Family Law: Child Custody Cases and the Best Interests of the Child in Antalya

Antalya Lawyer for Foreigners | Rafet Aslan Law Firm April 11, 2026

THE PRINCIPLE OF THE BEST INTERESTS OF THE CHILD IN LIGHT OF THE TURKISH CIVIL CODE AND INTERNATIONAL CONVENTIONS

Custody cases are among the most sensitive types of disputes in family law, with profound social consequences. The fundamental criterion underlying these cases, which must be observed by the judge at every stage of the proceedings, is the "best interests of the child." In the Turkish legal system, custody is not merely a right granted to parents but a comprehensive set of duties and responsibilities imposed on them for the protection, education, and development of the child. In this context, custody proceedings are structured entirely around the future well-being of the child, transcending the personal conflicts of the parties.

The Legal Nature of Custody Rights and the Relationship with Public Order

In our legal system, custody is an institution related to public order (ordre public). Due to this nature, the "principle of ex officio investigation" (re'sen araştırma ilkesi) applies to processes regarding the arrangement, modification, or removal of custody, rather than the "principle of preparation by the parties." The Family Court judge is obliged to conduct any investigation deemed necessary to protect the child's interests, regardless of the evidence presented by the parties. This is the most fundamental feature distinguishing custody cases from classic private law cases.

The 2nd Civil Chamber of the Court of Cassation, in its decision (E. 2014/4755, K. 2014/14882), explicitly emphasized:

"Custody is related to public order."

This determination by the Court of Cassation demonstrates that courts cannot settle for merely evaluating the requests of the parents during a custody case; they must personally supervise the child's living conditions, educational status, and psychological health. The quality of being related to public order grants the judge broad discretionary power and necessitates that even the smallest development occurring during the trial affects the decision. The same sensitivity applies to lawsuits for the modification of custody; if changing circumstances jeopardize the child's current situation under custody, judicial intervention is inevitable.

As stated in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2021/687, K. 2021/2814):

"It is stated that custody is related to public order and the principle of ex officio investigation applies, and even developments occurring during the trial must be taken into consideration."

According to this jurisprudence, new facts emerging during the trial must be taken as a basis for the judgment as much as the conditions existing on the date the lawsuit was filed. For example, if there is a radical change in the lifestyle of one of the parents that could negatively affect the child's development or if there are failures in the child's educational life while a custody case is ongoing, the court must directly take these into account. In requests for joint custody, the capacity of parents to cooperate is meticulously examined, acting again with this consideration of public order.

Fundamental Principles within the Framework of the UN Convention on the Rights of the Child

The principle of the best interests of the child is not a concept limited to our national legislation; it is also guaranteed by international conventions that rank above domestic law pursuant to Article 90 of the Constitution. The most fundamental text in this field is the United Nations Convention on the Rights of the Child. Article 3 of the Convention establishes as a mandatory provision that "the best interests of the child shall be a primary consideration" in all actions concerning children.

The 2nd Civil Chamber of the Court of Cassation refers to these international foundations in its decision (E. 2012/14437, K. 2013/1062) as follows:

"The fundamental principle to be considered is the 'best interests' of the child (UN Convention on the Rights of the Child Art. 3; European Convention on the Exercise of Children's Rights Art. 1; TCC Art. 339/1, 343/1, 346/1; Child Protection Law Art. 4/b)."

This legal framework mandates that the subjective desires of the parents must remain secondary to the objective needs of the child in custody cases. When making a decision, courts should seek an answer to the question "What is the most suitable environment for the healthy development of the child?" rather than "What does the mother want?" or "What does the father request?" In this context, the faults of the parents in the divorce process (e.g., infidelity or their share in incompatibility) should not play a decisive role in the custody decision unless these faults directly affect their parenting abilities and harm the best interests of the child.

The same principle was reiterated in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2017/7222, K. 2018/2808). The decision emphasized the priority of the child's physical and mental development and stated that international conventions should be blended with domestic law. This approach shows that a "child-centered" judicial model has been adopted in Turkish family law practice. Especially in the implementation of modern legal institutions such as joint custody, the child's right to establish a healthy bond with both parents is evaluated as part of the principle of best interests.

