Those who Celebrate Father’s Day with a Heavy Heart

The invisible social wound at the background of the Father’s Day, beyond its consumption frenzy, is the fathers who can’t see their children… Lawyer Elvan Kılıç wrote about the "paternity rights" of the fathers who have to watch a happy world from afar, who have to spend their Father's Day longing for their children, especially those whose children were abducted abroad by their wives…

One of the legal problems in today's world is the custody of the child after the divorce or separation of parents, the establishment of a personal relationship, the parents' disregard of the established relationship and that the parents see their children through the bailiff channel. We even observe that children are abducted abroad. In this article, on the occasion of Father's Day week, we will examine what rights fathers have especially in case of abduction of children abroad.

International child abduction is a long-standing problem, but with the increase in multicultural marriages and the increase in divorce rates, the rate of such abductions continues to increase rapidly. International child abduction has various effects on both children and parents, but especially the child who is the victim of this action is not only deprived of contact with the other parent and of love, compassion and sense of protection s/he is supposed to receive from that parent, but also becomes distanced from his/her own house and transferred to a new culture, a different legal system, a different language, and usually, a different social structure. And these differences make international child abduction cases complicated and difficult to solve.

The Hague Convention on the Legal Aspects of International Child Abduction was published in the Official Gazette on 15.02.2000 and entered into force. The purpose of the Convention is to protect children under the age of 16 (Art. 3/last paragraph) from the harmful effects of unlawful displacement and to ensure their immediate return to the habitual state. In the same way, the principle of the best interests of the child protected by the United Nations Convention should be protected by taking the necessary measures by the States that are parties to the Convention, just as the Convention here. For this reason, the child who was displaced or detained illegally is requested to be returned within one year of the date of displacement or detention, the child must be returned immediately without delay. (Con. art. 12/1)

The father, who claims that a child has been relocated or detained in violation of right to protection, may apply to the central authorities of the child's habitual residence or to the central authority of any other State party to assist him in returning the child. The application should include the following:

a) Information about the identity of the claiming father, the child and the person claimed to have taken or to be holding the child;

b) If possible, the child’s date of birth;

c) The grounds on which the requestor bases his application to request the return of the child,

d) All available information about the child's location and the identity of the person assumed that the child is with.

If the judicial or administrative authority applied to does not decide within six weeks of the application, the requesting or the requested authority may request a document on the reasons for the delay by its own initiative. The authority must immediately decide on the return of the child.

There are exceptions to this situation. If the judicial or administrative authority of the state where application is made observes situations such as that the child's psychology will be severely affected, the father is allowed to go abroad, the child does not want to return and that s/he is old and mature enough for his/her opinion to be taken into account, the authority may refuse to order the return of the child.

In national regulations, the issue of child abduction is considered as a crime in the Turkish Penal System and the subject and sanctions of the crime are discussed in paragraphs 1 and 2 of Article 234 of the TPC.

If a parent or guardian or a third-degree blood relative, whose custody authority has been taken away, abducts or detains a child under 16 years of age from a parent, guardian or other person the child is under custody or care of, it constitutes offense. For example, abduction of a child by the mother or father who does not have a temporary custody of the child while the divorce proceedings are in progress. The father, whose child has been abducted, can apply to the public prosecutor's office within 8 years after learning about the abduction. If there is threat or coercion in the abduction, the punishment of the perpetrator is increased depending on the age of the child.

As a result, according to the Hague Convention on the Legal Aspects of International Child Abduction, a father whose child has been abducted by the mother may prepare the necessary documents and apply for the return of the child to the central authority, on condition that the child is under 16 years of age and it has not been more than a year since the abduction of the child. In addition, in the case of child abduction, which is a crime in the TPC, if the father has the custody, he can file a criminal complaint against the mother at prosecutor's office.