applied consistently for many years, is that a young child is "in need of the mother's care and affection". This presumption is based on the acceptance that the mother's presence and attention are of vital importance for the physical and emotional development of children, particularly in the pre-school period (generally the 0-7 age range).

This case law creates a distribution of the burden of proof. The mother has a natural advantage for custody to be granted to her. For the father to be able to rebut this presumption, he must prove with concrete evidence that the mother's performance of the duty of custody poses a "serious and convincing" danger for the child. Abstract allegations or the mother's faulty conduct as a spouse are not sufficient to overcome this presumption.

However, this principle is not absolute and is in the nature of a "rebuttable presumption". If the child's best interests show that the child's remaining with the mother is detrimental (for example, the mother's serious health problems, drug addiction or neglect of the child), the court may grant custody to the father despite this presumption. Accordingly, the "mother's affection" principle is a starting point, but the final decision is always made according to the child's interests.

Assessment of Custody Decisions by the Child's Age Group

The effect of the presumption of "need for the mother's care and affection" diminishes as the child grows older and gives way to other criteria. In judicial practice, the following trend is observed by age group:

The Answer to the Question When Is Custody of a Child Granted to the Mother for a Child Aged 0-3

Children in this period are regarded as absolutely dependent on the mother. The meeting of basic needs such as feeding, hygiene and emotional security by the mother is considered critical for the child's healthy development. For this reason, unless there is a very serious and exceptional circumstance preventing the mother from performing the duty of custody (serious mental illness, abandonment of the child, etc.), custody is granted to the mother almost absolutely.

The Answer to the Question When Is Custody of a Child Granted to the Mother for a Child Aged 3-7

Although the child's biological dependence on the mother decreases in this age range, the emotional and psychological need for the mother's affection continues. For this reason, the tendency to grant custody to the mother continues. However, in this period, factors such as the social and economic opportunities and the living conditions that the father will provide to the child begin to be taken into account to a greater extent. Even if the child's statement is taken in this age group, its effect on the decision is limited; the court rather assesses objectively the opportunities offered by the parents and the child's interests.

The Answer to the Question When Is Custody of a Child Granted to the Mother for a Child Aged 8-12

According to the practice of the Court of Cassation, the age of 8 is accepted as the child's "age of discernment". From this age onwards, the child is presumed to be able to express their own thoughts and preferences at a reasonable level. For this reason, it is a legal requirement that the court hear the child accompanied by a professional (pedagogue, psychologist) and obtain the child's view before giving a custody decision. Although the child's statement is not binding on the court, it becomes one of the most important factors affecting the decision. The effect of the presumption of the mother's affection has diminished considerably in this age group, and factors such as the child's own preference, the living standards offered by the parents, educational opportunities and the social environment to which the child is accustomed come to the fore.

The Position of a Child Born outside Marriage in Custody Actions

The Turkish Civil Code has introduced an extremely clear provision on the custody of a child born outside the union of marriage. The above provision is laid down in Article 337 of the TMK. This rule does not change even if parentage has been established through the father's acknowledgement of the child or as a result of a paternity action. Custody legally belongs directly to the mother from birth, and no court decision is needed for this.

The exceptions to this rule are set out in the same article. If the mother is a minor, legally restricted (kısıtlı) or has died, or if custody has been removed from her, the judge, having regard to the child's interests, either appoints a guardian for the child or grants custody to the father. As can be seen, even in these exceptional situations custody does not pass automatically to the father but is made dependent on a decision to be given by the judge after assessing the child's best interests.

Exceptional Situations in Which Custody of a Child Will Not Be Granted to the Mother or Will Be Removed from the Mother | When Is Custody of a Child Not Granted to the Mother?

The general tendency and legal presumptions in favour of granting custody to the mother are not absolute and unlimited. The principle of the child's best interests may require custody to be granted to the father or removed from the mother in situations that prevent the mother from duly performing the duty of custody or that endanger the child's physical, mental and emotional development. These situations must be established by the court with concrete evidence and through careful examination.

