This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Velayet Davası: Çocuğun Üstün Yararı İlkesi.
What decides custody is not what the parents want but the best interests of the child. Being the mother or the father confers no advantage in itself; the court weighs the child's age, the routine they are used to, who has actually been caring for them, and — where the child is old enough to understand — the child's own views.
Decisions about children are the most sensitive part of any divorce. In Turkish law custody is treated not as a contest between parents but as a legal responsibility directed at securing the child's physical, emotional and social development. This article covers how custody is determined, joint parental responsibility, the conditions for varying custody, and the right of contact.
What Is Custody?
Custody is the body of rights and duties given to a mother and father for the protection and development of a minor child's personality, their education and care, the management of their property and their legal representation. It is governed by Articles 335 to 351 of the Civil Code.
While a marriage subsists the parents exercise custody jointly. Where the marriage ends by divorce, death or court order, the judge determines which parent is to have custody. Because custody is a duty as well as a right, it may be varied or restricted if exercised contrary to the child's interests.
Who Gets Custody on Divorce?
In divorce proceedings the judge examines custody of their own motion — independently of what the parties ask for — and decides on the basis of the child's best interests, a principle also enshrined in the UN Convention on the Rights of the Child.
The judge weighs the following as a whole:
- The child's age. For very young children the mother's care often comes to the fore; this is not a rule but the result of assessment on the facts.
- Each parent's financial position: their capacity to meet the child's housing, education and health needs.
- Each parent's living conditions: working pattern, housing, support from those around them, daily routine.
- The child's emotional attachment to each parent, and its quality and strength.
- Each parent's health: whether any physical or mental health difficulty would affect the child's care.
- The social investigation report prepared by social workers, which gives the judge objective information about the family environment.
- Assessment by an educational psychologist, where expert evidence on the child's position is needed.
Custody is awarded to mothers more often where young children are concerned, but that does not mean fathers never obtain it. Where a father shows by concrete evidence that he offers the more suitable environment, custody can be and is awarded to him.
Is Joint Parental Responsibility Possible?
For a long time Turkish law proceeded on the basis that custody was awarded to one parent alone. Following decisions of the Constitutional Court and subsequent legislative developments, joint parental responsibility has become a workable option.
The conditions generally required are:
- that the parties ask for it together, or that the judge concludes on the facts that it serves the child's interests
- that the parents are able to act together on decisions about the child's daily life, education and health
- that each parent supports rather than obstructs the child's relationship with the other
Its advantage is that the child keeps an active and continuous relationship with both parents. Where conflict is intense and communication impossible, however, it may be found contrary to the child's interests and refused.
| Custody | Joint custody | Contact | |
|---|---|---|---|
| Who holds it | One parent | Both parents | The parent without custody |
| Scope | Care, education, representation and management of property | The same powers, exercised jointly | Time with the child on defined days and for defined periods |
| How it arises | By court order | By agreement, if consistent with the child's interests | By court order |
| Can it be varied? | Yes, if circumstances change | Yes | Yes |
Contact is the child's right as much as the non-resident parent's; the parent with custody may not obstruct it.
When Is Custody Varied?
Even after a custody order has become final, the judge may reorganise it under Article 183 of the Civil Code where circumstances change significantly. To bring an application, a concrete and material change occurring after the divorce must be proved.
The principal situations that can lead to a variation:
- evidence that the parent with custody has caused the child physical, psychological or emotional harm
- that parent persistently and deliberately obstructing contact with the other parent
- taking the child abroad, or attempting to, without the other parent's knowledge
- serious interference with the child's education, or disruption to their schooling
- the parent with custody becoming unable to care for the child through serious illness, addiction or financial collapse
- the child reaching an age and maturity at which they can ask for the arrangement to change
The burden of proof lies on the parent seeking the change, so gathering concrete evidence — photographs, message records, witness evidence, school reports, medical documents — directly affects the outcome.
General allegations, or personal disagreements between the parents, are not sufficient on their own. The judge assesses everything against the child's interests, so the evidence must be concrete and reliable.
How Is Contact Arranged?
Article 182 of the Civil Code guarantees the right of the parent without custody to have personal and regular contact with the child. That right belongs to the child as much as to the parent: Turkish law treats a healthy relationship with both parents as part of the child's best interests.
The arrangement is set by the judge and usually covers:
- alternate weekends (from Friday evening to Sunday evening)
- part of the summer holiday (commonly four to six weeks)
- part of the religious holidays, alternating each year
- the child's birthday
- school holidays and half-term breaks
Where a parent with custody obstructs contact, enforcement is sought through the enforcement office, and persistent obstruction may itself become a ground for varying custody.