Priority of the Child's Physical, Intellectual, and Spiritual Development

The concept of the best interests of the child is not an empty legal term but a whole that must be filled with concrete criteria. Foremost among these criteria are meeting the child's physical health needs, maintaining an uninterrupted educational life, and preserving emotional stability. During the custody case process, the court must determine with which parent the child will exhibit better social, economic, and cultural development.

The 2nd Civil Chamber of the Court of Cassation defined the child's interest in its decision (E. 2016/6669, K. 2016/7604) as follows:

"The interest of the child is the best possible development of the child in physical, intellectual, and moral terms, and the provision of social, economic, and cultural conditions for the realization of such development."

This definition shows that courts cannot make a decision by looking only at material means (income level, size of the house, etc.); they must also measure the quality of the emotional bond the parent establishes with the child and the contribution they will offer to the child's moral development. For example, preferring a parent who personally attends to the child and is sensitive to their psychological needs, despite having more modest means, over a parent with a very high income who does not spend time with the child and leaves their care entirely to support staff, is more in line with the principle of best interests.

Factors threatening the child's spiritual development directly affect the outcome of the custody case. Situations such as a parent's substance abuse, tendency toward violence, or neglect of the child constitute an obstacle to granting or continuing custody rights. The decision of the 2nd Civil Chamber of the Court of Cassation (E. 2018/4740, K. 2018/10168) serves as a precedent in this regard:

"The father, to whom the right of custody was left, stated that he had been using cannabis for 22 years... his opinion, which is not suitable for the interests of the children, cannot be respected... while determining the best interests of the child, the aim of ensuring their physical, intellectual, spiritual, moral, and social development must be observed."

As seen in this decision, even if the children state that they want to stay with their father, the court may decide contrary to the child's statement if there is a situation that jeopardizes the child's intellectual and moral development, such as the father's drug use. The principle of best interests aims to protect the child's long-term safety and well-being rather than their momentary wishes.

Another critical element in determining custody is the preservation of the child's current order. According to this approach, called the "stability principle" in Turkish legal practice, if the child is already being raised healthily with one parent and there is no harm in continuing this situation, changing custody may negatively affect the child's psychology. As stated in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2012/14094, K. 2013/6117):

"If the child is given to the father, the current order will change and the child will be negatively affected by this situation... the best interest of the child in the custody arrangement is to continue remaining under the custody of the mother."

This jurisprudence proves how decisive social investigation reports and pedagogical opinions in custody case files are. In reports prepared by experts, the child's happiness in their current living space, school success, and harmony with their environment are evaluated within the scope of "best interests." In requests for the modification of custody, it must be proven with concrete evidence that the current situation has become unbearable for the child or hinders their development. Otherwise, changes in the lives of parents alone (remarriage, moving cities, etc.) are not considered sufficient for custody to change hands.

In conclusion, the Turkish Civil Code and the international conventions to which we are a party have structured custody not as a property right of the parents but as a tool to protect the rights of the child. When making a decision in a custody case or a case for the modification of custody, family courts must evaluate the child's age, gender, educational needs, the parents' care capacity, and the child's psychological integrity as a whole. Obtaining professional legal consultancy in this process is of great importance both for accurately conveying the child's best interests to the court and for preventing procedural errors. Custody processes are a multidisciplinary field that necessitates blending technical legal knowledge with the scientific data of pedagogues and psychologists.

CRITICAL CRITERIA IN DETERMINING CUSTODY: THE SIBLING BOND AND THE CHILD'S OPINION

Custody cases constitute one of the most sensitive areas of family law, woven with technical details. When making this decision that will shape a child's future, courts base their decisions on multidimensional criteria that will protect the child's psychological integrity, not just the parents' economic power or social status. In light of the Turkish Civil Code and established Court of Cassation jurisprudence, there are two fundamental pillars where the concept of the "best interests of the child" is embodied in determining custody: the principle of not separating siblings and the statement of the child of the age of discretion regarding their own future. These criteria are legal armors that limit the court's discretionary power in custody case processes and guarantee the child's spiritual development.