The Effect of the Mother's Lifestyle in Answer to the Question "When Is Custody of a Child Not Granted to the Mother"

The mother's personal lifestyle is assessed as a factor in custody decisions only if it adversely affects the child's development. Judicial decisions distinguish the mother's conduct as a "spouse" from her responsibilities as a "parent".

• Effect of Living a Dishonourable Life: This concept refers to a way of life that is contrary to society's general sense of morality, is continuous and adversely affects the child's development. For example, situations such as the mother constantly sharing her home with different people and turning it into an environment where events occur that the child should not witness may be a reason for granting custody to the father, as they will endanger the child's moral and emotional development. However, these allegations need to be proved with concrete evidence (witness statements, social investigation report, etc.).
• Effect of Infidelity (Unfaithfulness): According to the settled case law of the Court of Cassation, the mother's breach of the duty of fidelity, that is, her infidelity, is not on its own a sufficient reason for custody to be removed from her. The court accepts that being a "bad spouse" does not automatically mean being a "bad mother". However, where there are circumstances that directly harm the child's best interests, such as the mother conducting this relationship in front of the child, involving the child in this relationship or neglecting the child's care and supervision because of this lifestyle, the act of infidelity may play a decisive role in the custody decision. What is critical at this point is not so much the act itself as its concrete effect on the child.

The Effect of the Mother's State of Health in Answer to the Question "When Is Custody of a Child Not Granted to the Mother"

Serious health problems that permanently prevent the mother from performing the duty of custody may require custody to be granted to the father. This covers both physical and mental health problems.

• Physical Illnesses: Where the mother has a serious and permanent physical illness to such a degree that she cannot provide the child's daily care (feeding, hygiene, taking the child to and from school, etc.), custody may be granted to the father in the child's interests.
• Mental Illnesses: The mother having a mental illness that prevents her from comprehending the duty of custody or that poses a danger to the child's safety is an important reason for custody not to be granted to her. Such allegations must in all cases be proved by an up-to-date and detailed medical board report obtained from an authorised health institution.

The Child's Safety Being at Risk in Answer to the Question "When Is Custody of a Child Not Granted to the Mother": The Effect of Neglect, Abuse and Violence

Protecting the child's physical and mental integrity is the most fundamental aim of custody law. The mother engaging in conduct that endangers the child's safety constitutes the most justified and serious reasons for granting custody to the father.

• Violence and Abuse: The mother inflicting physical, emotional or sexual violence on the child, committing abuse, or tolerating such acts committed by a third person are the most serious situations, which will cause her to lose the right of custody immediately.
• Neglect: The mother's persistent and serious failure to meet the child's basic needs (nutrition, shelter, clothing, hygiene, health) is regarded as serious neglect of the duty of custody and is a sufficient reason for changing custody. For example, the child not being sent to school regularly, not being vaccinated or being compelled to live in an unhealthy environment are assessed within this scope.

The Effect of the Mother's Serious Neglect of the Duty of Custody in Answer to the Question "When Is Custody of a Child Not Granted to the Mother"

This category covers situations in which the mother, although not directly harming the child, falls seriously short in fulfilling the responsibilities of custody.

• Addictions: The mother having addictions to alcohol, drugs or gambling serious enough to hinder the child's healthy development, set a bad example for the child and, by shaking the family budget, prevent the child's needs from being met is an important ground for granting custody to the father.
• Committing an Offence and Being Convicted: The mother being convicted of an offence that will adversely affect, in particular, the child's moral development (theft, fraud, etc.) and being imprisoned results in a change of custody, since she will in practice be unable to perform the duty of custody.
• Indifference and Leaving the Child with Third Persons: The mother not taking sufficient care of the child without a valid excuse and evading responsibility by constantly leaving the child with her own parents, relatives or carers is regarded as serious neglect of the duty of custody and may be the subject of an action for change of custody.

