International Conventions, Enforcement Obstacles, and Supreme Court Practice

1. Fundamental International Conventions in the Recognition and Enforcement of Custody Decisions

According to Supreme Court decisions, for custody decisions obtained from foreign courts to take effect in Turkey, it is mandatory to consider the international conventions to which Turkey is a party, primarily during the recognition and enforcement processes. The fundamental texts highlighted in this scope are:

1980 Luxembourg Convention: “European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children” (20.05.1980) is the most frequently applied international document in the enforcement of custody decisions. The Supreme Court emphasizes that in decisions obtained from states party to this convention (e.g., France, Germany, Austria), the provisions of the convention must be directly applied (2nd Civil Chamber, 2012/15213; 2015/787).

1996 Hague Convention: “Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children” (19.10.1996) finds application particularly in custody arrangements of a provisional injunction nature (2nd Civil Chamber, 2023/8407).

Protocol No. 7 to the ECHR: This protocol, which regulates that spouses have equal rights and responsibilities in their relationships with their children upon the dissolution of marriage, constitutes the fundamental basis for not deeming “joint custody” decisions contrary to Turkish public order (2nd Civil Chamber, 2016/18674; Constitutional Court, 06/10/2021).

Bilateral Judicial Assistance Agreements: Bilateral agreements such as the “Agreement on Judicial Assistance in Legal and Commercial Matters” dated 13.06.1995 between Turkey and Kazakhstan are taken as a basis for evaluating the conditions of reciprocity and enforcement within the framework of Article 54/1-a of the IPPCL (International Private and Procedural Law Act) (2nd Civil Chamber, 2023/7233).

2. Principles of Application of Agreements and Prohibition of Substantive Review

The “prohibition of substantive review” (révision au fond) is a fundamental principle in the application of international agreements. Pursuant to Articles 7 and 9/3 of the Luxembourg Convention, a foreign court decision cannot be subjected to substantive review in any way; the court cannot re-evaluate evidence or scrutinize the correctness of the decision (2nd Civil Chamber, 2004/10683).

3. Obstacles and Restrictions to Recognition and Enforcement

The main issues that may lead to the refusal of an enforcement request within the framework of agreements and judicial precedents are as follows:

Notification and Right to Defense: According to Article 9/1-a of the Luxembourg Convention, the failure to serve notification within a period that allows the defendant to present a defense in decisions rendered in their absence is a ground for rejecting the request for enforcement (2nd Civil Chamber, 2014/19749K).

Public Policy Exception: Article 10/1-a of the Convention stipulates that enforcement may be refused if the effects of the decision are clearly incompatible with the fundamental principles of family and child law of the requested state. However, the Court of Cassation accepts that arrangements such as “joint custody” are no longer clearly contrary to Turkish public policy (2nd Civil Chamber, 2016/18674).

Lis Pendens: According to Article 10/2-b of the Luxembourg Convention, if there is an ongoing custody case filed in Turkey before the request for enforcement, the enforcement proceedings may be suspended or rejected (2nd Civil Chamber, 2022/10198).

Age Limit: The provisions of the Luxembourg Convention are not applicable to children who have reached the age of 16. If the child reaches the age of 16 during the appeal review, the court must reassess this situation (18th Civil Chamber, 2015/7759).

4. Competent Court and Procedure

The courts responsible for the recognition and enforcement of custody decisions are, as a rule, Family Courts. However, if the foreign judgment also includes provisions other than custody, such as “appointment of a guardian,” the Civil Courts of First Instance may be responsible for the recognition and enforcement of the part related to the guardian (2. HD., 2009/9739; 2010/1513). Furthermore, the fact that children are not registered with the population in Turkey does not constitute an impediment to the recognition of a foreign judgment concerning custody; since population registrations have a declaratory, not a constitutive, effect (2. HD., 2015/787).

5. Secondary Sources and Additional Context

Decisions classified as secondary sources provide additional context on how the provisions of Law No. 5718 on Private International Law (PIL) (Articles 50, 54, 58) are applied in cases where international agreements are absent or not directly referenced:

Cases Without Treaties (e.g., USA): In decisions obtained from states with which Turkey has no bilateral or multilateral agreement concerning custody (e.g., some states of the USA), an investigation into “legal or de facto reciprocity” (mutuality) is conducted in accordance with Article 54/1-a of the PIL Law (2. HD., 2015/17869; 2024/1712).

Public Order Assessment: In decisions obtained from countries such as the Netherlands and Belgium, it has been stated that the absence of a custody provision in the foreign judgment or the representation of parties by the same lawyer in a consensual divorce does not “explicitly” contravene Turkish public order and does not impede recognition (2. HD., 2023/6109; 2022/9092).

Partial Enforcement: It has been emphasized that if the custody part of a foreign judgment is found to be contrary to Turkish law (e.g., the joint custody prohibition at that time), it is possible to partially enforce the part of the judgment related to divorce (2. HD., 2014/7356).

Why is Expert Legal Support Necessary?

Within the framework of international agreements, the recognition and enforcement of foreign custody decisions is not a simple judicial process that concludes merely by filing a petition. The Luxembourg Convention, the 1996 Hague Convention, Protocol No. 7 to the ECHR, and the provisions of the PILPA are evaluated together; for each case, highly technical criteria such as enforcement obstacles, public policy review, lis pendens, right to defense, and reciprocity are examined separately.

Specifically;

Determining which international convention should be applied primarily,

Despite the prohibition of examination on the merits, establishing the public policy objection within the correct limits,

Presenting joint custody, interim injunctions, or temporary protection orders in accordance with current Supreme Court precedents,

Preventing the risk of rejection of enforcement due to incorrect application or custody remaining suspended,

can only be properly managed by an experienced lawyer in this field.

At this point, 2M Law Firm, with its operations based in Istanbul, primarily in Tuzla, Pendik, Kartal, Kadikoy, and Gebze;
offers its clients strategic and results-oriented legal support, based on current jurisprudence, in the areas of recognition of foreign custody orders, enforcement lawsuits, international family law, and disputes related to child law.

It should not be forgotten that a single procedural error in international custody cases can directly affect the child’s legal status and the parent-child relationship. Therefore, it is essential that the process be carried out with the support of an expert lawyer and in accordance with the practices of the Court of Appeals, for both legal security and the child’s best interests.