Custody is the legal duties, powers and rights that the parents have over their child and their child’s property in order to ensure their care and protection.
According to the Turkish Civil Code article 335, underage children are under the custody of their parents. The custody of the child cannot be taken from the parents unless legal reasons require it. As long as the marriage continues, the parents use this right together. In cases of divorce or separation, the custody of the child is determined by the judge.
It continues until the child’s maturity. If the adult child is restricted, the judge may also decide to keep the child under the custody of the parents or to put the restricted child under guardianship.
It is a right that is strictly attached to the person and cannot be transferred to another person, and the right of custody cannot be waived. Unless there are legal requirements, the right cannot be taken from the parents.
What does custody include?
Parental custody is regulated in general terms under article 339 of the Turkish Civil Code. According to the law, the right of custody includes the following:
-When using the right of custody, the opinion of the child is taken to the extent possible.
Child’s opinion should be taken to the extent of his/her maturity when using the right of custody. Turkish Civil Code cares about the perspective of the child while organizing his/her social and educational life.
-Parents make decisions about the care and education of the child.
The parents can make decisions about the care and education of the child in their best interest. According to Turkish Civil Code article 340, child’s education is both a right and a duty for the parents.
-Children are obligated to listen to their parents if it is in their best interest.
Provided that it is in the best interest of the child, the child should pay attention to the parents’ advice and follow their instructions. If the child receives instructions contrary to their best interest, protective measures are taken by the judge in accordance with Turkish Civil Code article 346.
What is custody?-Naming the child
Those who have the right of custody have the right to name the child.
-Child’s place of residence
Child’s place of residence shall be the same as the people whose custody the child lives under.
The child cannot be taken from their parents without a legal reason. Likewise, the child cannot leave the house without their parents consent.
-Parents’ rights and duties to manage the property of the child
The right to manage the child’s property belongs to the parents as long as the custody continues. This is both a right and a duty for parents. If the parents do not fulfill their responsibilities, the judge may intervene in the name of the protection and best interest of the child’s property.
If the parents are divorced, the parent that has the right of custody is obliged to hand the book showing the child’s asset value over to the judge and notify any significant changes that occur in child’s assets and investments.
According to the law, parents can use their child’s property. If these goods generate income, it is used primarily for the child’s care, education and all the needs they may have for a healthy upbringing, and then to meet the family’s needs in fairness.
The parent’s right to manage the child’s property ends in the following ways:
When custody ends
When management is taken from parents
According to the law, at the end of the custody, the child’s property is returned to them. The parents are responsible as a proxy in the return of the goods. The parents are responsible for returning the goods to the child in accordance with the honesty rule. In addition, the parents are not obliged to pay compensation for the expenses made for the child and family.
-Protection of the child against parents and abuse of the custodyProtection of the child’s personality
Necessary measures can be taken to protect the development and interests of the child upon the application of the concerned parties or the ex officio action of the judge. The law gives discretion to the judge as to what measures to take. Parents can be held responsible to behave in a certain way or avoid certain behaviors. The conditions for taking protective measures are as follows:
– The child’s interests and development must be in danger.
– Parents should not be able to find a solution to this situation nor have the power to remove the danger.
Examples of the situations that may require the protection of the child are as follows:
– Not meeting child’s basic needs
– Humiliating behaviors towards the child
– Unnecessary or inappropriate punishments and violence against the child by parents
Protection of the child’s property
In case the parents do not show enough care while managing the child’s property or act against the best interest of the child, the judge takes the necessary measures to protect the child’s property.
The following are the protective measures that the judge can take while the parent’s right to manage the child’s property continues:
– Giving instructions to the parents on the management of the property
– Requesting the assurance of the parents
Removal of the right to manage the child’s property from the parents:
If these measures are not sufficient, the judge may transfer the property management of the child from the parents to a trustee for their best interest. This practice also applies when the condition of the child’s free goods is in danger and it is doubtful that the income of the child’s property will be spent appropriately by the parents.
These measures disappear with the ending of the custody. In order to end the measures, a court decision must be taken.
Removal of custody
If the parents cannot fulfill the duties and responsibilities brought by the custody and the protection measures taken in accordance with the law is not sufficient, the custody may be abolished.
The conditions for the removal of custody:
– The parents must not be able to fulfill their guardianship duties as required due to inexperience, illness, disability, being physically apart or similar reasons.
– Parents do not show the child the attention they need or are seriously flawed while fulfilling their responsibilities towards them.
Custody is removed by court order. Even if there is no demand of the concerned, the judge may decide ex officio in accordance with the best interest of the child. If the custody is removed from both parents, a guardian will be appointed to the child. The rights of the parents related to the custody end with the abolition of the custody. However the expenses for the child’s care and education as well as alimony obligations continue. If the parents are not able to meet these expenses, they will be covered by the state.
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Stj.Av.Çağla Ersungur
Av.Harun Ümit Eren
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