Custody Preference Should Be Asked To The Common Child At The Age Of Cognition
2nd Civil Chamber 2020/5946 E. , 2021/437 K.
“Case Law Text”
COURT : Istanbul Regional Court of Justice 38th Civil Chamber
TYPE OF CASE : Divorce
At the end of the trial of the case between the parties, the judgement given by the Civil Chamber of the Regional Court of Justice, dated and numbered above, was appealed by the defendant male, the documents were read and discussed accordingly:
1-According to the writings in the file, the evidence on which the judgement is based and the reasons in accordance with the law, and especially since there is no mistake in the appreciation of the evidence, the other appellate objections of the defendant male, which are not within the scope of the following subparagraph, are unwarranted.
2- In the custody arrangement; in case of a conflict between the interests of the child and the parents, the child’s interest must be given precedence. The best interest of the child is the best physical, intellectual and moral development of the child and the provision of social, economic and cultural conditions for the child in order to realise such a development. When determining the best interests of the child in these matters, the person in the authority making a decision for the child should decide in the same way as he/she would have decided for his/her own benefit in an event concerning him/her if he/she had been an adult; in other words, the hypothetical opinion of the child shall be taken as basis.
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Custody is a matter of public order and the principle of ex officio investigation applies. Therefore, even the developments occurring during the proceedings should be taken into consideration.
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 stipulate that children who are recognised by domestic law as having sufficient capacity to understand should be given the opportunity to express their views in proceedings concerning them and that their views should be given due weight. If the best interests of children so require, it is possible to decide against their views. Custody is one of the most important issues concerning children.
When the file is examined, it is necessary to inform the court about the common children Nedim and Hüma, who are understood to be at the age of cognition, and to ask them about their preferences regarding custody, and to evaluate all the evidence together and to decide according to the result, but the judgement on custody with incomplete examination in writing is contrary to the procedure and the law and requires reversal.
CONCLUSION :
It has been unanimously decided that the appealed judgement is DISMISSED for the reason explained in subparagraph 2 above, the other parts subject to appeal outside the scope of the reversal are APPROVED for the reason shown in subparagraph 1 above, according to the reason and form of the reversal, the appellate objections regarding the personal relationship and participation alimony are not examined for the time being, the pre-appeal fee shall be returned to the depositor upon request, and the file shall be sent to the relevant regional court of justice law department. 20.01.2021 (Wed.)
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