The Principle of Not Separating Siblings and the Protection of the Sibling Bond

Our legal system does not view the family as merely a relationship between parent and child; it accepts that the bond between siblings also plays a vital role in the child's identity construction and emotional security. In a custody case or a case for the modification of custody, when multiple common children are involved, one of the first things courts will examine is whether the siblings will stay under the same roof. The "sibling bond" is the strongest social support a child can hold onto within a broken family structure. Since severing this bond carries the risk of creating secondary trauma in the child, the Court of Cassation maintains a very strict stance on this issue.

This principle was crystallized in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2013/16141, K. 2014/2419) as follows:

"If there is more than one child subject to custody, custody must be given to the same parent for the development of the sibling bond unless their interests require otherwise."

This jurisprudence serves as a clear instruction to Family Court judges. Unless the best interests of the children (e.g., extreme situations such as one sibling inflicting violence on the other or one parent having the capacity to care for only one child) necessitate a very serious separation, siblings cannot be separated from each other. In a concrete case, the fact that the siblings' ages are close to each other or that they have different developmental needs does not eliminate their right to grow up together. The development of the sibling bond forms the cornerstone of the social relationships and emotional intelligence the child will establish in the future. The court is obliged to choose the common parent with whom both children can be best cared for, rather than sharing custody between siblings.

The necessity of keeping siblings together is not just an emotional preference but also a psycho-social necessity. In the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2012/23082, K. 2013/15587), the decisive role of expert pedagogical reports on this issue and the importance of the sibling bond were emphasized:

"...the environment where the father, who holds the right of custody of the common child O..E.., lives is insufficient in meeting physical and biological needs, the existence of the sibling living with the mother and the fact that siblings whose ages are close to each other being together is important for the child's psycho-social development..."

As can be understood from this decision, the fact that one of the siblings is already living with one parent creates a "center of attraction" in determining the custody of the other sibling. If a child is maintaining a healthy development with their mother, a decision for the other child to stay with the father may be found contrary to the law as it would damage the sibling bond. In social investigation reports prepared during the custody case process, experts must analyze the communication between siblings, their devotion to each other, and the possible destruction that would occur in case of separation in detail. The separation of siblings is possible only and only if the "best interests of the child" make it inevitable and in the presence of concrete and proven evidence.

The Statement of the Child of the Age of Discretion and Its Effect on the Court Decision

In modern family law, the child is not a passive object of the custody case but an active subject with rights. Pursuant to the UN Convention on the Rights of the Child and the European Convention on the Exercise of Children's Rights, it is a constitutional necessity to obtain the child's opinion in all cases concerning them and to give importance to this opinion according to their age and degree of maturity. In Turkish judicial practice, children aged 8 and over are generally accepted to be at the "age of discretion," but the child's cognitive and emotional maturity is evaluated by the court in each concrete case.

In the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2014/4755, K. 2014/14882), it was explicitly stated that ignoring the preference of the child of the age of discretion is a ground for reversal:

"The common child Cenker stated in the hearing dated 28.2.2013 that he wanted to stay with his mother... the criterion of not separating siblings for the child's request and the development of sibling bonds [must be observed]."

This jurisprudence shows that the child's statement will directly affect the outcome of the custody case. The judge tries to understand with which parent the child wants to stay and why, by hearing the child personally or obtaining their views through expert pedagogues. However, the child's statement is not an absolute command for the court; it must pass through the "best interests" filter. If the child's preference is the result of manipulation by one of the parents (parental alienation syndrome) or if they prefer a lifestyle that would jeopardize the child's safety, the court may decide contrary to the child's view.

What is essential here is the principle of the "hypothetical thought of the child." This concept was explained in depth in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2016/4701, K. 2017/10597):

"...if the child were an adult, what kind of decision would they have made for their own interest in an event concerning them, the person in the position of the decision-making authority for the child must also make a decision in the same direction; that is, the hypothetical thought of the child will be taken as a basis."

