According to Article 337/1 of the Turkish Civil Code, principally the mother has the custody of the child. If the parents are married, they share the custody of the child. In what circumstances can the father get the custody of the child in Turkey?

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Who Has The Custody Of The Child?

Principally the mother has the custody of the child or the parents share custody. The court, however, the court may decide to give the custody of the child to the father under certain circumstances. Depending on the situation, the judge may also decide to award custody neither to the mother nor to the father, but to appoint a guardian for the child.

If the parents of child file for divorce, the court will decide which parent to have the custody. According to the statistics on divorce cases, in 75% of divorce cases in Turkey, the mother has custody of the child.

When deciding on who to give the custody, the judge takes into consideration the best interests of the child, and physical and intellectual development rather than maternal and paternal feelings.

Can The Father Get The Custody Of The Child?

In case of minor children, the tendency of the courts is not to separate the child from the mother unless necessary. But, if the mother’s lifestyle has a negative impact on the physical and mental development of the child, the court may give the custody of the child to the father.

Generally the custody of the child is usually with the father rather than the mother in the following cases:

  • If the mother is a minor or mentally ill
  • If the mother is incapable of taking care of the child
  • Mother agrees to give custody to the father in an uncontested divorce lawsuit

In the event of an uncontested divorce, the spouses may agree whether the mother or father will have the custody of their children. This agreement between the spouses does not force the judge to leave the custody of the child to the party determined by the spouses.

This is because, since the custody of the child is a matter of public order, the judge may decide to leave the custody of the child to the other spouse or appoint a guardian for the child on its own discretion.

So, even if the parents agree, the court decides on custody by making the necessary research ex officio. Therefore, giving custody to the father through an uncontested divorce case is only possible only if the court explicitly approves it.

Custody Of The Child With Siblings

In the event that both spouses challenge custody in the divorce lawsuit, the court examines which spouse serves the best interest of the child and decides accordingly. If there is more than one child, the court applies the principle of non-separation of siblings. Accordingly, if there are two or more joint children, the court decides to give the custody of all children to the same parent.

This is especially the case when a child of 8 years of age and above, who is considered to be at the age of cognizance, wants to live with his/her father. Of course, there must be no obstacle in giving the custody of the younger child who is not at the age of cognizance to the father.

Custody Of The Child Who Lives With Father

During a divorce lawsuit, the court arranges the child’s personal relationship with the other spouse by giving temporary custody to one of the spouses.

If the court decides for the father to have the temporary custody, it may also decide to give the permanent custody in the end of the lawsuit to the father.

If Giving Custody To Mother Is Dangerous For The Child

When deciding which spouse to award custody to, the courts tend to decide that children who are in need of the mother’s affection and care should live with the mother. However, the court may award custody to the father if living with the mother would pose a danger to the child. For example, in cases where the mother leads an unchaste life, or the child has to live with drug addicts or alcoholic uncles, the court may award custody of the child to the father. Here, the court should consider that the father is fit to take custody.

What Happens With Custody If Mother Remarries?

If there is a fundamental change in the living conditions of the party who has custody after the divorce case, the other parent can file a new custody case and request the custody of the child. Remarriage of the mother is a fundamental change in the mother’s life. For this, father should claim the new marriage has an adverse effect on the child’s life.

As a matter of fact, the mere fact of marriage does not constitute a reason to change or revoke the custody of the child. However, if the best interests of the child requires, the court may, upon request, decide to change the custody or appoint a guardian for the child.

The mother’s moving to another place, just like her remarriage, is also considered as a fundamental change in her living conditions.

Custody If The Child Wants To Live With Father

An 8-year-old child is at the age of cognition. Therefore, it is obligatory to ask the child which parent he/she wants to live with during the divorce proceedings. Custody decisions taken without asking the child are reversed by the Court of Appeal due to incomplete examination.

Upon the 8-year-old child’s declaration that he/she wants to live with the father, the court decides to give the custody of the child to the father, if fit.