Public Order Debate, Supreme Court – Constitutional Court Case Law and Current Practice

Validity and Enforceability of Joint Custody Decisions Rendered by Foreign Courts in Terms of Turkish Public Order. This study has been prepared within the framework of the case law developed by the Supreme Court and the Constitutional Court (AYM) during the processes of recognition and enforcement in Turkey of “joint custody” decisions rendered by foreign courts. The examination is based on the chronological and doctrinal changes in judicial decisions.

1. Traditional Approach: Incompatibility of Joint Custody with Public Order

In the Supreme Court’s past decisions, it was emphasized that, according to Article 336 of the Turkish Civil Code (TMK), in case of divorce, the judge is obliged to grant custody to one of the spouses, and that this regulation is related to public order.

Relationship between TMK Art. 336 and CPLI Art. 38/c: In the decisions of the 2nd Civil Chamber of the Supreme Court dated 2003, 2006, and 2014 (2003/3889 K.2006/13638 K., 2014/13375 K.K), it is observed that enforcement requests were rejected on the grounds that foreign courts’ joint custody arrangements were contrary to the Turkish Civil Code and that this situation violated public order.

Custody Remaining “Vacant”: In the decisions of the 17th Civil Chamber (2012/11131 K.) and the 20th Civil Chamber (2016/9660 K.K, 2017/3841 K.K) of the Court of Cassation, it was determined that the custody right of the minor was “left vacant” due to the non-enforcement of the joint custody provision. In this situation, it was ruled that custody must be re-regulated by Turkish family courts or the minor must be placed under guardianship.

Possibility of Partial Enforcement: The 2nd Civil Chamber of the Court of Cassation (2016/11377 K.) stated that even if the custody provision is found to be contrary to public order, other parts of the foreign judgment, such as divorce and property division, can be partially enforced in accordance with Article 56 of the IPPL.

2. Modern Approach: International Conventions and the “Manifestly Contrary” Criterion

Since 2017, in the Court of Cassation and Constitutional Court decisions, there has been a change in jurisprudence stating that joint custody is “not manifestly” contrary to Turkish public order.

Constitution Art. 90 and ECHR Additional Protocol 7: The 2nd Civil Chamber of the Court of Cassation (2017/1737 K., 2017/13800 K.) has based its decision on the principle of “equality of spouses in rights and responsibilities” found in Article 5 of Additional Protocol No. 7 to the ECHR and Article 90 of the Constitution. In this context, it was concluded that joint custody does not violate the fundamental structure or core interests of Turkish society, and therefore cannot be considered “explicitly” contrary to public order.

Constitutional Court Assessment: The Constitutional Court (decision dated 06/10/2021), referring to this new approach of the Court of Cassation, confirmed that the recognition of joint custody is in compliance with domestic law in the absence of a dispute between the parties.

Current Practice: In the decisions of the 2nd Civil Chamber of the Court of Cassation dated 2023 (2023/4605 K., 2023/978 K.), the recognition and enforcement of joint custody decisions issued by foreign courts were approved. It was particularly emphasized that even the representation of parties by the same attorney would not, by itself, constitute a violation of public order.

3. Conditions for Enforcement and Recognition

For foreign joint custody decisions to gain validity in Turkey, the conditions stipulated in Articles 50-58 of the International Private and Procedural Law (MÖHUK) must be met:

Reciprocity (Mutuality): The principle of reciprocity is observed within the framework of agreements made with countries such as Germany (e.g., Luxembourg Convention) (2015/11581 K.).

Finality and Apostille: It is mandatory to submit the original or a duly certified copy of the judgment by the authorities of that country (2015/24938 K.).

Right to Defense: In cases where the decision was rendered in absentia, whether proper notification was made is part of the public order review.

4. Secondary Sources and Additional Context

The following matters have been considered as secondary sources due to containing limited information in the presented decisions:

Lack of Custody Provision: It has been stated that the absence of any custody provision in a foreign divorce decree does not constitute an obstacle to the recognition of the decree regarding the divorce aspect (Court of Cassation 2nd Civil Chamber, 2023/6305 K.).

Plea of Lis Pendens: The existence of an ongoing divorce or custody case in Turkey, can be considered as an obstacle to the enforcement of a foreign custody decision (Court of Cassation 2nd Civil Chamber, 2023/980 K.).

Procedural Law and Public Order: It has been emphasized that public order review is not limited to substantive law, and that procedural errors such as the violation of the right to defense are also examined within this scope; however, not every procedural error constitutes “a clear violation” (Court of Cassation 11th Civil Chamber, 2013/4530 K.; Court of Cassation 2nd Civil Chamber, 2024/1916 K.).

Conclusion: In current judicial practice, joint custody decisions rendered by foreign courts are not considered contrary to Turkish public order, in accordance with international conventions and the principle of equality of spouses, as long as there is no situation contrary to the child’s best interests or a severe conflict between the parties; and can be subject to recognition and enforcement.

Why is Expert Lawyer Support Necessary?

The recognition and enforcement in Turkey of joint custody decisions rendered by foreign courts is not merely a formal recognition process; it involves highly technical evaluations such as public order control, the impact of international treaties on domestic law, Constitutional Court-Court of Cassation jurisprudence harmony, the child’s best interest, and the criterion of clear contradiction. Therefore, executing the process flawlessly necessitates the support of a lawyer specialized in the field.

In particular;

Correct analysis of whether the foreign joint custody decision is subject to old or new jurisprudence,

Determination of whether the decision is suitable for partial or full enforcement,

Evaluation of the claim of contradiction to public order not as abstract, but through the criterion of ‘clear contradiction’,

Accurate reflection of the actual situation between the parties (dispute, allegations of violence, personal relationship with the child) in the file,

Anticipating outcomes that may arise after enforcement, such as suspension of custody, initiation of a new custody lawsuit, or requests for injunctions, can only be managed soundly by a legal professional proficient in current Court of Cassation and Constitutional Court practices.

At this point, 2M Hukuk Law Office, with its Istanbul-based operations, especially in the Tuzla, Pendik, Kartal, and Tepeören regions, provides services for:

Recognition of foreign divorce decrees,

Enforcement of joint custody decisions,

Family court cases filed after the suspension of custody,

International family law and foreign nationals law disputes

offers its clients strategic, up-to-date, and results-oriented legal support in these areas.

It should not be forgotten that; even a single procedural error in sensitive matters such as joint custody can directly affect the child’s legal status, the parent-child relationship, and the long-term rights of the parties. Therefore, conducting the process with the assistance of an expert lawyer and in accordance with current case law is indispensable for both legal security and the child’s best interest.