Joint custody is a type of custody that ensures that the rights of the children are shared equally by both parents in divorce or separation proceedings. In this type of custody, the parents make decisions about the children together and share responsibilities. In joint custody, children live with one parent and have a personal relationship with the other parent for certain periods of time. In Turkish law, in case of divorce, Article 336 of the TCC states that “As long as the marriage continues, the mother and father use the custody together. If the common life has been terminated or separation has occurred, the judge may grant custody to one of the spouses.” Pursuant to the provision of this article, in the divorce case, the court also decides which spouse will have the custody of the joint child under the age of 18 for the spouses who have decided to divorce. Pursuant to Article 182/II of the Turkish Civil Code, the practice that custody should be given to one of the spouses in case of divorce is in conflict with Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms as Amended by Protocol No. 11.
Article 5 “Equality between spouses” of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms” stipulates that “Spouses shall be equal in respect of marriage, during marriage and at its dissolution, in their relations between themselves and with their children, with respect to rights and responsibilities of a private law nature. This article does not prevent States from taking the necessary measures in favour of children.” This article provides for joint custody for joint children in case of divorce. Therefore, the states party to this convention are required to act in accordance with the provisions of the convention.
Pursuant to Article 90 of the Constitution, “International treaties duly put into force shall have the force of law. In case of disputes arising out of differences between international treaties on fundamental rights and freedoms duly put into force and laws on the same subject, the provisions of international treaties shall prevail.” According to this article, the right of custody, which covers the care and education of the child, is also a fundamental right and freedom. In this context, the provisions of international treaties regulating the right of custody shall be applied before the right of custody regulated by the Civil Code and shall be taken as basis before them. Therefore, although joint custody is not regulated in the Turkish legal system, since it is accepted by international conventions, it will be in accordance with the law for the courts to decide on joint custody in divorce cases. In fact, the judge should rule for joint custody in cases where the best interests of the child require it.
In some articles of the United Nations Convention on the Rights of the Child, it is stipulated that joint custody may be decided by emphasising the best interests of the child. For example, Article 3 of the Convention states that “The best interests of the child shall be the primary consideration in all activities concerning children undertaken by public or private social welfare organisations, courts, administrative authorities or legislative bodies”. Furthermore, Article 7 emphasises the importance of establishing a common relationship with the parents by stating that “The child shall be registered in the civil registry immediately after birth and shall have the right to a name, the right to acquire a nationality and, to the extent possible, the right to know his/her parents and to be cared for by them.” Today, one of the difficulties caused by sole custody is that the child cannot adequately recognise his/her non-custodial parents and cannot establish a sufficient personal relationship with them.
In general, custody includes undertaking the child’s moral, religious, social, cultural education and the care required by the child’s basic needs and health. In cases of joint custody, the obligation of education and care shall be shared by the mother and father. The mother and father will jointly decide on the child’s education, care, the school he/she will attend, the education he/she will receive, his/her moral and religious education. In short, the mother and father will make joint decisions on all matters concerning the child. However, while deciding on joint custody, the court determines the amount of financial contribution of the parents to the expenses due to the education and care obligation. In addition, the court also determines who will have the child and when the personal relationship with the child will be established.
Since the issue of joint custody is not stipulated by a national legislation, it is not a common case law for courts to decide on joint custody. The first joint custody decision was issued by Izmir 4th Family Court on 27.05.2009. After this decision, the concept of joint custody started to enter our legal field and was evaluated within the scope of the best interests of the child. Later on, with some decisions of the Court of Cassation, case law on joint custody started to be formed. As the Court of Cassation expands its jurisprudence, joint custody will be applied more widely and more joint custody decisions will be made by the courts.
In the dispute before the 2nd Civil Chamber of the Court of Cassation dated 20.02.2017 with the number 2016/15771 Esas and 2017/1737 Decision number, against the claim that the award of joint custody is contrary to the Turkish public order “…when the concrete case is evaluated according to the explanations regarding our domestic law and the concept of public order, it is not possible to say that the regulation of “joint custody” is “clearly” contrary to the Turkish public order or violates the basic structure and basic interests of Turkish society…” and clearly emphasised that the award of joint custody does not constitute a contradiction in terms of Turkish law and public order.
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