Conditions for Enforcement, Public Order Review, and Supreme Court Practice
1. General Principles and Legal Basis
According to Supreme Court decisions, for a custody decision rendered by a foreign court to be enforceable in Turkey, it is dependent on an enforcement decision being issued by the competent Turkish court. This matter is explicitly regulated in Article 50/1 of Law No. 5718 on International Private and Procedural Law (MÖHUK). Unless an enforcement decision is obtained, it is not possible for the foreign judgment to produce legal effects or be enforced in Turkey. In the enforcement of custody decisions, in addition to the general provisions of MÖHUK, international conventions to which Turkey is a party (especially the 1980 European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children/Luxembourg Convention) are primarily taken into consideration.
2. Analysis of Enforcement Conditions
According to the established jurisprudence of the Supreme Court’s 2nd Civil Chamber, for the enforcement of a custody judgment, the following conditions stipulated in Article 54 of MÖHUK must be cumulatively met:
Reciprocity: There must be an agreement, a legal provision, or de facto application based on the principle of reciprocity between the Republic of Turkey and the state where the judgment was rendered (IPCL Art. 54/1-a). The Court of Cassation (Yargıtay) requires a detailed investigation, particularly for judgments rendered in different states of the USA (New Jersey, North Carolina, Arkansas, Texas), through the Ministry of Justice and the Ministry of Foreign Affairs, into whether Turkish court judgments are enforced in that specific state.
Exclusive Jurisdiction and Connection: The judgment must have been rendered in a matter that does not fall within the exclusive jurisdiction of Turkish courts. Furthermore, in the event of an objection by the defendant, the judgment must not have been rendered by a state court that has no genuine connection with the parties.
Not Contravening Public Order: The judgment must not clearly contravene Turkish public order. The Court of Cassation emphasizes that public order review is not a “review of appropriateness” (révision au fond) and that the substantive correctness of a foreign decision cannot be examined.
Respect for the Right to Defense: The defendant must have been duly summoned to the court that rendered the judgment, must have been represented, and no judgment contrary to law must have been rendered in their absence (IPCL Art. 54/1-c).
3. Special Circumstances Specific to Custody Decisions
Joint Custody and Public Order: In the Supreme Court’s earlier decisions (e.g., decisions from 2006 and 2014), it was accepted that custody should be granted to one of the spouses in case of divorce, in accordance with Article 336 of the Turkish Civil Code, and that the arrangement of “joint custody” was contrary to Turkish public order. However, in current jurisprudence (decisions of the Constitutional Court and the 2nd Civil Chamber of the Supreme Court from 2017 and later), in accordance with Protocol No. 7 to the ECHR and Article 90/last paragraph of the Constitution, it is accepted that joint custody will not be considered contrary to Turkish public order, unless it is against the best interests of the child.
Partial Enforcement: Even if the part of the foreign judgment related to custody is found to be contrary to Turkish law or public order, enforcement of other parts of the judgment (e.g., divorce) is possible (Private International Law and Procedural Law Act Art. 56).
Age Limit: In accordance with the Council of Europe Convention, the provisions of the convention cannot be applied to children who have reached the age of 16; in such a case, the court must re-evaluate.
Lis Pendens Obstacle: If there is a custody case filed and ongoing in Turkey before the request for enforcement, enforcement proceedings may be suspended or rejected in accordance with Article 10/b of the European Convention.
4. Procedure and Required Documents
The enforcement case is subject to simple trial procedure, and a hearing is mandatory. In accordance with Article 53 of the Private International Law and Procedural Law Act, the following documents must be attached to the petition:
The duly approved original or copy of the foreign court judgment.
A duly approved document or certificate showing that the judgment has become final (Certificate of Finality).
Apostille.
Duly approved Turkish translations of all documents.
5. Secondary Sources and Additional Context
Decisions of first instance courts and regional courts of appeal, which are secondary sources, along with some Court of Cassation chamber decisions, provide the following additional contexts regarding the process of enforcing custody orders:
Relationship with Alimony/Maintenance: Although alimony and custody decisions usually appear in the same judgment, it is also mandatory to obtain an enforcement decision for the execution of alimony decisions in accordance with MÖHUK Art. 50; international conventions (1956 New York, 1958/1973 Hague) do not permit direct enforcement but stipulate an enforcement procedure.
Notification Procedure: As emphasized in commercial enforcement decisions, proper notification of proceedings in foreign courts (especially within the framework of the 1965 Hague Service Convention) is critical for the protection of the right to defense. Notifications made by mail may be deemed invalid in some cases due to Turkey’s reservation.
Party Formation: In an enforcement lawsuit, it is mandatory that all parties involved in the foreign judgment are also designated as parties in the lawsuit in Turkey, to ensure proper party formation; otherwise, the lawsuit may be dismissed on procedural grounds.
Conclusion: Court of Cassation jurisprudence subjects the enforcement of custody orders to strict formal conditions and public order review. Specifically, the investigation of reciprocity and the analysis of public order within the framework of the child’s best interests are central to the proceedings. In cases where reciprocity is not found or the right to defense is violated, the enforcement request is denied. A publication suggestion.
Why is Expert Legal Support Necessary?
The **enforcement of custody decisions** rendered by foreign courts is one of the most frequently erred and most often met with **rejection on procedural grounds** lawsuit types in practice. The enforcement process is not merely the introduction of a court decision; it involves multi-layered legal evaluations such as **reciprocity investigation**, **public order control**, **whether the right to defense is protected**, **priority of international treaties**, and the **best interest of the child**.
Specifically;
Failure to properly investigate **reciprocity at the country or state level** where the decision was rendered,
Incorrect evaluation of whether joint custody, alimony, or interim injunction provisions are suitable for **partial or full enforcement**,
Failure to treat deficiencies in the notification procedure as a **violation of public order**,
Overlooking the **objection of lis pendens** due to an ongoing case in Turkey,
can lead to the rejection of the enforcement request and irreparable loss of rights.
For this reason, it is of great importance that custody enforcement cases are handled by a lawyer who is **familiar with current Supreme Court precedents and international treaties** and has practical experience. At this point, **2M Law Firm** provides its clients with **strategic, up-to-date, and results-oriented** legal support in the fields of recognition and enforcement of foreign court decisions, international family law, and custody disputes.
It should not be forgotten that a single procedural error in child custody enforcement cases can directly affect the child’s legal status and the parent-child relationship. Therefore, conducting the process with the support of an expert lawyer and in accordance with Supreme Court precedents is indispensable for both legal certainty and the child’s best interest.
