1. General Principles and Legal Framework 

According to Article 166/3 of the Turkish Civil Code (TCC), for a consensual divorce decision to be rendered, it is mandatory for the parties to agree on an arrangement regarding the financial consequences of the divorce and the situation of the children, and for this arrangement to be approved by the judge. In a consensual divorce, custody is, as a rule, determined according to the joint will of the parties and the protocol they have prepared. However, the judge is not obliged to accept this agreement presented by the parties as is; the judge has the authority to make any necessary changes, taking into account the best interests of the parties and the children.

2. Fundamental Criterion in Determining Custody: The Child’s Best Interest 

Although the granting of custody to the mother or father in a consensual divorce protocol is subject to the free will of the parties, the final decision is based on “the best interest of the child”. According to the decisions of the Supreme Court, even if an arrangement contrary to the child’s physical, intellectual, and moral development has been accepted by the parties, it will not be approved by the judge. For example, unless there is a justified and acceptable reason, separating siblings is considered an interference with the children’s right to respect for family life and contrary to their interests.

3. Sample Practices from Judicial Decisions

Father’s Custody: Silivri Family Court (2020/619 E. k) and the 2nd Civil Chamber of the Supreme Court (2014/15044 E. K) ruled that the parties’ intention to grant custody of the common children to the father, in accordance with the protocol, was approved by the court as being in the children’s best interest.

Mother’s Custody: In the decisions of Silivri Family Court (2021/820 E. ) and the 2nd Civil Chamber of the Supreme Court (2023/3015 E. K), custody was granted to the mother in line with the parties’ agreement. Especially for children of an age requiring maternal care and affection, granting custody to the mother is deemed appropriate for the child’s development.

Change of Agreement: The Court of Cassation 2nd Civil Chamber (2016/19196 E. K) has stated that if the parties reach a new agreement regarding custody before the divorce decision becomes final, the court must confirm and evaluate this new will in person at the hearing.

4. Procedural Conditions and Judicial Intervention 

For the custody arrangement to be valid in an uncontested divorce process, the judge must personally hear the parties and be convinced that their wills have been freely expressed. If a full agreement on custody cannot be reached or if the changes proposed by the judge are not accepted by the parties, the case cannot be concluded as an uncontested divorce and will proceed according to the provisions of a contested divorce. Furthermore, it is a legal requirement to warn the spouse granted custody to provide an inventory of the child’s assets, if any, and to notify the court of any significant changes.

5. Secondary Sources

In Supreme Court decisions, which are considered secondary sources, it is emphasized that custody arrangements pertain to public order and that the judge has a duty to investigate ex officio (on their own initiative). In this context:

Children of Discernment: It is stated that children who have reached a certain maturity (age of discernment) should be personally consulted about where they wish to live and should be informed about their education, culture, and life preferences.

Expert Reports: It is stated that when making a custody decision, a social investigation report must be obtained from an expert committee consisting of psychologists, pedagogues, and social workers, and the parents’ housing, income, and psychological conditions must be investigated.

Best Interest Principle: It is reminded that regardless of the will of the parties, in case of a conflict between the child’s interest and the parents’ interest, the child’s interest will be given precedence, and economic status alone will not be a determining factor for custody.

Conclusion In a consensual divorce, the child is given to the party agreed upon in the protocol; however, for this decision to become final, the judge must confirm that the arrangement is suitable for the child’s physical and mental development (in the child’s best interest). Even after a consensual divorce, a change of custody can always be requested under changed circumstances; since custody decisions do not constitute a final judgment.

Anlaşmalı boşanmada velayeti anne ve baba serbestçe belirleyebilir mi?

Kural olarak evet, ancak bu serbesti sınırsız değildir. Taraflar velayeti protokolde anneye veya babaya bırakabilir; fakat hâkim, bu düzenlemeyi çocuğun üstün yararına aykırı bulursa onaylamayabilir. Yargıtay’a göre tarafların iradesi, hâkimi bağlamaz; nihai belirleyici kriter çocuğun bedensel, ruhsal ve ahlaki gelişimidir.

Hakim, anlaşmalı boşanma protokolündeki velayet düzenlemesini değiştirebilir mi?

Evet. TMK 166/3 ve yerleşik Yargıtay içtihatları uyarınca hâkim; velayet, kişisel ilişki ve iştirak nafakasına ilişkin düzenlemelerde re’sen (kendiliğinden) müdahale edebilir.
Hakimin önerdiği değişiklik taraflarca kabul edilmezse, dava anlaşmalı boşanma olarak sonuçlanmaz ve çekişmeli boşanma hükümlerine göre devam eder.

Anlaşmalı boşanma kesinleştikten sonra velayet değiştirilebilir mi?

Evet, her zaman. Velayet kararları kesin hüküm teşkil etmez. Boşanma sonrası koşulların değişmesi (çocuğun yaşı, ihtiyaçları, ebeveynin yaşam koşulları, eğitim durumu vb.) halinde, çocuğun üstün yararı gerektiriyorsa velayetin değiştirilmesi davası açılabilir. Bu hak, anlaşmalı boşanma yapılmış olmasıyla ortadan kalkmaz.

Why is Expert Legal Support Necessary?

Although consensual divorce may seem like a quick and easy process on the surface, it can lead to serious and difficult-to-remedy legal consequences, especially regarding custody arrangements. In practice, the most common loss of rights arises from parties preparing the protocol without legal assistance.

Custody is a Matter of Public Policy

Custody is not a matter left solely to the private will of the parties. According to the established jurisprudence of the Court of Cassation, custody concerns public policy and is reviewed ex officio by the judge. Therefore

Even if written in the protocol

Even if explicitly accepted by the parties, arrangements contrary to the child’s best interest may be rejected by the court. This situation may lead the uncontested divorce to turn into a contested divorce.

Most Common Mistakes

When expert uncontested divorce lawyer support is not obtained, the following risks are frequently observed in practice

The custody arrangement not being approved by the judge

Siblings being separated unlawfully

The child’s opinion not being taken at all

Alimony and personal relationship arrangements being incomplete or vague

Having to file long and exhausting custody modification lawsuits after the divorce becomes final

These mistakes can extend the process, which is expected to conclude quickly, over years.

Tuzla – Anatolian Side Focused Expertise

In family law cases, especially those handled by a Tuzla divorce lawyer, a Tuzla uncontested divorce lawyer, or cases within the regions of Kartal, Pendik, Tepeören, Gebze, and generally the Anatolian Side of Istanbul, it is crucial to be well-versed in the courts’ varying practices and established precedents.

Each Family Court;

Custody,

Personal relationship with the child,

may show different sensitivities regarding alimony and the language of the protocol. Therefore, it is of great importance that the case is handled by an Istanbul uncontested divorce lawyer who is familiar with the regional practice.

Safe Process with 2M Law Office

2M Law Office, in uncontested divorce and custody cases;

in accordance with Article 166/3 of the Turkish Civil Code,

in compliance with Supreme Court precedents,

verifiable by judicial review,

by preparing robust and foresighted protocols that minimize future litigation risk, thus preventing clients from suffering loss of rights. Even after an uncontested divorce, custody decisions do not constitute a final judgment. However, a poorly drafted protocol can lead to unnecessary lawsuits, psychological distress, and instability for the child. For this reason, in every uncontested divorce case involving custody, expert legal support is not an option, but a necessity.