WHAT IS CUSTODY?
Custody is the upbringing of a child under the care of their parents until the child reaches the lawful age. During marriage, parents use custody together. In case of divorce, the custody of the minor is awarded to the parent the judge decides that the child will stay with.
HOW IS CUSTODY DECIDED AFTER DIVORCE?
Provisions regarding custody are contained in Article 182 and paragraph 3 of Article 336 of the Civil Code in the Turkish Law. In Article 182, the determination of custody is left to the discretion of the judge trying the case. In short, the judge determines custody as follows: “When deciding on divorce or separation, the court regulates the rights of the parents and their personal relations with the child after listening to the parents where possible, and, if the child is under guardianship, after receiving the opinion of the guardian and the guardianship authority”. This is to mean; the judge needs to see which parent the child is happy with. For this reason, in divorce cases, the child is interviewed by a pedagogue and the expert pedagogue is consulted. Today, judges try to award joint custody rather than sole custody to one party, for the best interests of children. Article 336 of the Civil Code states: “As long as the marriage continues, the mother and father use custody together. If the joint life has been terminated or separation has occurred, the judge may award custody to one of the spouses. The custody belongs to the survivor in the event of the death of one of the parents and to the party whom the child is decided to stay with in divorce.” In other words, the rules that the judge will apply are clear in case of the child. When we go beyond these articles; there may be a joint custody where the child shall not stay with only one parent but shall be raised jointly by both parents.
HOW IS JOINT CUSTODY REGULATED BY OUR LAW?
There is no law article in our law that regulates the issue of "joint custody" clearly and precisely. We have already explained the articles regarding custody above, but no evidence is contained therein that joint custody can be awarded. However, when we look at international law, Article 3 of the United Nations Convention on the Rights of the Child puts states which are a party to the Convention and regulates joint custody as based on explicit interpretation. It is stated that high measures must be taken to protect the benefit of the child. One of them is the determination of which parent will be given the child whose family unity is disrupted or whether the custody will be joint or not. With another article, Article 5 of Protocol No. 7 added to European Convention on Human Rights, the principle of equality between spouses has been introduced, thus protecting the child's benefit at a higher and equal level. In this article, it is stated that spouses are equal in terms of rights and responsibilities in their relations with their children and between themselves. So when the judge decides, taking this into consideration, may observe whether the child will be happier under joint custody and whether the parents can conduct their personal relationship with their children jointly in cooperation.
SO, WHEN THERE ISN’T ANY ARTICLE REGULATING THIS MATTER IN OUR LAW, HOW CAN WE TAKE INTERNATIONAL CONVENTIONS INTO CONSIDERATION IN A SUBSTANTIAL CASE?
In fact, Article 90, paragraph 5 of the Turkish Constitution clearly stipulates that in case of a dispute, the judge shall apply the international convention instead of the law. Therefore, the above-mentioned provisions may be interpreted for joint custody.
IS JOINT CUSTODY A CONCEPT FROM COMPARATIVE LAW?
It may vary from country to country. In Switzerland, for example, with the last amendment to the law, if a lineage connection is established with the father regarding the custody of the child born out of wedlock, there is joint custody. Actually, in general, the situation of children out of wedlock is not considered to be much of an issue in European countries and therefore the problems of the society are adapted according to the law. In Switzerland, sole custody was the rule, and joint custody was the exception; joint custody was possible only if certain conditions were met. If the mother and father had a joint request for joint custody, if an agreement was made by the mother and father regarding the sharing the child care and sharing the care expenses, and if the agreement was found suitable by the judge, the judge could decide that the custody shall be used by the mother and father together, on condition that it was for the high benefit of the child. However, with the amendments made in 2014; in case of divorce of the parents, the court regulates the custody of the child, residence, right to see the child, the division of parental obligations and the financial contribution to the child's care expenses; the court makes these regulations for the best interests of the child, taking into account the joint proposal of the parents and, if possible, the child's opinion. In Germany; each of the parents can apply to the court to request a court decision that the child's custody be used together. Previously, before the amendment of the law, a joint application by parents was required for both parents to use the custody of the child jointly. However, in a decision it made in 2010, the Federal Constitutional Court of Germany ruled that the father cannot use the child's custody without the mother's consent, and that this provision intemperately limits the father's right to custody. However, this situation changed later, and it was stated that joint custody could be ordered by the application of one parent.