The Mother Not Wanting Custody or Abandoning the Child in Answer to the Question "When Is Custody of a Child Not Granted to the Mother"

• Not Wanting Custody: Where the mother expressly declares, during the divorce action or in a custody action filed later, that she does not want custody, the judge will grant custody to the father if the judge sees no situation contrary to the child's interests.
• Abandoning the Child: The question whether custody will be granted to a mother who has left the home depends on the nature of the act of leaving. The mother leaving the matrimonial home to escape the responsibilities imposed on her by the union of marriage, although a ground for divorce, is not on its own sufficient for her to lose custody. However, if the mother, when leaving the matrimonial home, has in fact also left the child in the care of the father or third persons and has not taken care of the child for a long time, this is regarded as strong evidence showing that she has no wish to perform the duty of custody and may lead to custody being granted to the father. What is decisive is not so much leaving the home as abandoning the child and the responsibility of custody.

Other Important Factors Affecting the Custody Decision in Answer to the Question "When Is Custody of a Child Granted to the Mother?"

When a custody decision is given, in addition to the circumstances of the mother and father, a series of factors directly concerning the child and the child's siblings are also carefully assessed by the court. These factors are important for applying the principle of "the child's best interests" to specific cases.

Obtaining the View of a Child Who Has Reached the Age of Discernment

One of the most important developments in modern custody law is the acceptance of the child not as an "object" but as an "individual" with their own rights. The most concrete reflection of this approach is the requirement to obtain the view of a child who has reached the age of discernment on custody.

• Age of Discernment: Both the United Nations Convention on the Rights of the Child and the settled case law of the Court of Cassation require that the child's view be obtained in proceedings concerning the child. In Turkish judicial practice, the "age of discernment" is generally accepted as 8 years and over. A decision on the custody of a child of this age cannot be given without obtaining the child's view; otherwise, this is regarded by the Court of Cassation as an absolute ground for reversal. A child over the age of 8 consistently showing the will "I want to live with my mother" is important for custody to be left with the mother.
• Nature and Effect of the View of a Child Who Has Reached the Age of Discernment: The child's statement is not absolutely binding on the court. The judge assesses whether the child gave this statement under pressure or under the influence of the other parent, whether the statement reflects the child's own genuine will and, most importantly, whether this preference is consistent with the child's best interests. For example, if the child prefers one parent because that parent offers a more relaxed and undisciplined environment, but the educational and developmental opportunities offered by the other parent are better, the judge may decide contrary to the child's statement.
• Procedure for Obtaining the View: Obtaining the child's view is a sensitive process. It must in all cases be carried out accompanied by a professional (pedagogue, psychologist), in an environment where the child will feel comfortable and safe, away from the stress of the courtroom. The professional is responsible for assessing the sincerity of the child's statement and the child's level of maturity and for submitting a report to the court.

The Principle of Siblings Not Being Separated from One Another

Where there is more than one child in the divorce process, the question to whom custody of 2 children is granted on divorce arises. At this point, the fundamental principle adopted by the Court of Cassation is that "siblings should not be separated from one another".

• Rationale for the Principle of Siblings Not Being Separated from One Another: This principle is based on the idea that the emotional bonds between siblings, the support they provide to each other in their development and their sharing of a common destiny are of vital importance for their emotional and social development. It is accepted that separating siblings may have traumatic effects on both children.
• Exceptions to the Principle of Siblings Not Being Separated from One Another: This principle is not absolute either. In compelling cases required by the child's best interests, custody of the siblings may be granted to different parents. Examples of such exceptional situations include the following:

• One of the siblings having reached the age of discernment and insistently preferring a different parent from the other sibling.
• One of the siblings having a particular health problem or disability and therefore needing the special care of one of the parents.
• Serious incompatibility or conflict between the siblings.
• One of the parents having the financial or physical conditions to assume custody of only one child. In such situations, even if the court decides to separate the siblings, it is obliged to take special measures to ensure the continuation of personal relations between the siblings (such as their coming together during holidays and at weekends).

The Socio-Economic Circumstances of the Parents

The parents' financial situation and social opportunities are a factor that is taken into account in the custody decision but is not decisive on its own.

• Economic Situation: The mother having no income or having a lower income than the father is not on its own an obstacle to her obtaining custody. Custody is not a competition of wealth. What matters is that a minimum standard of living capable of meeting the child's basic needs is provided. In favour of a mother who obtains custody but whose economic situation is insufficient, a high amount of child support (iştirak nafakası, the contribution paid by the parent without custody towards the child's expenses) may be awarded in proportion to the father's economic means. If necessary, the State's social assistance mechanisms also come into play.
• Living Conditions: Factors such as the home in which the parents live, whether it can offer the child a separate room, the physical condition of the home and its social surroundings (proximity to school, parks, safety, etc.) are among the matters to be assessed within the scope of the child's best interests.