This approach aims to protect the child's long-term interests rather than their momentary whims. For example, a child may want to stay with a parent who does not discipline them or follow their school responsibilities. However, when the judge evaluates this situation with the child's future adult self, they may choose the parent who is more disciplined and attentive for the child's education and moral development. Judgments established without obtaining the opinion of the child of the age of discretion in cases for the modification of custody are reversed by higher courts as they constitute a violation of procedure and law. The echoing of the child's voice in the courtroom is an indispensable element for the establishment of justice.

The Effect of Parents' Social and Moral Status on Custody

During a custody case, parents' lifestyles, habits, and moral value judgments frequently become a subject of discussion. However, in Turkish law, a parent being "at fault" (e.g., infidelity causing divorce) does not automatically mean they lose the right of custody. The point the court focuses on is whether this situation of the parent directly affects the child's physical, intellectual, and moral development. The parent's private life remains secondary as a custody criterion as long as it does not harm the child's best interests.

On the other hand, situations threatening the child's safety and health are accepted as "red lines." The decision of the 2nd Civil Chamber of the Court of Cassation (E. 2018/4740, K. 2018/10168) reveals the effect of the parent's harmful habits on custody with striking clarity:

As seen in this decision, even if the children state that they want to stay with their father, if the father has a situation that makes the child's life safety and healthy development impossible, such as drug use, the court rejects the child's statement as "contrary to the best interests." Custody is not a reward for the parent but a duty given for the protection of the child. It is a requirement that the social and moral status of the person who will perform this duty be at a level that the child can model and trust.

On the other hand, contrary to what is wrongly known in society, a parent's remarriage or living with someone out of wedlock is not a reason for the modification of custody on its own. As stated in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2013/6296, K. 2013/26140):

"The fact that the defendant mother lives with another man without marriage does not necessitate the removal of custody or not granting custody to her unless it is proven that the mother severely neglected or abused her custody duty."

This jurisprudence reminds us that focus should be on the quality of the child's care rather than "moral policing" in custody case processes. If the mother or father does not disrupt the child's education in the new life order, continues to show love and affection, and meets the child's physical needs, the choices in their private life do not constitute a sufficient legal justification for custody to change hands. What is critical in determining custody is whether the social and moral position held by the parent creates a "safe harbor" for the child.

In conclusion, custody cases are a delicate balance established between the sanctity of the sibling bond, the free will of the child of the age of discretion, and the living standards of the parent suitable for the child's development. In this process, courts must make a decision by thinking not only of today but also of the child's adulthood decades later. Obtaining professional legal support in custody cases or processes for the modification of custody is of vital importance for the correct adaptation of these complex criteria to the concrete case and for the protection of the child's best interests at the highest level. Every child is special, and every custody file is a separate door opening to that child's spiritual world; when entering through this door, the guidance of the law and the scientific basis of expert opinions are the sole guarantee of justice.

LAWSUITS FOR THE MODIFICATION OF CUSTODY AND LEGAL ANALYSIS OF PROOF CONDITIONS

The right of custody is a dynamic legal institution that, by its nature, does not constitute a final judgment and is always subject to supervision and modification in parallel with the child's physical, intellectual, and spiritual development. Within the framework of the Turkish Civil Code, after a custody arrangement is made, a lawsuit for the modification of custody comes to the fore in case the conditions change substantially and continuously. These lawsuits are not just simple disputes based on the requests of parents; they are sensitive processes closely concerning public order where the court applies the principle of ex officio investigation. The process of modifying custody requires proving with concrete evidence that maintaining the current situation has become contrary to the child's best interests. Although it is essential not to separate the child from the environment they are accustomed to due to the "stability principle" in our legal system, judicial intervention becomes inevitable at the point where this environment jeopardizes the child's development.

Concrete Changes in Circumstances Required for the Modification of Custody

Article 183 of the Turkish Civil Code, which constitutes the legal basis for the request for modification of custody, has listed situations such as the mother or father marrying someone else, going elsewhere, dying, or being unable to properly fulfill the custody duty by way of example. However, these cases listed in the law are not exhaustive (numerus clausus); any substantial change affecting the child's best interests can be the subject of the lawsuit. The most critical point to be considered here is that the change must be "concrete" and "directly affecting the child's interest." In Court of Cassation practices, it is emphasized that a change in the life of the parent alone (e.g., just moving cities or just remarrying) is not considered sufficient for the modification of custody, and it must be proven how this change disrupted the care and supervision of the child.