HOW DOES THE JOINT CUSTODY PROCESS WORK FOR THE CHILD?
When the marriage union is broken, the parents can decide among themselves who will take care of the joint child while filing for divorce. In most cases, custody remains with the mother. They can decide on which days the child will see the other parent by planning among themselves. As mentioned above, in the case of non-joint custody, one of the spouses is awarded the custody of the child. And there are some conditions in case of joint custody:
• The benefit of the child must be present. As mentioned in the above conventions, the child's best interests must be considered by the judge.
• Spouses must agree on this issue. They must also indicate this to the judge during the proceedings, without fail.
• The parents should leave on judge the impression that they will not use the child as a leverage against the other. The reason for this is that the issue of child custody in which the child's benefit is pursued aims to enable the child to maintain his/her life in a healthy way. This is because in some cases the Judge must exercise discretion by paying attention to the characteristics of the substantial event and always considering the child's best interests.
WHICH TYPE OF CUSTODY SHOULD BE PRACTICED IN TERMS OF CHILD PSYCHOLOGY?
Although custody in our law is sole custody, we think that joint custody may be more beneficial for the child. Although sole custody is usually awarded to the mother, in joint custody, the child sees both sides equally. The problem with sole custody is that the child never sees the other parent. And this makes the personal relationship between them weak. The child has a lack of love in the sole custody with one parent, which, over time, traumatizes the child. Later on, such children continue to experience this trauma in their social world. However, in the joint custody as stated in the international convention, there should be an equality between the partners, and the child should be raised under equal conditions by both parents through joint custody solution. In this way, there will be no lack of love and trust, and the child feels more that his/her parents are with him/her. Of course, the conflict between the mother and father affects their children. Parents must be careful about this. Otherwise, this can lead to major problems in child’s psychological state. Even the Supreme Court says that the child should be raised under joint custody. The Supreme Court, which has not made any decisions on this issue before, made a great precedent in 2016 and emphasized that the quality of motherhood and fatherhood will not be lost with the end of the marriage, and the joint custody decision is correct in terms of the child's psychological well-being. This decision is both positive in terms of the psychological state of the child and the parents, and also very positive in terms of the protection of the child in the public order. The Supreme Court also touched upon the differences between joint custody and sole custody.
SUPREME COURT SUMMARIZES THIS DIFFERENCE AS FOLLOWS:
• In joint custody, the minor child in common stays with one parent actually, while for the other parent, personal contact and participation alimony is determined as in sole custody. However, in accordance with the provisions of the joint custody, the parents shall jointly determine the kindergarten, school, course, study center and other social activities where the minor will be enrolled.
• In the case of the child's health status, if the minor child is going to receive inpatient treatment, inpatient medical assistance, or an operation, the parties will decide jointly.
• The child cannot be taken abroad for any reason without the consent and signature of the other parent.
• And in case of sole custody, the custodian parent has the right to act and decide alone. The other parent cannot object to this situation unless the right to custody is abused. So all in all, joint custody is a situation that can change in Turkish law and started to be applied only recently. As a lawyer, I am of the opinion that judges should take the child's psychology into account and determine custody accordingly. Because I believe that the psychological state of a child whose parents are divorced depends on the joint action of the mother and father regardless of their situation. The development of the child depends on the joint action of the mother and father, and it is not good for the future of the child to live his life being constantly pulled back and forth between parents. Expert psychologists and pedagogues agree on this, too. The effects of separation of parents are kind of alleviated through joint custody for the child. If the mother and father act together, the child will not feel lonely and will survive the big event with the slightest of trauma.
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