What Is A Change Of Custody Case?

What Is A Change Of Custody Case?

WHAT IS A CASE FOR CHANGE OF CUSTODY?

It is a lawsuit filed to change the right holder after the right of custody is given to a party. In order to file a lawsuit for the change of custody, the circumstances must change or the right to custody cannot be used properly.

REASONS FOR CHANGE OF CUSTODY

The reasons requiring the change of parental authority can be listed as follows:

Prevention of establishing a personal relationship with the child: The party who is not granted parental authority has the right to request to establish a personal relationship with the child. In case of direct or indirect prevention of establishing a personal relationship with the child and if this situation is proven, it may be possible to change the parental authority.
Leaving the child to a person who does not have parental authority: This person may be the parents who do not have parental authority or a third person. If the party who has custody of the child leaves the child with someone else for a long period of time, it will bring up the change of custody. However, this must also be proved.
Cases required by the interests of the child: In cases where the obligations of the right of custody are not fulfilled, the change of custody will come to the agenda due to the interests of the child.

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Emergence of new facts: Situations such as the marriage of the mother or father may have different effects on the child’s state of mind. In these cases, it will be necessary to re-evaluate the right of custody. Likewise, situations such as the death of one party or going to a distant place can also be considered as situations where a lawsuit for the change of custody will be filed.
The financial power of the custody right holder is not one of the reasons for changing the custody. Because the child’s care and education expenses are under the joint responsibility of the mother and father. Both parties have to participate in these expenses in proportion to their financial power. Participation alimony is foreseen for this matter. The person who does not have the right of custody will participate in the child’s expenses by paying maintenance in proportion to his/her financial power.

COMPETENT AND AUTHORISED COURT IN CUSTODY CASE

The court to hear the case for modification of custody is determined within the framework of jurisdiction and duty. Accordingly, the competent court to hear the case is the Family Court. However, if there is no family court in the place where the lawsuit will be filed, the Civil Court of First Instance, as the family court, will conduct the change of custody case. The competent court for the custody case is the court of the defendant’s place of residence on the date of the lawsuit.

In the lawsuit, the hostility is directed to the person who has the right of custody.

HOW IS CUSTODY USED IN UNMARRIED CASES?

In cases where the parents are not married, the right of custody belongs to the mother. This is valid in cases where the child was not born within the marriage union.

Giving the right of custody to the mother is not an obligation that the judge must comply with.

In cases such as the mother being a minor or restricted or in a situation where the custody should not be given to her, the judge can also give the custody to the father by evaluating according to the circumstances of the situation. This guardian can even be appointed.

WHAT IS THE SCOPE OF PARENTAL AUTHORITY?

The scope of the right of custody is to make the necessary decisions and fulfil the obligations in the best interests of the child. This includes the care and education of the child in all aspects. The decisions to be taken on behalf of the minor child are made by the right of custody in the best interests of the child. Important issues regarding the education of the child are as follows:

The child should be educated to the maximum extent possible. This education should be provided in all aspects: physical, mental and spiritual.
If the child has a physical or mental disability, the education should be given in this direction.
The right to determine the religious education to be given to the child is a right given to the parents. However, of course, an adult person will be free to choose his/her own religion.

HOW IS THE CHILD UNDER CUSTODY REPRESENTED?

The representation of the child under custody belongs to the mother and father within the marriage union. The mother and father exercise their right of representation within the framework of their custody.

WHAT ARE THE CONDITIONS FOR TERMINATION OF CUSTODY?

The conditions for the removal of the right of custody are as follows:

It is necessary that the duty of custody cannot be fulfilled properly due to reasons such as inexperience and illness. The fact that the owner of the right of custody is located elsewhere or is obliged to travel constantly is also considered within this scope.
The child must not be given due attention and the care and representation of the child must be severely impaired.
If the right of custody is revoked, it is not obligatory to give it to the other parent. If it is not deemed appropriate to give custody to the other party, a guardian can be appointed for the child. The removal of parental authority is not granted only for a single child. The decision is taken to cover all existing children.

WHAT ARE THE CONSEQUENCES OF CHANGING CUSTODY?

The legal consequences of changing the custody right holder are listed as follows:

The rights and obligations of custody pass to the person to whom custody is granted.
In case of a change of custody, the personal relationship between the person who has been granted custody and the child can be regulated. This arrangement is made ex officio by the judge who decides on the change of custody.
Alimony for maintenance is decided. Because the right of custody is only related to the representation and care of the child. Even if the mother or father of the child does not have the right of custody, their responsibilities towards the child continue. For this reason, the child must bear all kinds of care and education expenses in proportion to his/her strength.

AGE OF THE CHILD IN CUSTODY CASE

The age of the child whose custody is requested in the custody case is one of the important points. Because the needs of the child may also vary according to his/her age. However, it is important to note that the age of the child is not a sufficient criterion alone to award custody to one party. In other words, the judge will make an evaluation by taking into account the requirements of the concrete situation. The age of the child and its effects in the custody case are as follows:

0-3 age range: This is the period when the child needs the most care and affection. It is also the age range in which children are most attached to their mothers. Separation of the child from its mother may have negative consequences for the child’s mental health and personal development. For this reason, custody is usually given to the mother. However, if it is understood that the mother will severely disrupt the custody obligations, then the custody can be given to the father.

3-7 age range: During this period, the child’s need for the mother decreases. However, it is still very important for the child to be close to the mother for his/her personal development and mental health. For this reason, custody is often left to the mother. If it is understood that the mother cannot fulfil her parental obligations, the custody can also be left to the father.

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6-12 age range: This period is called school age. During the school age period, custody is given to the party that will enable the child to build his/her future and provide all kinds of support to the child in this process. Reports of social service experts are effective in this process.

12 years of age and above: Children in this period are now considered to have reached the age of cognition. The opinion of the children is taken during the custody case process. Considering the child’s request, custody is given to the party who is considered to fulfil the custody obligations better.

In accordance with the latest case law of the Court of Cassation, the child who has reached the age of 8 will be heard by the court and his/her preference regarding custody will be asked. The court will make a decision on custody after hearing the child.

OBLIGATION OF THE NON-CUSTODIAL SPOUSE TO BEAR THE EXPENSES

Alimony for participation is awarded against the spouse who is not granted custody. This alimony enables the non-custodial spouse to participate in the expenses of the child in proportion to his/her financial power.

Fault rates are not important in the determination of maintenance. Because the child is biologically the child of that person, whether he/she has the right of custody or not. Therefore, there are responsibilities towards the child.

Alimony will be determined during the process of the change of custody case. The issues taken into consideration in its calculation are as follows:

The age of the child
Education
Economic conditions
General needs of the child
Financial situation of the parents
Child’s income

Considering these criteria, the judge may award maintenance in favour of the joint child during the proceedings.

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