Custody Rights for Foreigners

In the separation process of parents from different countries, the most sensitive issue is undoubtedly the custody of their children. Facing an unfamiliar legal system in a foreign country can make this process even more alarming. In this article, we explain the rights you have as a foreign parent in custody cases in Turkey and the fundamental legal principles you need to know.

There is a single principle that absolutely guides all custody cases in Turkey: "the best interests of the child." This is not just a recommendation but a binding legal order stemming from both the Turkish Civil Code and international conventions to which Turkey is a party. The most important consequence of this principle is that it is strictly forbidden for courts to make any discrimination based on the parents' nationalities when making a decision. Before Turkish courts, a foreign parent is legally on an equal footing with a Turkish parent, and the court's sole focus is the highest protection of the child's physical, emotional, and social well-being.

Which Country's Law Applies to Custody?

In an international custody case, the first question the court must answer before making a decision is which country's law will apply. The answer to this question is determined by the Code on Private International Law and Procedural Law (MÖHUK) and generally follows a three-step hierarchy:

• Common National Law: If both the mother and father are citizens of the same foreign state, their common national law applies.
• Common Habitual Residence Law: If the parents have different nationalities, the law of the country where they live together applies.
• Turkish Law: If neither of the above conditions can be met, the Turkish court will apply Turkish law directly.

Is "Joint Custody" Possible in Turkey?

The traditional approach of the Turkish Civil Code is to grant custody to a single parent after a divorce. However, in recent years, there has been a significant shift in the approach of the Court of Cassation, especially in cases with an international element. The Court of Cassation has ruled that a joint custody arrangement agreed upon by foreign parents is not contrary to Turkish public order. This development indicates that Turkish courts are now more open to joint custody, provided that the parents agree and the arrangement serves the child's interests.

Validity of a Foreign Court Decision in Turkey

For a custody decision obtained from a court abroad to be valid in Turkey, a "recognition and enforcement" lawsuit must be filed in a Turkish Family Court. This lawsuit gives the foreign court decision legal identity in Turkey and makes it enforceable. For this lawsuit, it is mandatory to submit the finalized original of the foreign court decision and a sworn translator's certified copy bearing an apostille stamp to the court.

International Child Abduction and the Hague Convention

Turkey is a party to the Hague Convention, which aims to ensure the immediate return of a child who has been wrongfully removed to another country in violation of custody rights, to their habitual residence. A return case filed under this convention is not a standard custody case; its purpose is not to determine who is the better parent, but to identify the correct court to make the custody decision. Therefore, in such cases, arguments must focus on the very limited exceptions specified in the convention, such as if the return of the child would expose them to physical or psychological harm.