The Role and Importance of the Social Investigation Report (SİR)

One of the pieces of evidence that most influences and informs the judge's decision in custody actions is the Social Investigation Report (SİR) prepared by professionals.

Preparation and Content of the Social Investigation Report: The psychologist, pedagogue and/or social worker appointed by the court holds separate interviews with both the mother and father and with the child who has reached the age of discernment. They examine the living conditions on site by visiting the parents' homes. The report contains many objective and subjective data, such as the parents' personalities, parenting skills, attitudes towards the child, state of health, living conditions, the emotional bond between them and the child, and the child's own statement and observed condition.

• Effect on the Judge's Decision: The SİR is not binding on the judge. The judge may give a decision contrary to the opinion in the report. However, according to the practice of the Court of Cassation, where the judge departs from the findings in the report and the professional opinion, the judge needs to explain the reasons for this departure in the decision in a concrete and convincing manner. Otherwise, this may be regarded as a ground for reversal. Accordingly, the SİR is critical evidence that significantly affects the course of the proceedings in custody actions.

The table below summarises the main criteria assessed by the judge in a custody decision and the degree of importance of these criteria, which varies according to the child's age.

Supplementary Matters Relating to Custody

The custody decision not only determines which parent the child will live with but also brings with it a series of supplementary rights and obligations. This section will address and explain practical and procedural matters such as the rights of the father who does not hold custody, the rights of the mother who does not hold custody, the change of the custody decision over time, the institution of joint custody and how documents relating to custody are obtained.

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

The granting of custody to the mother by the divorce decision does not mean that the father's parental role has ended. The legal system provides for a series of rights and obligations in order to protect the bond between the father who does not hold custody and the child and to ensure that he continues his parental responsibilities. This matter will be explanatory for those wondering about "the rights of the father of a child whose custody is held by the mother".

• Right to Establish Personal Relations: This is the most fundamental and indispensable right of the father who does not hold custody. When giving the custody decision, the court must at the same time regulate during which periods, in what manner and for how long the father will see the child. This relationship is generally established so as to cover overnight stays at weekends, spending part of the religious and official holidays together and a specific period during the summer holiday (for example, 1 month). Arbitrary obstruction of this right by the mother is regarded as an abuse of the duty of custody and constitutes a justified reason for the father to file an action for change of custody.
• Obligation to Pay Child Support: The parent who does not hold custody of the common child, even though not having the right of custody, is obliged to contribute to the child's care, education, health and other expenses in proportion to their economic means. Under Turkish law, this contribution is called "child support" (iştirak nafakası) and is determined by the court taking into account the child's needs and the father's income.
• Right to Participate in Important Decisions and to Be Informed: Although the right of custody belongs to the mother, the father has the right to be informed of important developments in the child's life (such as a serious illness, a major operation or a change of school).
• School Registration: The answer to the question whether "the father of a child whose custody is held by the mother" can carry out "school registration" is, as a rule, "no". Transactions requiring legal representation, such as registering the child at school, are carried out by the mother, as the holder of custody, on her own. For the father to be able to carry out this transaction, he needs a notarised power of attorney obtained from the mother. However, in urgent situations or where the mother avoids carrying out the registration, the father may apply to the court and request special authority in this matter or temporary custody.

Action for Change of Custody

Custody decisions are established according to the circumstances at the time they are given and are not absolute rules written in stone. If there is a material change in the situation of the parties or of the child, these decisions can always be reviewed. This mechanism is called an "action for change of custody".

