The concept of joint custody has become an increasingly prominent issue in Turkish family law over the past decade, driven by shifting social expectations, evolving judicial interpretations, and the influence of international human rights instruments ratified by Turkey. Unlike sole custody arrangements, in which one parent holds all decision-making authority regarding a child’s upbringing after divorce, joint custody allows both parents to continue sharing parental rights and responsibilities on an equal footing. Turkish law does not contain an explicit statutory provision establishing or defining joint custody, yet it has become a recognized and judicially applied arrangement through a combination of constitutional norms, treaty obligations, and landmark decisions by the Court of Cassation.
Understanding how joint custody operates within the Turkish legal system requires attention to both the statutory framework of the Turkish Civil Code and the international obligations that have shaped its judicial application. It also requires an appreciation of the practical conditions that courts examine before granting such an arrangement and the procedural distinctions between uncontested and contested divorce proceedings.
The Statutory Framework and the Absence of an Explicit Provision
Custody in Turkish law is regulated primarily in Articles 335 through 351 of the Turkish Civil Code No. 4721, with specific provisions addressing custody following divorce in Articles 182 and 183. Article 336 provides that during the continuance of the marriage, custody is exercised jointly by both parents. In the event of separation or when the spouses cease to cohabit, the judge may assign custody to one of the parties. Upon divorce, custody vests in the parent to whom the child is entrusted by the court.
Article 336 of the Turkish Civil Code: During the continuance of the marriage, the parents exercise custody together. If common life has come to an end or if separation has been ordered, the judge may assign custody to one of the spouses. Following divorce, custody belongs to the parent to whom the child is entrusted.
Article 182 of the Turkish Civil Code: Upon divorce, the court shall determine, in accordance with the best interests of the child, with which parent the children shall live, and shall regulate the personal relationship between the non-custodial parent and the children.
Notably, neither of these provisions explicitly prohibits joint custody following divorce, nor do they mandate that custody be assigned exclusively to one parent in all circumstances. The statutory silence on this point created a legal gap that was initially filled by courts defaulting to sole custody arrangements, but which has since been addressed through treaty-based reasoning and evolving case law.
The Role of Protocol No. 7 to the European Convention on Human Rights
The pivotal development in the legal recognition of joint custody in Turkey was the ratification of Protocol No. 7 to the European Convention on Human Rights. This Protocol was approved by the Turkish Grand National Assembly through Law No. 6684 and entered into force in Turkey on March 25, 2016, after which it became an integral part of domestic law pursuant to Article 90 of the Turkish Constitution.
Article 5 of Protocol No. 7 to the European Convention on Human Rights: Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.
This provision establishes the principle that spouses retain equal rights and responsibilities with respect to their children both during marriage and upon its dissolution. The phrase “in the event of its dissolution” was interpreted by the Court of Cassation as extending parental equality into the post-divorce period, meaning that an arrangement in which one parent is entirely deprived of custody rights must be justified by the child’s best interests rather than treated as an automatic default.
The Landmark Decisions of the Court of Cassation
The Court of Cassation’s Second Civil Chamber issued its first significant ruling recognizing joint custody on February 20, 2017, in a case involving two British nationals. In that decision, the court held that joint custody does not constitute a manifest violation of Turkish public order and does not contravene the fundamental structure or essential interests of Turkish society. The court grounded this conclusion in Protocol No. 7 and the principle of parental equality, clearing the way for both the recognition of foreign joint custody decisions and the application of joint custody in cases governed by Turkish law.
Subsequent decisions by the same chamber in 2017 reinforced this position, extending the reasoning beyond cases involving foreign nationals to domestic divorces more generally. By 2018 and in the years that followed, the court established that in contested divorce proceedings as well, a judge may order joint custody where the social investigation report is favorable, where the parents demonstrate a capacity for constructive communication, and where the arrangement serves the child’s best interests. This shift represented a departure from the previous approach under which sole custody was treated as virtually mandatory in contested cases.
Conditions for Granting Joint Custody
Turkish courts do not apply joint custody automatically upon parental request. The arrangement must be justified by a comprehensive assessment of the specific circumstances of the family, with the child’s best interests serving as the paramount criterion. This principle derives from both Article 182 of the Turkish Civil Code and Article 3 of the United Nations Convention on the Rights of the Child, to which Turkey is a party.
The most fundamental condition is that the parents must demonstrate a genuine capacity to cooperate in child-rearing decisions after the divorce. Courts consistently hold that joint custody is unsuitable where the parties are in severe conflict, where there is a history of domestic violence, or where the level of mutual hostility is such that any co-parenting arrangement would expose the child to ongoing tension. The practical rationale is clear: joint custody requires both parents to jointly approve major decisions concerning the child’s education, health, and residence, and this process cannot function if the parties are unable to communicate in a minimally constructive manner.
Geographic proximity is another factor that courts treat as practically significant. If the parents live close to one another, the logistical demands of a joint custody arrangement are easier to meet, and the child’s school schedule, social activities, and daily routine can be maintained with greater stability. Where one parent plans to relocate abroad or to a distant city, joint custody becomes considerably more difficult to implement in practice, and courts may decline to grant it on this basis.
The age and expressed preferences of the child are also taken into account. Under Article 12 of the UN Convention on the Rights of the Child, children who are capable of forming their own views are entitled to express those views in proceedings affecting them, with the weight given to those views being commensurate with their age and maturity. In Turkish court practice, children who are approximately eight years of age or older are generally considered old enough for their opinions to be solicited, either directly by the judge or through a psychologist or social worker. The child’s expressed preference is not determinative but constitutes an important element in the overall assessment.