In lawsuits for the modification of custody, courts subject the conditions on the date the lawsuit was filed and the conditions on the date custody was first granted to a comparative analysis. If the current arrangement does not hinder the child's physical, intellectual, and moral development, custody does not change hands merely with the promise that better opportunities will be offered. In the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2014/6992, K. 2014/13439), this matter was expressed as follows:

"There is no serious and convincing evidence that the defendant mother abused or neglected her custody duty."

This jurisprudence reveals the necessity of "serious and convincing concrete evidence" to the extent of convincing the court, beyond abstract allegations and guesses, for a custody modification. As can be understood from the decision, courts are not inclined to disrupt the current status quo unless clear data is presented that the parent holding the right of custody neglected their duty. In a concrete case, elements such as the parent establishing a new life or a job change are rejected if they do not negatively affect the child's educational life, health status, or psychological integrity. At this point, the burden of proof is on the party claiming that the situation has changed and that this change is harmful to the child. However, pursuant to the public order principle, the judge is obliged to personally conduct any investigation deemed necessary to protect the child's interest, not being satisfied with the evidence presented by the parties.

Discretion of Evidence in Neglect or Abuse of Custody Duty

Neglect or abuse of custody duty are the most common and hardest-to-prove allegations in lawsuits for the modification of custody. Neglect can manifest as the failure to meet the child's basic needs such as nutrition, shelter, health, and education, or the severing of the emotional bond. Abuse covers severe situations such as the application of physical or psychological violence on the child, the unfair prevention of the child from meeting with the other parent, or the child being dragged into criminal environments. In the presence of such allegations, the court must act extremely meticulously in the discretion of evidence. This is because the risk of personal hostilities between parents being carried out through the child is always present.

The Court of Cassation attaches great importance to with whom the parent performing the custody duty actually provides the child's care and the child's happiness in this process. For example, the fact that the grandmother or grandfather takes care of the child due to the custody-holding parent's work intensity is not evaluated as neglect on its own. As stated in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2012/14094, K. 2013/6117):

"From the collected evidence, it is understood that the maternal grandmother and grandfather take care of the child during the week due to the defendant's work, but the mother did not sever her bond with the child, she attends to the child in the evenings and on weekends, and there is insufficient evidence regarding the neglect of the custody duty."

This decision shows how vital the evaluation of evidence is in custody processes. In the decision, the fact that the mother did not sever her bond with the child and that the child's basic care was carried out healthily, even with the support of family elders, was considered sufficient for the rejection of the request for modification of custody. The court here placed the principle of "preservation of the child's current order" ahead of the father's claim that he could offer better care. While evaluating evidence in a custody case, focus is on the concrete effects of the parents' lifestyles on the child rather than the lifestyles themselves. If the child continues their development as a healthy, happy individual with good school success, the parent's working hours or social life do not constitute a justified reason for custody to change hands.

On the other hand, severe personal faults of the parent, such as drug use, are accepted as elements directly threatening the child's best interests. In the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2018/4740, K. 2018/10168), it was emphasized that custody should be given to the mother despite the children's wish to stay with the father, upon the father's statement that he used cannabis:

"The father, to whom the right of custody was left, stated that he had been using cannabis for 22 years... his opinion, which is not suitable for the interests of the children, cannot be respected."

This jurisprudence determines the limits of the discretion of evidence in custody cases. Although the child's statement is important, if this statement supports a situation that jeopardizes the child's physical and mental health (such as the parent's drug use), the court may decide contrary to the child's view. Here, the concept of "best interest" refers to the establishment of a safe environment that will guarantee the child's future healthy development, rather than their momentary wish.

