1. Foreign Divorce Decree: The Concept of Custody Remaining “Suspended” and Conditions for Its Occurrence
In accordance with Supreme Court precedents, even if a divorce decree rendered by a foreign court has been recognized or enforced in Turkey, if no judgment has been rendered regarding the custody of the common child, or if the existing judgment is found to be contrary to Turkish public order and is not enforced, the right of custody is deemed to have remained “suspended” or “vacant” in Turkey.
Absence of a Judgment: In the decisions of the Supreme Court 17th Civil Chamber (2009/10927 E., 2010/593 K.) and 5th Civil Chamber (2024/369 E., 2024/3972 K.), it has been explicitly stated that when a foreign court decision does not include a provision regarding custody, even if the divorce part is recognized, the issue of custody remains suspended.
Violation of Public Order and Partial Enforcement: According to the decisions of the Supreme Court 20th Civil Chamber (2016/10693 E., 2016/9660 K.) Kand 17th Civil Chamber (2012/11007 E., 2012/11131 K.), the foreign court’s granting of custody “to both mother and father” (joint custody) was deemed contrary to Turkish legal practice during the relevant period and was not enforced. In this situation, even if the divorce decree is enforced, since the custody provision remains outside of enforcement, the right of custody is considered to have been “left vacant” in Turkey.
2. Public Order in the Regulation of Custody and the Court’s Ex Officio Duty
Rules regarding custody are directly related to public order in Turkish law. According to the decision of the 2nd Civil Chamber of the Court of Cassation (2009/11390 E., 2010/1604 K.) K, the absence of a custody arrangement in a foreign judgment does not prevent the recognition of divorce; however, this deficiency must be remedied in Turkey with an independent lawsuit.
Judicial Intervention: The 17th Civil Chamber of the Court of Cassation (2009/10926 E., 2010/592 K.) emphasized that in cases where custody is suspended, the court must make a custody arrangement ex officio or upon notification.
Preliminary Issue: The 2nd Civil Chamber of the Court of Cassation (2013/20889 E., 2014/5228 K.) stated that if the establishment of personal relations is requested while custody is suspended, the court must first arrange custody, and a provision for personal relations cannot be established before custody is decided. Similarly, ruling on child support without arranging custody was also found to be contrary to procedure (2nd Civil Chamber, 2014/23797 E., 2015/5663 K.)
3. Competent and Authorized Court
In the event that custody remains suspended, the rules of jurisdiction and competence for an independent custody lawsuit to be filed have been clarified by decisions of the Court of Cassation:
Competent Court: Pursuant to Article 6/2-c of Law No. 4787, Family Courts are competent in cases concerning the arrangement of custody (20th Civil Chamber, 2017/5947 E., 2017/3841 K.)K.
Competent Court: There is no definitive rule of jurisdiction in custody arrangement cases. The 5th Civil Chamber of the Court of Cassation (2020/7579 E., 2020/9110 K.) stated that if an objection to jurisdiction is not raised in due time to the court where the case was filed, that court will become competent. Generally, the court of the child’s place of residence in Turkey or the place where the parties reside is considered competent (17. HD, 2013/1224 E., 2013/8167 K.)
4. Trial Procedure and the Child’s Best Interest
A custody arrangement case is an independent lawsuit filed after the recognition of a foreign divorce decree.
Right to a Legal Hearing: The 2nd Civil Chamber of the Court of Cassation (2018/6976 E., 2018/13405 K.) ruled that since these cases concern public order, a decision cannot be made based solely on the file, and a hearing must be opened to allow parties to present their evidence.
Prohibition of Restriction: A custody decision rendered by the court cannot be limited by national borders due to the child’s best interest (2. HD, 2017/3675 E., 2017/10641 K.).
Condition of Finalization of Recognition: For the merits of a custody case to be considered, the recognition decision of the foreign divorce decree in Turkey must have become final as a prerequisite (2. HD, 2015/15599 E., 2015/24938 K.)Ka.
In conclusion; the absence of a custody provision in a foreign court decision or the non-enforcement of such a provision leaves custody pending in Turkey. In this situation, the competent Family Court is obliged to re-regulate custody, considering the child’s best interests, either upon an independent lawsuit or notification.
Why is Expert Legal Support Necessary?
The issue of custody remaining pending in Turkey after divorce decrees issued abroad is a technical legal situation that can lead to significant loss of rights and difficult-to-remedy consequences in practice. This process requires not only knowledge of recognition and enforcement rules, but also the correct interpretation of Supreme Court precedents regarding public order, the child’s best interests, the ex officio investigation principle, the distinction between preliminary issue and main case, and procedural law.
Specifically;
The correct determination of whether there is a custody provision in the foreign decree,
The assessment of whether the existing custody arrangement is suitable for partial enforcement,
Determining how to file requests for personal relationship, child support, or interim injunctions while custody is pending,
Eliminating the risks of procedural dismissal that may arise if the wrong competent court is chosen,
Establishing an evidence strategy in line with the principle of the child’s best interests
can only be properly carried out by an expert in family law and immigration law experienced in this field.
Therefore, it is of great importance for parties experiencing custody issues after divorce decisions abroad to manage the process from start to finish with professional legal support. 2M Hukuk Avukatlık Bürosu, which has extensive practical experience in this field, especially in the Tuzla, Pendik, Kartal, and Tepeören districts of Istanbul, provides comprehensive legal consultancy and litigation tracking services to its clients in all family law disputes based on the child’s best interests, including suspended custody, independent custody cases, and recognition and enforcement processes.
It should not be forgotten that even the smallest procedural error made in custody cases can lead to consequences directly affecting the child’s future. Therefore, the process being conducted with an expert lawyer is not only a legal necessity but also of vital importance for the child’s interests.
