What Is Temporary Custody In Divorce Case?
WHAT IS TEMPORARY CUSTODY IN DIVORCE CASE?
The parties are granted the right to live separately by submitting the petition for divorce to the family court by paying the fees, that is, by opening the divorce case. However, in this case, a problem arises regarding which parent the joint children will stay with. During the continuation of the divorce case, the judge’s decision on which parent the joint children will stay with is called “temporary custody” or “precautionary custody” decision.
According to Article 169 of the Turkish Civil Code titled temporary measures, when a divorce case is filed, the judge automatically takes the necessary measures during the proceedings. These measures include temporary custody and establishing a personal relationship. However, it should be noted here that the decision on temporary custody given by the family court judge is not a final decision, but a precautionary decision that can only be valid during the divorce case. Therefore, it is also possible to make a decision contrary to the temporary custody decision in the judgement to be given at the end of the case.
During the continuation of the divorce proceedings, the spouses generally cannot agree on who will have custody of their joint children. This situation leads to the prolongation of the proceedings in divorce cases. In some divorce cases, the parties may reach an agreement on the spouse to whom the custody will be given. However, even if the parties agree, the judge is not bound by this agreement and may sign a different decision by taking all measures in favour of the joint child.
HOW DOES THE JUDGE DETERMINE TEMPORARY CUSTODY IN A DIVORCE CASE?
As a rule, the party filing the lawsuit should submit to the court his/her request for the joint child to stay with him/her in the petition for lawsuit or reply to the reply, and the plaintiff party in the reply or second reply petition. However, since the principle of ex officio investigation of the judge is in question in matters related to custody, both parties may request the temporary custody to be given to them at any stage of the proceedings.
During the trial process of the divorce case, which party will keep the joint children is determined by taking into account the social economic situation researches of the parties and the report of the expert social worker or pedagogue. While considering temporary custody, the judge,
– The ages of the joint children and the parties,
– Thoughts and behaviour of joint children,
– Living conditions of joint children
– It is important that the siblings are not separated from each other
– It takes into account the issues that are involved in the divorce proceedings.
AGES OF JOINT CHILDREN:
It is generally accepted that children between the ages of 0-3 are physically and mentally in need of maternal care and attention. It is considered very difficult for children in this age range to be separated from their mother and custody is usually given to the mother.
Children in the 4-7 age range are still in need of maternal care and attention, but unlike children in the 0-3 age range, they have lost their need for the mother in habits such as toilet, eating and drinking. In this case, if there is no harm in the child staying with the mother, it is generally preferred to give custody to the mother.
For children over 8 years of age, the situation is different. After this age, children’s dependency on their parents decreases and they start to form their own thoughts and behaviours. In this case, taking into consideration the recent case law of the Court of Cassation, the judge should hear the joint children and the custody issue should be evaluated by taking this hearing into consideration.
THOUGHTS AND BEHAVIOURS OF JOINT CHILDREN:
In the event that the file is referred to a pedagogue or social worker to give an opinion on who will have custody of the joint children, the pedagogue or social worker will have a face-to-face meeting with the joint children and learn the thoughts and behaviours of the children by asking which parent they feel better and happier with. This is also an important factor in determining the temporary custody.
ISSUES AFFECTING THE DIVORCE CASE:
The judge also takes into consideration the issues that are involved in the divorce case while making a decision on temporary custody. The issues to be taken into consideration by the judge here are whether there is a psychological, physical, verbal and economic violence against the children or whether the mother and father, who are parties to the case, have a bad habit with addiction. These examples can be multiplied.
SIBLINGS SHOULD NOT STAY AWAY FROM EACH OTHER:
In divorce proceedings, the parties may request that only one or more joint children remain with them. However, in such cases, the family court judge considers that the separation of siblings from each other may cause a separate trauma and an interim decision is usually made to ensure that the joint children do not stay away from each other.
The party requesting temporary custody must ensure that a suitable living environment for the children is available at home. The habits and living conditions of joint children are taken into account. In addition, the party requesting temporary custody must have the necessary financial means for the care of the child. However, this condition is not a condition to be considered as a priority. If both parents have the same conditions, the financial situation will also be taken into consideration by the judge. However, it is possible to grant custody to a party who has no income and does not work, to the extent required by the best interests of the child.
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