The Role of Social Investigation Reports and Pedagogical Opinions in the Decision Process

In lawsuits for the modification of custody, the judge must seek help from experts regarding the "psychological and social status of the child," which cannot be solved with legal knowledge. Pursuant to the Law No. 4787 on the Establishment, Duties, and Trial Procedures of Family Courts, the expert committee consisting of a psychologist, pedagogue, and social worker within the court prepares a "Social Investigation Report" (SIR) by examining the housing conditions, economic status, social environments of the parties, and their interactions with the child on-site. These reports are the most important basis for the judge when making a decision; however, the content of the report must also be suitable for supervision, scientific, and based on concrete data.

The Court of Cassation reverses the court decision if expert reports are superficial or contradictory. This sensitivity was clearly put forward in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2016/14064, K. 2016/16267):

"Since the social investigation report regarding custody organized by the psychologist counselor and guidance teacher expert was not clear enough to lead the court to a definitive conviction regarding the custody of the children, it was not found sufficient for the establishment of a judgment."

As can be understood from this decision, it is not enough for the social investigation report to just state an opinion; it must be of a depth and clarity that will arouse a "definitive conviction" in the court. If the report does not meet the allegations of the parties or does not fully reflect the child's spiritual state, the Court of Cassation requests the court to obtain an additional report by forming a new committee. Experts must meet with the child personally, not just with the parents, and identify the real tendencies in the child's inner world. Especially the views of children of the age of discretion (usually 8 years and over) form the cornerstone of these reports.

The decisive role of expert reports ensures that the subjective statements of parents pass through an objective filter. The importance of expert opinion was emphasized in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2012/3253, K. 2012/5122) as follows:

"In the expert report obtained, it was reported that the best interest of the child is to be left to the custody of the father... Although the court decided to give custody to the mother on the grounds that the child was not allowed to meet with the defendant-plaintiff mother; this situation is not legally established."

This jurisprudence shows that it is contrary to the law for the court to ignore the scientific findings in the expert report and make a custody decision based on unproven allegations (such as the allegation of not allowing meetings). Social investigation reports measure with scientific methods with which parent the child will show a healthier development, the parents' care capacities, and the child's happiness in their current order. Therefore, it is of vital importance for a party who wants to succeed in a lawsuit for the modification of custody or to protect the current custody to establish correct and honest communication during the expert investigation process and to exhibit an attitude focused on the child's best interests.

Custody cases are processes where each file is evaluated within its own special conditions, having human and psychological depth beyond general rules. Every piece of evidence presented, every expert opinion obtained, and every sentence established by the child in these processes is a building block in the manifestation of justice. Courts act with the responsibility of building the child's future peace rather than the parents' struggle for justification, in light of the Turkish Civil Code and international conventions. The weight of proof conditions and the meticulous examination of expert reports stem from the fact that the right of custody is not a "reward" or "punishment" but a "public duty" aimed at increasing the child's quality of life. Therefore, when filing a lawsuit for the modification of custody or defending against this lawsuit, acting with a professional legal perspective and structuring evidence around the "best interests of the child" will be the most correct approach for the safety of the process.

JOINT CUSTODY IN CURRENT JUDICIAL PRACTICE AND THE IMPORTANCE OF PROFESSIONAL LEGAL CONSULTANCY

Custody law is one of the most dynamic areas of the Turkish Civil Code, most open to social changes. While the rule of granting custody to one of the spouses after divorce prevailed in traditional judicial practice, today the concept of "joint custody" has taken a central position with the integration of international conventions into domestic law. Custody cases are not just a legal procedure but a vital process that directly determines the child's future psychological, social, and economic welfare. In this process, how courts interpret the "best interests of the child" principle and how professional legal support shapes this interpretation determines the fate of the case.

Joint Custody Practice and Conditions in Turkish Law

Joint custody has found a field of application in the Turkish legal system with international texts such as Protocol No. 11 to the European Convention on Human Rights and the Convention on the Rights of the Child being considered above domestic law pursuant to Article 90 of the Constitution. Joint custody envisages that divorced parents continue to make important decisions regarding the child (such as education, health, residence) together. However, the implementation of this practice depends on the special conditions of each concrete case and the parents' capacity for cooperation.

In the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2016/4701, K. 2017/10597), how the child's interest should be embodied in the custody arrangement was expressed as follows:

"In the custody arrangement; in case of conflict between the child's and the mother's and father's interests, priority must be given to the child's interest. The interest of the child is the best possible development of the child in physical, intellectual, and moral terms, and the provision of social, economic, and cultural conditions for the realization of such development."

