For custody to be changed after the divorce decree is finalized, there must be significant changes in the circumstances of the child and the party to whom custody is granted. These substantial changes must also be permanent and impact the child’s development. The resulting change could be in the child’s situation or in the situation of the party to whom custody is granted. For example, if the party to whom custody is granted develops serious health problems and becomes unable to provide the necessary care for the child, if the child is subjected to violence, or if the child is forced to work.
The party to whom custody is granted after divorce has the responsibility for the care, education, training, protection, representation, and rights, duties, powers, and obligations regarding the children’s persons and property. The rights and duties of the party to whom custody is granted pertain to the children’s persons include, in particular, caring for, watching over, providing for, and ensuring their upbringing and education. The party to whom custody is granted must fully fulfill all these obligations.
The primary requirement for the party filing a custody case is that the party with custody neglected the above-mentioned obligations and duties related to custody and acted against the best interests of the minor. The party filing a custody case and requesting that custody be granted must prove that the other party acted against the child’s best interests and failed to properly fulfill their parental obligations.
In cases involving change of custody, witness testimony is among the primary evidence. Any breach of parental obligations by the party granted custody can be proven with all types of legal evidence, especially witness testimony. Furthermore, the violation of the child’s interests by the party with custody can be proven through Social Investigation Reports prepared by social investigators. If concrete evidence cannot be proven that the party with custody failed to fulfill their parental obligations and acted against the best interests of the minor, the custody case will be dismissed.
In a custody case, if the court proves that the party with custody has violated their parental obligations, a change of custody will be ordered. The party requesting custody may also request an appropriate child support award along with custody. The amount of child support awarded is determined by considering the parties’ social and economic circumstances, as well as the child’s age and expenses.
In its decision dated January 22, 2014, with case number 2013/2-2085 and decision number 2014/30, the General Assembly of the Court of Cassation stated, “The dispute centers on whether it has been proven that the mother, who has custody, has abused her custody rights to such an extent that custody should be revoked or modified.”
As is known, pursuant to Articles 339-347 of the Turkish Civil Code (TCC) No. 4721, custody encompasses the care, education, training, and protection of children, as well as their duties to represent them. Custody also encompasses the rights, duties, powers, and obligations of parents regarding the persons and property of children under their custody. The rights and duties of parents regarding the persons of children are, in particular, to care for them, to watch over them, to provide for them, to ensure their upbringing and education. In this context, the education provided will enable the child to achieve the desired level of development.” It is the right and obligation to raise a child as an honest, morally sound, hardworking, and knowledgeable individual.
In the event of separation or divorce, the purpose of regulating custody is the minor’s future best interests. Accordingly, the primary objective in regulating custody is to protect the minor’s interests and secure their future. Custody is a matter of public order, and in this regard, the child’s best interests MUST be taken into consideration, rather than the wishes and statements of the parents.
It should be noted that unless the conditions for removing or changing custody are met, no interference with the parental duties of the parents can be made. As stated in the Supreme Court of Appeals Civil Assembly’s decision dated April 15, 1992, numbered 1992/2-140 E. 1992/248 K, in order to change custody established through divorce, the party to whom custody was granted, or in the case of the child subject to custody, must apply for divorce. Substantial changes are essential after the ruling, and the substantial change MUST be significant and permanent.… It should be noted, incidentally, that since the primary objective in regulating custody is to protect the minor’s best interests and secure their future, any event that hinders the child’s physical and mental development and is understood to be persistent must be determined by evaluating the magnitude of the danger and the potential for irreparable consequences. The best interests of the child must be considered first in determining and regulating custody.
In this context, factors related to the child’s specific circumstances, such as their gender, date of birth, educational status, school attendance, whether the requester is interested in the child’s education, their health, and who can provide treatment based on their health, MUST BE CONSIDERED.
It is unavoidable to consider the characteristics of the parents in determining and regulating custody. Therefore, the court must consider the child’s potential abandonment, neglect, abduction, voluntary abandonment, and manipulation, as well as whether the party requests custody, violence, infidelity, financial situation, occupation, living environment, misconduct, alcohol abuse, health, and erratic behavior.
In addition to the features described, the court must take care to ensure that the child’s accustomed environment is not changed as much as possible, and that siblings are not separated. It MUST BE EVALUATED whether there is serious and convincing evidence that staying with the party to whom custody will be given will hinder the child’s physical, intellectual and moral development, or whether the existence of an immediate danger can be proven, and whether the good financial situation alone does not require a change of custody.