Changing the Surname of the Joint Child to the Surname of the Mother_1-5
T.R.
Supreme Court
2.Legal Department
Docket No: 2018/1306
Decision No: 2018/4719
Decision Date: 09.04.2018
CHANGE THE SURNAME OF THE COMMON CHILD WITH THE SURNAME OF THE MOTHER
REQUEST – SURNAME OF THE CHILD WITHIN THE SCOPE OF CUSTODY RIGHT
INCLUDES THE RIGHT TO DETERMINE – THE CHANGE IS THE CHILD’S RESPONSIBILITY
IT IS NOT CONSISTENT WITH THE BEST BENEFIT – ACCEPTANCE OF THE CASE
– THE JUDGMENT IS REVERSED
SUMMARY: The case is aimed at changing the surname of the common child of the plaintiff mother, who has exclusive custody rights, to her own surname. The request of the mother to whom the right of custody is entrusted to change the child’s surname to her own surname is related to the exercise of the powers within the scope of the right of custody, the right to determine the surname of the child is included within the scope of the right of custody, the right to determine the surname of the child granted to the man in the same legal position within the scope of the right of custody to the woman will constitute a gender-based different treatment in terms of exercising the right of custody, the surname of the family carried by the child born within the marriage union, the mother to whom the right of custody is entrusted upon the termination of the marriage union. Considering that there is no legal regulation preventing the child from changing his/her surname with his/her own surname, that the change in question in the concrete case is not contrary to the best interests of the child, and that the child’s personal situation will not change by changing the surname, it is necessary to decide on the acceptance of the case, taking into account the decisions of the Constitutional Court regarding the violation of rights given in similar cases.
(2709 Law No. 10, 20, 41) (4721 Law No. 27, 282, 292, 321, 335, 336) (2525 Law no. 4) (6216 Law No. 50) (ANY. MAH. 08.12.2011 T. 2010/119 E. 2011/165 K.) (ANY. MAH. 25.06.2015 T. 2013/3434 E.) (ANY. MAH. 11.11.2015 T. 2013/9880 E.)
Case: At the end of the trial of the case between the parties, the decision given by the Civil Chamber of the Regional Court of Justice, date and number shown above, was appealed by the plaintiff, and the documents were read and discussed and considered as follows:
Decision: Plaintiff B. Karakol in his petition dated 12.05.2016; She and Y. Incel, one of the defendants, divorced with the final decision on 27.02.2015, she was given the custody of the common child A. E. with a birth date of 17.03.2011, she had problems in daily transactions due to the difference in the surname of the common child “İncel”, which started school, and her surname before marriage, “Karakol”, and she had to submit a copy of the birth certificate and a divorce decree in order to prove that she was the mother in the transactions related to the child, Claiming that the defendant father is indifferent to the common child, that he has not met with the child for a long time and does not pay alimony, that the child is disturbed by the different surnames of the mother and the child, and that he wants to bear the same surname as the mother, he requested and sued to change the surname of the common child to “Karakol”, which is the surname of the plaintiff mother, with the decision of the first instance court dated 18.07.2017; “According to Article 321 of the Turkish Civil Code numbered 4721, if the mother and father are married, the child will bear the surname of the family, the father is understood from the term “family”, in order to give the child a surname, it will be necessary to check whether the mother and father of that child are married on the date of birth, the parents of A. E. İ., born on 17.03.2011, whose surname is requested to be changed, are married as of the date of birth, and the child born in marriage, according to Article 321 of the Turkish Civil Code. It was decided to reject the case on the grounds that “after the child’s surname is determined in this way, it is not possible to change the child’s surname based on the right of custody, in accordance with the regulation in Article 321 of the Turkish Civil Code, that the child’s surname can only be changed after reaching adulthood, if the conditions in Article 27 of the Turkish Civil Code are met, or if the father changes his own surname by proving the conditions in Article 27 of the Turkish Civil Code, and unless these two situations are met, the child must bear the father’s surname…” was given, and upon the appeal of the decision by the mother, the 2nd Civil Chamber of the Izmir Regional Court of Justice, with its decision dated 14.11.2017, rejected the plaintiff’s request for appeal on the grounds that “…the child born within the marriage union takes the father’s surname in accordance with Article 321 of the Turkish Civil Code…”, and the decision was appealed by the plaintiff mother.
The case is aimed at changing the surname of the common child of the plaintiff mother, who has exclusive custody rights, to her own surname.
From the trial held and the evidence collected; The joint child A. E. was born on 17.03.2011 before the marriage date of the parties, he was recognized by the defendant father on 18.03.2011 and a lineage bond was established with the father, the parties were married on 22.08.2011 and divorced with the final decision on 27.02.2015, with the divorce decision, the custody of the common child A. E. was left to the plaintiff mother, the plaintiff mother still has custody, have the right and responsibility.
