Joint custody is a type of custody that ensures the children’s rights are equally shared by both parents in a divorce or separation case. In this type of custody, parents make decisions regarding the children together and share responsibilities. In joint custody, children live with one parent and establish a personal relationship with the other parent for certain periods of time. In Turkish law, TMK 336, to whom the custody of the child belongs in case of divorce. in the article “As long as the marriage continues, the mother and father use custody together. If the joint life has been terminated or a separation has taken place, the judge may grant custody to one of the spouses.” it is regulated by the decree. In accordance with the provision of this article, in the divorce case, the court also decides which spouse will have custody of the joint child under the age of 18 for the spouses whom it has decided to divorce. As per Article 182/II of the Turkish Civil Code, the practice that custody should be given to one of the spouses in case of divorce has started to be applied as a result of the conflict between Protocol No. 11 and Protocol No. 7 Additional to the Convention on the Protection of Various Human Rights and Fundamental Freedoms Oct.
October Dec.5 “Equality Between Spouses” of Protocol No. 11 and Protocol No. 7 Additional to the Convention on the Protection of Various Human Rights and Fundamental Freedoms. in the article “Spouses are equal in terms of marriage, during the marriage and, if the marriage Decays, in terms of rights and responsibilities that have the nature of private law in their relations with themselves and their children. This article does not prevent states from taking the necessary measures for the benefit of children.” with the arrangement in the form of joint custody is provided for the joint child in case of divorce. Therefore, states parties to this convention are required to act in accordance with its provisions.
In accordance with Article 90 of the Constitution, “International treaties that have been brought into force in accordance with procedure have the force of law.” In case of conflicts arising due to differing provisions in laws and international treaties concerning fundamental rights and freedoms that have entered into force in accordance with procedure, the provisions of the international treaty shall prevail.” According to this article’s provision, when the best interests of the child are also taken into account, the right to custody, which encompasses the child’s care and education, is also a fundamental right and freedom. In this context, the provisions of the international convention regulating the right to custody will be applied before the right to custody regulated by the TMK and will be taken as a basis before them. Therefore, although joint custody is not regulated in the Turkish legal system, it will be in accordance with the law for the courts to make a joint custody decision in divorce cases, since it is accepted by international conventions. In fact, the court should first grant joint custody when this is required in the child’s best interests.
In certain articles of the United Nations Convention on the Rights of the Child, it is stipulated that joint custody may be granted by emphasizing the best interests of the child. For example, Article 3 of the Convention states: in the article “In all activities carried out by public or private social welfare organizations, courts, administrative authorities or legislative bodies that concern children, the benefit of the child is the main consideration.” by this means, the superior benefit of the child has been kept above everything else. Also 7. in the article “The child shall be registered in the population register immediately after birth and shall have the right to a name from birth, the right to acquire a citizenship and, to the extent possible, the right to know his parents and to be cared for by them.” with its provision, the importance of establishing a common relationship with parents was emphasized. Today, one of the difficulties caused by sole custody is that the child cannot adequately get to know the parent who does not have custody and cannot establish a sufficient personal relationship with that parent.
Custody generally covers the moral, religious, social, cultural education of the child and undertaking the basic needs and health-related care. In cases where joint custody is involved, the obligation of education and care will be used jointly for the mother and father. Parents and parents 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 a joint decision on everything that concerns the child. But when making a joint custody decision, the court determines the amount of financial contributions of parents to expenses due to education and maintenance obligations. In addition, issues such as who the child will stay with and at what times a personal relationship with the child will be established are also determined by the court.
Since the issue of joint custody is not regulated by a national legislation, it is not a common case law for courts to issue a joint custody decision. Example of the first joint custody decision, Izmir 4. It was granted by the Family Court on 27.05.2009. After this decision, the concept of joint custody began to enter our legal field and was evaluated within the scope of the superior benefit of the child. Later, with some decisions of the Court of Cassation, case law on joint custody has started to be formed. With the expansion of the case law of the Court of Cassation, joint custody will be applied more widely and more joint custody decisions will be made by the courts.
Supreme Court 2. Law Department dated 20.02.2017, 2016/15771 and Decision number 2017/1737 against the claim that the provision of joint custody in the dispute before it is contrary to Turkish public order, “… according to the explanations related to our domestic law and the concept of public order, it is impossible to say that the arrangement of “joint custody” is “clearly” contrary to Turkish public order or violates the basic structure and fundamental interests of Turkish society …” by deciding that the provision of joint custody in terms of Turkish law and public order it has been clearly emphasized that it does not constitute a violation.