Unless There Is No Best interests Of The Child, The Surname Of The Child Whose Custody Is With The Mother Does Not Change With The New Husband’s Surname
2nd Civil Chamber
Principal Number: 2020/565
Decision Number: 2020/4810
“Case Law Text”
COURT :Family Court
TYPE OF CASE : Changing the Surname of the Child Whose Custody is with the Mother
At the end of the hearing of the case between the parties, the judgement given by the local court and dated and numbered above was appealed by the defendant institution, the documents were read and discussed:
In the petition of lawsuit, the plaintiff woman claimed that she and the defendant …, the father of the common child Umut, divorced with the decree of Sivas Family Court numbered 2005/1022 Main, 2005/991 Decision, that she was given the custody of the common child Umut, that she had a second marriage with a person named Göksel Yerlikaya, that there were problems due to the different surnames of the common child and herself, and requested and sued for the change of the surname of the common child Umut from “Yıldızhan” to “Yerlikaya”.
As a result of the trial conducted by the court and the evidence collected; the plaintiff is married for the second time, she has a child from her second marriage, Göksel Yerlikaya has a son from his first marriage, the surname of everyone in the family except the plaintiff’s son Umut is “Yerlikaya”, this situation has a negative effect on the child, in accordance with Article 27 of the TMK Art. 27 and Article 20 of the Constitution, the request to change the surname of the child, whose custody is given to the mother in accordance with Article 20 of the Constitution, can be accepted if there is a justified reason, therefore, it was decided to accept the lawsuit and change Umut’s surname from “Yıldızhan” to “Yerlikaya”, and the related decision was appealed by the defendant institution.
The dispute between the parties is whether it is possible to change the surname of the child born in the union of marriage with the surname acquired by the plaintiff mother due to her second marriage. In the Turkish Legal System, it is understood that the child born in the union of marriage can take the surname of his father, or according to the case law, the child can take the surname of the mother, whose custody is given to him as a result of divorce, if the child has the best interest of the child and there is no other legal regulation on this issue. In the face of this situation, while the lawsuit should be rejected, the decision to accept the lawsuit by making a mistake in the interpretation of the provisions of the law is contrary to the procedure and the law and requires reversal.
CONCLUSION:
It was unanimously decided that the appealed judgement shall be DISMISSED for the reason shown above, the pre-appeal fee shall be returned to the depositor upon request, and the way of decision correction shall be open within 15 days from the notification of this decision. 15.10.2020
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