From the trial held and the evidence collected; The joint child A. E. was born on 17.03.2011 before the marriage date of the parties, he was recognized by the defendant father on 18.03.2011 and a lineage bond was established with the father, the parties were married on 22.08.2011 and divorced with the final decision on 27.02.2015, with the divorce decision, the custody of the common child A. E. was left to the plaintiff mother, the plaintiff mother still has custody. It is understood that he has rights and responsibilities.
The lineage between the child and the mother is established at birth. Pedigree between the child and the father is established by marriage with the mother, recognition or a judge’s decision. Family ties are also established through adoption (TMK article 282). A child born outside of marriage is automatically subject to the provisions regarding children born within marriage, if the parents are married to each other (TCC Art. 292). The child carries the surname of the family if the parents are married. However, if the mother has a double surname due to her previous marriage, the child bears her maiden name (TCC Art. 321).
Changing the name can only be requested from the judge based on justified reasons. The change of name is recorded and announced in the civil registry. Changing the name does not change the personal situation. The person who is harmed by the name change may file a lawsuit for the annulment of the change decision within one year, starting from the day he learned about it (TCC Art. 27). Surname is one of the most important elements in determining the identity of the individual, which is identified with the individual’s life and has become an integral element of his personality, and is an indispensable, inalienable, personal right that is strictly attached to the individual.
Custody; It refers to the totality of the rights and obligations of the mother or father, their sub-adult children or restricted adult children, regarding their personal assets, assets and their representation regarding these two issues (AKINTÜRK, Turgut: Turkish Civil Code C.2, Aile Hukuku, İstanbul 2002, p. 400). Custody places responsibility on the parent and authorizes them to make necessary decisions regarding the child until he or she reaches adulthood. In this regard, in modern law, custody is accepted as the sum of rights and obligations, as it includes authority and responsibility in terms of ensuring the best interest of the child, as well as a right. The ultimate purpose of custody is to ensure that the minor, who has not yet reached adulthood, is prepared for the future life as an adult (AKYÜZ, Emine Çocuk Hukuku Child Rights Protection, 2012 p.220). In Article 335 of Law No. 4721 regarding the right of custody, it is stated that the minor child is under the custody of the mother and father, and that custody cannot be taken from the mother and father unless there is a legal reason, and the joint use of the right of custody and the powers within this scope is pointed out during the marriage relationship; In Article 336, it is stipulated that as long as the marriage continues, the mother and father will have joint custody, in case of termination of the joint life or separation, the judge may give custody to one of the spouses, in case of death of one of the parents, the custody belongs to the survivor, in case of divorce, the child belongs to the party to whom the child is left, and the principle of equality of the spouses is tried to be reflected in terms of the right of custody and the use of the powers it contains.
In cases of dissolution of marriage or divorce, the second paragraph of Article 4 of the Surname Law No. 2525 dated 21.6.1934, which regulates the determination of the surname of the child who is within the authority of the right of custody, states: “In cases of dissolution of marriage or divorce, the child takes the name chosen or to be chosen by his father, even if he is entrusted to his mother.” The regulation in the form was annulled by the decision of the Constitutional Court dated 8.12.2011 and numbered E.2010/119, K.2011/165, and in the justification of the annulment decision, reference was made to the provisions of the international convention, which includes the need for men and women to have equal rights and responsibilities during marriage and at its termination, and that the spouses are in the same legal position in terms of their rights and obligations throughout the continuation of the marriage and in divorce, within the scope of the right of custody to the man. It was stated that not granting women the right to choose the surname of the recognized child would result in discrimination based on gender in terms of exercising the right of custody, and that the contested rule was decided to be annulled because it was deemed contrary to Articles 10 and 41 of the Constitution.
In the individual application decisions of the Constitutional Court dated 25.06.2015 and numbered 2013/3434, dated 11.11.2015 and numbered 2013/9880, dated 20.07.2017 and numbered 2014/1826; The request to change the surname of the child to whom the right of custody has been entrusted to his/her own surname is a legal value that should be considered within the scope of Article 20 of the Constitution, as it is related to the right of custody and the use of the powers within this scope. The right to determine the surname of the child is included within the scope of the right of protection, care and supervision or similar terms, the spouses are in the same legal position in terms of the rights and obligations they have throughout the continuation of the marriage and at the time of divorce. Stating that not granting the right to women constitutes a gender-based different treatment in terms of exercising the right of custody, and that although the child and the public have a clear interest in ensuring the reliability and stability of the records in the population registers by having a surname for the purpose of determining the child’s membership in a family, the negative effects of giving the mother’s surname to the child must be determined precisely and that the judicial practices subject to the applications cannot be considered to be proportionate, he stated that the Constitution is not used in judicial decisions subject to applications similar to the concrete case at hand. It was decided that the prohibition of discrimination guaranteed in Article 10 of the Constitution, evaluated together with Article 20, was violated, and in the same decisions, it was also decided to send the file to the relevant court for a retrial in order to eliminate the violation and its consequences.