Joint Custody in Uncontested Divorce Proceedings
Uncontested divorce proceedings provide the most natural setting for joint custody arrangements in Turkey. When both spouses agree to divorce and wish to retain joint custody of their children, they may include this arrangement in the divorce protocol that accompanies their application under Article 166, paragraph 3 of the Turkish Civil Code. The protocol must address not only the type of custody but also the practical modalities of how it will be exercised.
Specifically, the protocol must designate with which parent the child will primarily reside, since Turkish judicial practice consistently requires that even under a joint custody arrangement the child have a fixed primary address. This requirement reflects the practical needs of school enrollment, healthcare access, and administrative registration. The parent with whom the child does not primarily reside is then entitled to a personal contact schedule, specifying the days, hours, and holiday periods during which that parent will spend time with the child. The protocol must also address how decisions will be made in case the parents disagree, which is particularly important for matters such as school changes, medical procedures, and international travel.
The judge examining the protocol in an uncontested divorce is not bound by its terms where children are concerned. If the court determines that any aspect of the joint custody arrangement is contrary to the child’s best interests, it may propose modifications or, in exceptional circumstances, reject the joint custody arrangement entirely and assign sole custody to one parent. The judge’s power to deviate from the agreed protocol in matters affecting children reflects the public order character of custody law in Turkey.
Joint Custody in Contested Divorce Proceedings
In contested divorce proceedings, joint custody is a less common outcome but is not excluded as a possibility where the evidence supports it. The Family Court in this context relies heavily on social investigation reports prepared by court-appointed social workers, psychologists, and pedagogues. These experts conduct home visits, assess the living conditions of each parent, evaluate the emotional bonds between the child and each parent, and prepare written reports for the court. Where these reports conclude that both parents are capable of cooperative child-rearing and that joint custody would serve the child’s development, the court may order it even in the absence of parental agreement.
It bears emphasis, however, that the degree of conflict inherent in contested proceedings typically militates against joint custody. A case in which the parties are actively litigating fault-based grounds for divorce and disputing financial terms is not one in which courts readily presume the existence of the cooperative relationship that joint custody demands. In practice, contested cases more often result in sole custody with regulated personal contact for the non-custodial parent.
Child Support Under Joint Custody Arrangements
A common misconception is that joint custody eliminates the obligation to pay child support. Under Turkish law, the obligation of the non-resident parent to contribute to the costs of raising the child, known as iştirak nafakası under Article 182 of the Turkish Civil Code, continues to apply in joint custody arrangements. The amount is determined based on the financial capacity of the paying parent and the needs of the child, and it is not automatically set at zero simply because both parents share custody rights. Where there is a significant income disparity between the parents or where the child spends substantially more time with one parent, the court will generally order the other parent to pay a proportionate contribution.
Where the parents have roughly equal financial resources and the child spends approximately equal time with each, the court may determine that no periodic payment is necessary and that each parent bears the costs incurred during the time the child is in their care. However, this outcome requires a specific judicial determination and does not follow automatically from the designation of the arrangement as joint custody.
Modification of Joint Custody Arrangements
Joint custody, like any custody arrangement, is subject to modification under Article 183 of the Turkish Civil Code if the circumstances that justified the original decision change in a material way. Either parent may petition the Family Court to alter the custody arrangement, whether to convert joint custody into sole custody, to change the primary residence of the child, or to adjust the personal contact schedule.
Article 183 of the Turkish Civil Code: If the circumstances change after the divorce, the judge may, upon the application of the father, mother, or child, modify the provisions relating to the child.
The threshold for modification is the existence of a substantial and genuine change in the relevant circumstances, not merely a change in the preferences of one parent. Courts examine whether the original arrangement is no longer serving the child’s best interests, whether the other parent’s situation has deteriorated in a way that affects the child’s welfare, or whether the parties’ ability to cooperate has broken down irreparably. The remarriage of a custodial parent alone is not sufficient grounds for modification under settled Court of Cassation case law, unless the new family situation concretely and demonstrably affects the child’s wellbeing.
Recognition of Foreign Joint Custody Decisions
For foreign nationals who have obtained a joint custody order from a court in another country and subsequently wish to have that order recognized in Turkey, the legal pathway is a recognition lawsuit filed before the competent Family Court under Articles 50 through 59 of the Act on International Private and Procedural Law No. 5718. Since the Court of Cassation’s 2017 decisions, foreign joint custody orders are no longer treated as automatically contrary to Turkish public order. Provided that the conditions for recognition are otherwise satisfied, including the finality of the foreign decision, the absence of exclusive Turkish jurisdiction over the matter, and the respect for the defendant’s right to a fair hearing abroad, Turkish courts will recognize such orders.
Family Lawyer in Istanbul – Attorney Ozan Soylu
Attorney Ozan Soylu is a practicing lawyer based in Istanbul, advising Turkish and foreign clients on custody arrangements, joint custody protocols, and parental rights in the context of divorce and post-divorce proceedings. His practice covers the preparation of custody agreements, representation in contested custody disputes before Family Courts, and recognition proceedings for foreign custody decisions in Turkey.
For all legal matters concerning Turkish law, you can reach out to Attorney Ozan Soylu. Legal consultancy and representation services are provided with a dedicated approach for foreign nationals. To submit your questions, contact us.
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