The Necessity Of Consulting The Opinions Of Joint Children Of Legal Age Regarding Custody
T.C SUPREME COURT OF APPEALS
2nd Civil Chamber Case No. :2016/25431
Decision No. :2018/11110
Date of Decision: 16.10.2018 SUPREME COURT DECISION
COURT: Family Court
CASE TYPE: Divorce
Following the trial between the parties, the local court issued the above-mentioned decision, dated
and numbered as indicated, which was accepted by the defendant-plaintiff man, the woman
the alimony and compensation awarded to the woman, the alimony awarded for the benefit of the children, and
the rejection of the claim for moral damages; the appeal was filed with the request that the appeal review be conducted with a hearing;
on the date set for the hearing, October 16, 2018, the defendant-plaintiff … and
attorney did not appear. The opposing party, the plaintiff-defendant …, was represented by Attorney … After hearing the statements of those present,
it was deemed appropriate to postpone the case for further review and decision. Today,
all documents in the file were reviewed, and the necessary discussions and considerations were made:
1-Pursuant to Article 166/1-2 of the Turkish Civil Code, in order for a divorce decision to be issued, it must be established that the marital union
has been fundamentally shaken to the extent that it is no longer possible for the spouses to continue their joint life.
In the present case, the court found that the defendant-plaintiff man was at fault to a greater extent than the plaintiff-defendant woman
and
and that the marital union had become intolerable, leading to the decision to grant the divorce. However,
based on the proceedings and the evidence gathered, including hotel records and photographs submitted to the file
from that date, it was determined that the woman and the defendant-plaintiff man had reconciled during the divorce proceedings, staying together in a hotel room for one night,
and stayed there for one night, thereby indicating that the defendant-plaintiff woman had forgiven each other or at least
accepted each other with tolerance. Based on the events that were forgiven or accepted with tolerance,
no fault can be attributed to the parties, and a divorce decision cannot be made. In light of this situation,
the defendant-plaintiff man, who was forgiven, has become free of fault. Therefore, the conditions for divorce under Article 166/1-2 of the Turkish Civil Code have not been met
with regard to the plaintiff-defendant woman’s case.
Although the decision to accept the woman’s divorce case was incorrect, given the reasons explained,
the divorce ruling issued in the defendant-plaintiff man’s divorce case was excluded from the scope of the appeal
, the divorce ruling has become final, and it is also seen that the woman’s case has become moot.
In this case, no decision can be made on the merits of the plaintiff-defendant woman’s divorce case.
However, in cases where no decision needs to be made on the merits of the case due to it becoming moot,
the judge shall determine the attorney’s fees and litigation costs based on the parties’ rights at the time the case was filed
(HMK Art. 331/1). Considering this matter,
it was necessary to decide to overturn the ruling in order to issue a decision.
2- From the entire file; while the defendant-plaintiff man’s divorce case was ongoing, on
in other words, after the incident in question, on June 12, 2015, the defendant-plaintiff man filed a joint divorce case based on Articles 161 or 166/1 of the Turkish Civil Code.
The court accepted that the woman had engaged in behavior that undermined trust in the joint case,
, but the defendant-plaintiff man was found to be at fault and a decision was made to accept both cases.
As explained in paragraph 1 above, while the plaintiff-defendant woman’s divorce case was ongoing,
the events subject to the woman’s case were forgiven by the woman. After the event subject to forgiveness
the defendant-plaintiff man learned of the woman’s trust-breaking actions and, based on this incident,
filed for divorce, proving his claim as accepted by the court. In this
case, considering that the man’s fault in the events leading to the divorce was forgiven,
the plaintiff-defendant woman became fully at fault. Therefore, the court ruled that the defendant-plaintiff
man was more at fault than the plaintiff-defendant woman and, based on this erroneous determination of fault,
awarded the plaintiff-defendant woman material and moral damages (TMK m.174/1-2)
and alimony for poverty (TMK Art. 175) in favor of the plaintiff-defendant woman, and the decision to reject the defendant-plaintiff man’s claim for moral damages (TMK Art. 174/2) on the grounds that he was also severely at fault
was incorrect and
warranted reversal.
3- The court awarded custody of Alperen, born in 20006, Zeynep, born in 2008, and …, born in 2010,
to the plaintiff-defendant mother.
In custody arrangements, when the interests of the child and the parents conflict, the child’s interests
The child’s best interests are defined as the child’s physical, intellectual, and moral development in the best possible way
and the provision of social, economic, and cultural conditions for such development.
When determining the child’s best interests in these matters, if the child
what decision the child would make in their own interest if they were an adult
in a situation that concerned them, the person making the decision on behalf of the child must make the same decision;
that is, the child’s hypothetical opinion will be taken as the basis.
Custody is a matter of public order, and the principle of ex officio investigation applies. Therefore,
even developments that occur during the trial must be taken into account.
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 Children’s Rights
provide that children who are deemed by domestic law to have sufficient discernment
should be given the opportunity to express their views in cases that concern them and
that due weight should be given to their views. If the best interests of the child so require
, it is possible to make a decision contrary to their views. Custody is one of the most important issues
concerning children.
The court made a decision regarding the custody of the children of joint custody without consulting their views due to their age. Therefore, the children of joint custody should be informed about where they want to live in terms of education,
culture, and living conditions, and their preference regarding custody
should be asked by the judge (Supreme Court HGK 16.03.2012 dated 2011/2-
884 Case – 2012/197 Decision and January 22, 2014, 2013/2-2085 Case – 2014/30 Decision) and
if necessary, a social investigation report is obtained from a psychologist, pedagogue, and social worker or experts with such qualifications (Law No. 4787, Article 5) evaluating the living and accommodation conditions of the child with the mother and father,
and all evidence is evaluated together,
and it is determined which parent it would be in the child’s best interest to live with, and a decision is made accordingly.
a decision is made accordingly. However, it is not appropriate to make a written decision based on an incomplete investigation.
CONCLUSION: The appealed judgment is reversed for the reasons stated in paragraphs (1), (2), and (3) above.
Based on the grounds for reversal in paragraph (3), the defendant-plaintiff’s appeal against the child support awarded for the benefit of the children
, and that the appeal fee be refunded to the payer upon request, and that the right to appeal this decision within 15 days of its notification
be upheld, it was decided unanimously.