The violation decisions made by the Constitutional Court as a result of individual applications, unlike abstract and concrete norm control, are valid and binding only for the person making the application and the administrative action or decision subject to the application. In the face of the decision of the Constitutional Court, which determined that the violation of rights was caused by the court decision and based on paragraph (2) of Article 50 of the Constitutional Law, “to conduct a retrial to eliminate the violation and its consequences”, it is no longer possible for the first instance courts to decide otherwise in terms of the concrete event and person subject to the application. However, it seems certain that if the similar judicial decisions made in other cases filed to change the surname of the common child of the mother who has the right of custody to her own surname, as explained above, are made the subject of an individual application, the Supreme Court will detect the violation of rights and open the way for a retrial to eliminate the consequences of the violation. It is essential that “allegations of violation of fundamental rights and freedoms”, which are within the common protection area of the Constitution, the European Convention on Human Rights and its additional protocols to which Turkey is a party, should be resolved primarily through ordinary legal remedies in general judicial authorities.
Within the scope of these decisions of the Constitutional Court; The principle of “Best Interest of the Child” also needs to be examined. The most general definition of this principle is to protect the interests of the child at all times and under all circumstances, and it is the highest principle that guides the officers and authorities in all problems encountered in child law, commands to choose a solution for the benefit of the child, and protects the weak against the strong (AKYÜZ, Emine Çocuk Hukuku Child Rights Protection, 2012 p. 10). The best interest of the child is a criterion and a guide that must be taken into account in everything that concerns the child and is taken into account in determining what is best for the child in a specific concrete case. The best interest of the child also assumes a function that guarantees the rights of the child (YÜCEL, Özge Ufuk University Faculty of Law Journal Volume 1 Issue 2, December 2013, pp. 117-137). In fact, giving due importance to the best interests of the child is not only in the interest of the child or the parents, but also of society. Because the positive development of the child in social, cultural, physical and psychological aspects will prevent the emergence of harmful behaviors in society in the future (BAKTIR, Çetiner Selma, Velayet Hukuku, Ankara 2000 p.33).
In the concrete case, the plaintiff mother, who has the right to custody, claimed that the child was disturbed by the difference in surnames and wanted to bear the same surname as the mother. The plaintiff’s witnesses also stated that the defendant father was indifferent to his child, that the father had not come to see his child for about three years, that he was uncomfortable not having the same surname as the mother with whom the child lived, that he constantly expressed his desire to have the same surname as the mother, and that when he introduced himself, he expressed his surname as “Karakol”, which is the mother’s Surname. While it has not been suggested that changing the child’s surname to the mother’s would negatively impact the child’s psychological development in the child’s best interest, the witness testimonies just described suggest that changing the child’s surname to the mother’s may be in the child’s best interest.
In light of all these explanations; Considering that the request of the mother, to whom custody rights were granted, to change the child’s surname to her own surname relates to the exercise of powers within the scope of custody rights. The right to determine the child’s surname is also included within the scope of custody rights. Denying a woman the right to determine the child’s surname, which is granted to men in the same legal position, would constitute gender-based discrimination in the exercise of custody rights. There is no legal provision preventing a child born in marriage from changing the family surname of the mother, to whom custody rights were granted, to her own surname upon the dissolution of the marriage. In the present case, the change in question is not contrary to the child’s best interests, and the child’s personal situation will not change by changing their surname (TCC Art. 27), taking into account the Constitutional Court’s decisions regarding rights violations in similar cases, the case should have been accepted. However, a written judgment was not appropriate, and the judgment should have been overturned.
Result: For the reason explained above, it was UNANIMOUSLY decided that the decision of the 2nd Civil Chamber of the Izmir Regional Court of Justice dated 14.11.2017 be REVERSED, the decision of the 8th Family Court of Izmir, the first instance court, dated 18.07.2017, numbered 2017/11 and 2017/523, be REVERSED, the file be sent to the aforementioned first instance court, a copy of the decision be sent to the aforementioned civil chamber of the regional court of justice, and the appeal pre-filing fee be returned to the person who paid it upon request. 09.04.2018