On The Custody Arrangement Of A Common Child Out Of Wedlock
T.C.
JUDICIARY
LAW DIVISION
2016/15771 E. 2017/1737 K. 20.2.2017 T
CASE : At the end of the trial of the case between the parties, the judgment given by the local court and dated and numbered above was appealed by the plaintiff father, the documents were read and discussed:
DECISION : The parties are British citizens. The plaintiff father requested joint custody of Chelsea Lynsey B., born 24/10/2003 out of wedlock, by giving the custody to the mother and father.
In summary, the court decided to dismiss the case on the grounds that although joint custody arrangement is possible for children born out of wedlock according to the national law of the parties, the arrangement of joint custody is contrary to the Turkish public order.
The provisions of paternity are subject to the law that established the paternity. However, if the parents and the child have a common national law, the provisions of the paternity shall be governed by that law, and if not, by the law of the common habitual residence ( Article 17/1 of the Civil Procedure Law).
In the event that the provision of the competent foreign law applicable to a particular case is clearly contrary to the Turkish public order, this provision shall not be applied; Turkish law shall be applied in cases deemed necessary ( Article 5/1 of the Civil Procedure Law).
In the concrete case, the dispute to be resolved is to determine whether the regulation on “joint custody” is clearly contrary to the Turkish public order.
In this context, first of all, it is necessary to look at the legal regulations in our domestic law. The relevant legal regulations in our domestic law are as follows.
When deciding on divorce or separation, the court shall regulate the rights of the parents and their personal relations with the child, after hearing the parents, if possible, and after receiving the opinion of the guardian and the guardianship authority if the child is under guardianship.
In regulating the personal relationship of the spouse who is not granted custody, the interests of the child, especially in terms of health, education and morals, shall be taken as a basis. This spouse is obliged to participate in the child’s care and education expenses to the extent of his/her ability ( Article 182/1-2 of the Civil Code).
The minor child is under the custody of his/her parents. Custody cannot be taken away from the parents unless there is a legal reason.
Unless the judge deems it necessary to appoint a guardian, adult children who are restricted shall also remain under the custody of their parents ( Article 335 of the Civil Code).
As long as the marriage continues, the parents exercise custody jointly.
In case of termination of the common life or separation, the judge may grant custody to one of the spouses.
In the event of the death of one of the parents, parental authority belongs to the survivor, and in the event of divorce, it belongs to the party to whom the child is left” ( Article 336 of the Civil Code).
If the parents are not married, the custody belongs to the mother.
If the mother is minor, restricted or dead, or if the custody has been taken away from her, the judge appoints a guardian or gives custody to the father, according to the best interests of the child ( Article 337 of the TCC).
“Additional Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11”, signed on behalf of the Republic of Turkey on March 14, 1985, was found appropriate for ratification by Law No. 6684 and entered into force after being published in the Official Gazette dated 25.03.2016 and became our domestic law. According to Article 5 of Additional Protocol No. 7, “Spouses shall be equal in marriage, during marriage and at its dissolution, in their relations between themselves and with their children, with respect to rights and responsibilities of a private law nature. This article does not prevent States from taking necessary measures for the benefit of children”.
International treaties duly put into force shall have the force of law. They may not be applied to the Constitutional Court with the claim of unconstitutionality. In the event of any conflict arising out of a conflict between an international treaty on fundamental rights and freedoms duly put into force and the law on the same subject, the provisions of the international treaty shall prevail (Article 90/last of the Constitution of the Republic of Turkey).
After looking at the legal regulation on domestic law, it will be useful for the resolution of the dispute to dwell on the concept of “public order” (ordre puplic).
It is not easy to make a complete definition of public order to express all its features. With a general definition; “The rules of public order are all the institutions and rules that ensure the good performance of public services in a country, the security and public order of the state and the peace and morality in the relations between individuals”. Within this general framework, public order rules can be explained as rules that protect the basic structure and fundamental interests of a society. ( Prof. Dr. Aysel Çelikel-Prof. Dr. B. Bahadır Erdem, Private International Law 1st edition-page: 149).
In general; the basic principles of the legal system aiming at social development and protecting personal rights and freedoms, the basic principles of the constitution, and the customs and morals prevailing in the society can be expressed as values representing public order, and it can be said that foreign law or foreign law provision that is clearly incompatible with these values will not be applied as contrary to public order. If the result of the application of the foreign law or foreign law provision in the concrete case creates an intolerable situation against the basic principles and values mentioned above, the foreign law shall not be applied on the grounds that the foreign law clearly violates public order. Here, the “adverse effect” of the public order that prevents the application of the foreign law is mentioned. The concept of public order is broad, ambiguous, relative and variable ( Prof.Dr.Cemal Şanlı-Doc.Dr.Emre Esen- Assist.Assoc.İnci Ataman-Figanmeşe, International Private Law-4th Edition-page: 72-73-78).
In Turkish law, public order (ordre puplic, public order) has an exceptional duty to prevent the application of foreign law. Foreign law authorized by our conflict of laws rules may be applied provided that it does not “clearly” contravene the public order of the country ( Art. 5 of the Civil Procedure Law). Therefore, public order is not for us a unilateral “binding principle” of conflict of laws. On the contrary, it is an exception to the principle of application of the foreign legal order indicated by our conflict of laws principle ( Prof. Ergin Nomer-Prof. Cemal Şanlı, Private Law of States, 18th edition-page: l59 )
“…Enforcement of a foreign judgment cannot be refused on the grounds that the applicable law is different in Turkish Law or that it is contrary to the mandatory rules of Turkish Law. The criterion to be taken as a basis here should be to look at the basic values of Turkish Law, the Turkish understanding of general decency and morality, the basic understanding of justice and legal policy on which Turkish laws are based, the fundamental rights and freedoms in the Constitution, the common and accepted legal principles valid in the international arena, bilateral agreements, the understanding of morality and justice common to developed societies, the level of civilization, political and economic regime, rather than the foreign judgment being contrary to one or more provisions of Turkish Law.”
(Decision of the Court of Cassation on Unification of Jurisprudence dated 10.02.2012 and numbered 2010/1 E, 2012/1 K.).
According to the above-mentioned explanations regarding our domestic law and the concept of public order, when the concrete case is evaluated, it is not possible to say that the “joint custody” arrangement is “clearly” contrary to the Turkish public order or violates the basic structure and fundamental interests of the Turkish society.
Therefore, the court, in accordance with Article 17/1 of the Law on Civil Procedure, should make a decision on the case regarding the request for “joint custody” by taking into account the regulations regarding custody in the joint national laws of the parties who are British citizens, by going into the merits of the case and evaluating all the evidence together, while the court should make a decision on the case regarding the request for “joint custody” by stating that the request is contrary to the Turkish public order, it has required a reversal.
CONCLUSION : It was unanimously decided on the day of 20.02.2017 that the appealed judgment shall be DISMISSED for the reason explained above, the other appellate objections shall not be examined for the time being according to the reason for the reversal, the pre-appeal fee shall be returned to the depositor if requested, and the way of decision correction shall be open within 15 days from the notification of this decision.