• Conditions of an Action for Change of Custody: The basic condition for filing this action is that there has been a "material change" in circumstances after the date on which the custody decision was given and that this change adversely affects the child's best interests. The grounds listed as examples in TMK Art. 183 are the following: the remarriage, moving to another place or death of the parent holding custody. Through decisions of the Court of Cassation, many new situations have been added to these grounds, such as serious neglect of the duty of custody, obstruction of the child's personal relations with the other parent, and the child reaching the age of discernment and wishing to stay with the other parent.
• Procedure: The action may be filed before the Family Court, without being subject to any time limit, when the situation requiring a change arises. As this action relates to public order, the judge acts under the principle of investigation of the court's own motion and gathers all the evidence (witnesses, SİR, professional reports, etc.). The Action for Change of Custody is subject to the simple trial procedure.
• Change of Custody by Agreement: Even if the parties agree after the divorce on changing custody, this agreement does not on its own produce a legal effect. As custody relates to public order, the parties must apply to the Family Court with a protocol containing their agreement and obtain a judge's decision. Agreements made before a notary have no validity whatsoever regarding the change of custody.

Joint Custody

In traditional Turkish family law, while custody after divorce is, as a rule, left to a single parent, the institution of "joint custody" has also begun to find application in recent years. The main driving force behind this development is Protocol No. 7 to the European Convention on Human Rights, to which Türkiye is a party and which entered into force in domestic law in 2016. This protocol provides that spouses are equal in terms of rights and responsibilities in their relations with their children even in the event of the dissolution of the marriage.

• Conditions: In line with this protocol and the principle of the child's best interests, the Court of Cassation accepts that joint custody may be decided where specific conditions are met. These conditions are the following:

1. The child's best interests requiring joint custody.
2. Both the mother and the father requesting joint custody and having agreed on this matter.
3. The parents having the maturity and communication skills to put aside the hostility between them and cooperate for the child's future.

• Problems in Practice: Although joint custody offers advantages such as enabling the child to establish strong bonds with both parents, there are also disadvantages of joint custody. Since the consent of both parents is required for important decisions such as the child's education, health and travel abroad, decision-making processes may slow down and may lead to new conflicts between the parents.
• Maintenance in Joint Custody: A decision for joint custody does not eliminate the obligation to pay child support. Depending on which parent the child actually stays with more, or if one parent's economic situation is weaker than the other's, the judge may award maintenance against the other parent as a contribution to the child's expenses.

How Is a Custody Document Obtained?

The answers to the questions frequently asked by the parties, "the child's custody document" and "can a custody document be obtained from the e-Government Gateway (e-Devlet)?", are important.

• Nature of the Document: It should first be pointed out that there is no separate "custody document" like an identity card. The custody situation is expressly stated in the operative part of the reasoned decision given by the court at the end of the divorce or custody action. Accordingly, the document proving custody is this finalised court decision.
• Obtaining the Document: A certified copy of this decision can be obtained physically from the registry of the court that heard the case. A more practical method is to access this document through the Ministry of Justice's National Judicial Network Informatics System (UYAP). The parties or their lawyers can log in to the UYAP Citizen or Lawyer Portal with their e-Government Gateway (e-Devlet) passwords and download and print the reasoned decision from the relevant case file.

In Turkish law, the process of granting custody of a child to the mother has a multi-factor and dynamic structure. At the centre of judicial decisions lies the principle of "the child's best interests", which ranks above every kind of legal presumption and parental request. This principle grants the courts broad discretion to assess each case within its own particular circumstances and to give the healthiest and most accurate decision for the child's future.

As a general rule, the settled presumption of the Court of Cassation that young children in particular are in need of the mother's care and affection creates a strong tendency towards granting custody to the mother. However, this presumption is not absolute.

Custody decisions are not static. Material changes occurring after the divorce in the living conditions of the parents or of the child make it possible to reassess the existing situation through an "action for change of custody". This shows the flexible nature of custody law, which is not punitive but protective and able to adapt to the child's changing needs.

In this complex and sensitive process, it is of great importance that the parties obtain professional legal support so that they can assert their rights correctly and, above all, protect the child's interests to the highest degree. Custody actions are areas that require not only legal knowledge but also particular experience, as they have pedagogical and psychological dimensions as well. For this reason, conducting the process with a professional such as an Adana Divorce Lawyer or an Adana Custody Action Lawyer with experience in this field will both prevent the parties from suffering a loss of rights and help the child come through this difficult process with the least harm.