In the same decision, the following striking emphasis regarding the projection method the judge should use when making a decision is included:

"If the child were an adult, what kind of decision would they have made for their own interest in an event concerning them, the person in the position of the decision-making authority for the child must also make a decision in the same direction; that is, the hypothetical thought of the child will be taken as a basis."

This jurisprudence reveals that in joint custody requests, the court should focus on how this decision will take place in the child's future "hypothetical thought," not just on the parents' wish. If there is excessive conflict between parents and this situation hinders the child's development, joint custody may be found contrary to the child's best interests. At this point, the quality of the evidence presented during the custody case process is critical in terms of proving whether joint custody is sustainable.

Strategic Process Management and Expert Lawyer Support in Custody Cases

Custody processes require strategic management as well as technical legal knowledge. Courts do not settle for only the statements of the parties when making a custody decision; they request comprehensive reports from experts within their body pursuant to Law No. 4787. These reports are called the social investigation process and form the cornerstone of the case.

In the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2016/14064, K. 2016/16267), it was stated that the failure to conduct these investigations properly is a ground for reversal:

"Pursuant to Article 5 of Law No. 4787... it is ordered to obtain reports from experts consisting of a psychologist, pedagogue, and social worker within the body, and to investigate the housing, income, social, and psychological status of the parties."

In the same decision, the inadequacy of the report obtained by the court was criticized with these words:

This jurisprudence shows that a lawyer conducting a custody case must meticulously examine the expert reports presented to the court and, if the report is incomplete or biased, object based on scientific criteria. Professional legal consultancy is not just writing a petition but also managing the communication to be established with experts during the social investigation process and ensuring that the child's living conditions are reflected to the court in the most accurate way. In requests for the modification of custody or joint custody, it is mandatory to support the parent's care capacity, economic power, and emotional bond with the child with concrete evidence for the case to succeed.

Legal Measures Against Abuse of Custody Rights

The right of custody is not a privilege granted to the parent but a public duty imposed for the purpose of protecting the child. Neglect or abuse of this duty constitutes the strongest legal grounds for a lawsuit for the modification of custody. In judicial practice, situations such as the parent's lifestyle, addictions, or unfairly alienating the child from the other parent are evaluated within the scope of abuse of custody rights.

The decision of the 2nd Civil Chamber of the Court of Cassation (E. 2018/4740, K. 2018/10168) clearly reveals the effect of the parent's personal habits on custody:

In the continuation of the decision, the quality of custody being related to public order and the court's obligation of ex officio investigation were emphasized:

"It was ruled that custody is related to public order and the principle of ex officio investigation applies... while determining the best interests of the child, custody must be left to the mother by observing their physical, intellectual, spiritual, moral, and social development."

This decision shows how vital it is to prove situations (drug use, tendency toward violence, neglect, etc.) that constitute an obstacle to the parent performing their parenting duty during the custody case process. In lawsuits filed with a request for modification of custody, the fact that "conditions have changed" and that the current situation harms the child's "best interests" should be structured in light of these strict criteria of the Court of Cassation.

Again, in the decision of the 2nd Civil Chamber of the Court of Cassation (E. 2021/687, K. 2021/2814), it was stated that the court's incomplete investigation is a violation of rights:

"It is stated that custody is related to public order and the principle of ex officio investigation applies, and even developments occurring during the trial must be taken into consideration... Pursuant to Article 5 of Law No. 4787, it is mandatory to request a report from the psychologist, pedagogue, and social worker within the family court. The housing, income, social, and psychological status of the parties must be examined in the environment where they live."

In light of these jurisprudences, the support of an expert lawyer in custody processes is indispensable both for the protection of the child's rights and for the parent to base their justified case on scientific and legal foundations. Custody cases are not just an accounting of the past but the construction of the child's future. In this construction process, every piece of evidence, every expert opinion, and every judicial jurisprudence serves as a guide for the correct manifestation of justice.

Divorce Attorney’s Guide — Att. Rafet Aslan