Declaration That The Child Whose Custody Is Given To The Mother Does Not Want To See His Father
T.C. JUDICIAL COURT 2ND CIVIL CHAMBER E. 2015/7575, K. 2015/23897, T. 14.12. 2015
* THE CHILD, whose CUSTODY WAS GIVEN TO THE MOTHER, DECLARES THAT HE DOES NOT WANT TO SEE HIS FATHER (While Establishing Personal Relationship with Children, the Physical, Intellectual and Moral Development of the Child and the Highest Interest of the Child Should Be Considered / The Court Should Not Establish Personal Relationship with the Plaintiff Father at This Stage, Considering the Defects of the Parties, the Expert Report, the Opinion Expressed by the Joint Child at the Age of Cognition and the Highest Interest of the Child)
* THE OPINION OF THE CHILD AT THE AGE OF ADULTERY REGARDING PARENTHOOD (At the Hearing and Listened to by the Experts Appointed by the Court, the Child Declared That He Did Not Want to Meet His Father / The Court Should Not Establish Personal Relationship with the Plaintiff Father at This Stage, Considering the Fault Status of the Parties, the Expert Report and the High Interest of the Child)
* PERSONAL RELATIONSHIP WITH THE CHILD ESTABLISHMENT (At the Hearing and Listened to by the Experts Appointed by the Court, the Child Declared That the Child is at the Age of Cognizance and Does Not Want to See His Father / The Court Should Not Establish Personal Relationship with the Plaintiff Father at This Stage Considering the Fault Status of the Parties, the Expert Report, the Opinion of the Joint Child at the Age of Cognizance and the High Interest of the Child)
* SUPPORT (Divorce / Separation – The Court is obliged to take the temporary measures necessary during the continuation of the case, especially regarding the housing of the spouses, the management of the goods, the care and protection of the children, and the temporary measures to be taken ex officio / Considering the economic and social situation of the parties, an appropriate amount of alimony will be ruled in favor of the defendant woman, effective from the date of the case)
SUMMARY : 1-While establishing a personal relationship with children; in addition to the satisfaction of maternal and paternal feelings, the child’s physical, intellectual and moral development and the best interests of the child should also be considered. It can always be requested in changing years. The court should not establish a personal relationship with the plaintiff father at this stage, taking into account the fault status of the parties, the expert report, the opinion of the joint child at the age of cognition and the best interests of the child. 2-When a divorce or separation case is filed, the judge has to take the necessary temporary measures, especially regarding the accommodation of the spouses, subsistence, management of the property (and the care and protection of the children), during the continuation of the case. Considering the economic and social status of the parties, an appropriate amount of precautionary alimony should be ruled in favor of the defendant woman, effective from the date of the lawsuit.
LAWSUIT : At the end of the trial of the case between the parties, the judgment given by the local court, dated and numbered above, was appealed by the defendant woman in terms of fault determination, personal relationship, alimony and damages, and it was requested that the appeal examination be made with a hearing; On 14.12.2015, the day set for the hearing, the appellant defendant and the opposing party plaintiff attorneys came. After listening to the speeches of those who came, it was deemed appropriate to leave the matter after the hearing to be examined and decided. Today, all the papers in the file were read and the necessity was discussed and considered:
DECISION : 1- Based on the writings in the file, the evidence on which the decision is based and the legal reasons and especially upon the complaint of the defendant woman, the fact that the defendant woman exercised her constitutional right in the incident that caused the plaintiff man to be tried, although it is not appropriate to evaluate the defendant woman’s use of her constitutional right as a defect against her; Since it is understood that the defendant woman, who exhibited behaviors that undermined trust, was found to be completely at fault in the events that caused the divorce; The appellate objections of the defendant woman other than the scope of the following paragraph are unwarranted.
2- The joint child, whose custody is given to the mother, was born in 2004 and is at the age of cognizance. He was heard at the hearing and by the experts assigned by the court and stated that he did not want to meet with his father. When establishing a personal relationship with children; in addition to the satisfaction of maternal and paternal feelings, the child’s physical, intellectual and moral development and best interests should also be considered. It can always be requested in changing years. While the court should not establish a personal relationship with the plaintiff father at this stage by considering the fault status of the parties, the expert report, the opinion of the joint child who is at the age of cognition and the best interests of the child (TMK.art.324), the written judgment required a reversal.
3-When a divorce or separation lawsuit is filed, the judge is obliged to take the necessary temporary measures (ex officio) during the continuation of the lawsuit, especially regarding the accommodation of the spouses (Art. 186/1 of the Turkish Civil Code), subsistence (Art. 185/3 of the Turkish Civil Code), management of property (Art. 223, 242, 244, 262, 263, 264, 267, 215 of the Turkish Civil Code) and the care and protection of children (Art. 185/2 of the Turkish Civil Code) (Art. 169 of the Turkish Civil Code). In that case, in accordance with Articles 185/3 and 186/3 of the Turkish Civil Code, it was found contrary to the procedure and the law to make a decision as written, while an appropriate amount of precautionary alimony should be ruled in favor of the defendant woman, effective from the date of the lawsuit, taking into account the economic and social status of the parties.
CONCLUSION : It was unanimously decided on 14.12.2015 that the appealed judgment shall be DISMISSED for the reasons shown in subparagraphs 2 and 3 above, and the other parts subject to appeal, which are not within the scope of the reversal, shall be APPROVED for the reason shown in subparagraph 1 above, and if requested, the pre-appeal fee shall be returned to the depositor, and the way of decision correction shall be open within 15 days from the notification of this decision.