Reasons For Termination Of Custody
Reasons for termination arising from the law;
a-) Custody ends when the child reaches the age of eighteen or when he/she comes of age through marriage or, if he/she has reached the age of fifteen, his/her own will, the consent of his/her parents, or a court decision. However, if the adult individual is restricted and it is not deemed necessary to appoint a guardian, the guardianship continues until the state of restriction is removed. When the state of restriction is lifted, the parental authority also ends.
b-) If the child is given to a third party as an adoptive child, the rights and obligations arising from parental authority shall pass to the adopter.
c-) In the event of the death of the parents or the child or in the event that the child is declared absent, the parental authority ends. However, if only one of the parents has died, the right of custody shall be vested in the surviving spouse. In case both parents die, a guardian is appointed for the child.
Termination of parental authority by court decision;
If necessary, the judge removes the custody automatically or upon request. The prerequisite for the judge to decide to remove the custody is that other measures for the protection of the child have not yielded results or it is understood that these measures will be insufficient. If the protection of the child can be ensured by other measures, custody should not be removed.
1-Failure to fulfill the duty of custody properly; It refers to the inability of the parents to fulfill the duty of custody properly due to inexperience, illness, being elsewhere or similar reasons. The fact that the parents are poor does not require the removal of custody, but their habit of laziness may be a justifiable reason. The aforementioned reasons are the reasons that continue for a certain period of time and prevent the proper fulfillment of the duty. Before the custody is removed due to the inexperience of the parents, other measures are also taken to eliminate this inexperience of the parents. In the 2nd HD of the Court of Cassation dated 7.9.1999 and numbered 7102-8157 Main and Decision; “The right of custody cannot be removed unless it is proven that the mother, to whom the right of custody has been granted, is incapacitated and does not fulfill her duty.” The illness of the parents may not be based on their fault. This illness must be severe enough to prevent them from fulfilling their parental duty. Conditions such as mental illness are the best example of this. In addition, the reasons are not limited in the law and the judge has the discretion as to what is a similar reason. In case of restriction of the parents, the right of custody can also be abolished.
b-) If the parents do not pay sufficient attention to the child, if they do not have a valid excuse for this neglect and if this situation is continuous, the right of custody can be removed. Here, the parents must be at fault and the child must be harmed by this situation. The Court of Cassation 2HD dated 21.03.1994 and numbered 4405-4618 Main and Decision; it should be determined that the children left to the father are actually left to the grandmother and it should be decided to change the custody.
c-) In case the parents grossly violate their obligations towards the child, the right of custody must be grossly violated and there must be gross negligence in order for the custody to be removed.
d-) In case of remarriage of the parent who has the right of custody, the custody of the child may be revoked for the remarried parent by acting in the best interests of the child. If the parent does not fulfill the requirements of the custody duty properly after marriage or if the interests of the child require the filing of a lawsuit, the Family Judge may change the right of custody of the child according to the circumstances and conditions of the situation.
e-) Parental authority cannot be exercised if the parents have been sentenced to imprisonment.
Change of Custody Case
Court decisions on custody do not constitute a final judgment. Custody can be changed according to changing circumstances. This change can only be made by a judge’s decision.
According to the decision of the Court of Cassation General Assembly of Civil Chambers dated 15.04.1992 and numbered 1992/2-140 E. 1992/248 K; in order to change the custody with divorce, there must be fundamental changes in the situation of the party or the child to whom the custody is given and these changes must be of a permanent nature, not temporary. According to the provisions of Article 12 of the United Nations Convention on the Rights of the Child and Articles 3 and 6 of the European Convention on the Exercise of the Rights of the Child, if the child is capable of understanding the meaning and importance of the situation in question, the opinion of the child should also be taken. In addition, in the event that one of the above-mentioned reasons for the revocation of custody occurs in the spouse to whom custody is granted, a change of custody should be ruled in the best interest of the child. For example, it is possible to change the custody if the spouse to whom the custody is given suffers from a permanent and severe illness.
In the case law of the Court of Cassation 2nd HD E:2013/4764 K:2013/25031 and decision dated 4.11.2013; the remarriage of the mother or father who assumed custody is not considered sufficient for the change of custody alone. Custody can be changed if the interests of the child require it. In order to do so, the applicant for a change of custody must provide evidence that it is in the best interest of the child.
On the other hand, there is no time limit for filing a suit for change of custody. It can be filed as soon as the interests of the child require it to be filed. This lawsuit can be filed not only by the person who does not have custody, but also by the person who has custody of the child.