Introduction

This study analyzes the principles for determining child custody and establishing personal relations (visitation/contact rights) between the child and the non-custodial parent, in light of the presented Supreme Court and Constitutional Court decisions. The analyzed decisions consistently demonstrate that the fundamental and indispensable principle in custody and personal relations arrangements is “the child’s best interest.” This principle aims to ensure the child’s optimal physical, mental, psychological, moral, and social development and requires prioritizing the child’s interest when it conflicts with the parents’ interests.

The Fundamental Principle is “The Child’s Best Interest”: In all decisions, the child’s interest is at the center of custody and personal relationship arrangements. Factors such as parents’ fault, social and economic status are only considered to the extent that they affect the child’s best interest (Supreme Court 2nd Civil Chamber, 2016/16043; 2023/8381).

Multi-faceted Assessment is Essential in Custody Decisions: When making decisions, courts holistically evaluate many factors, such as the opinion of the child old enough to comprehend, their age (especially whether they need maternal care and affection), not separating siblings, parents’ living conditions, their ability to actually perform custody duties, and expert (psychologist, pedagogue, social worker) reports.

Personal Relationship (Visitation Right) is an Obligation and a Right: It is a legal obligation for the court to establish a personal relationship between the child and the non-custodial parent when granting custody to one parent. Failure to make this arrangement is a ground for reversal (Court of Appeals, 2nd Civil Chamber, 2007/10304; 2010/16249).

Personal Relationship Must Be Meaningful and Enforceable: The established personal relationship must be suitable for satisfying the parenting feelings of the non-custodial parent, covering a sufficient duration (including overnight stays), and should not create difficulties in execution. Restrictions such as supervision by an escort or a third person can only be applied in mandatory cases and when the child’s best interest requires it (Court of Appeals, 2nd Civil Chamber, 2017/6964; 2014/12649).

Decisions Can Be Readjusted According to Changing Circumstances: Decisions regarding custody and personal relationships do not constitute a final judgment. Significant changes in the child’s age, education, health status, or the parents’ circumstances allow for a lawsuit to be filed for the readjustment of these decisions (Court of Appeals, 2nd Civil Chamber, 2016/14596).

A. Criteria for Determining Custody

Court decisions emphasize that custody arrangement is not merely a dispute between parents, but that the child’s future is paramount. In this context, the main criteria considered by the courts are as follows:

Principle of the Child’s Best Interest: This principle, beyond being an abstract concept, must be supported by concrete facts. The Court of Cassation defines this principle as follows: “When determining the child’s best interest; the aim is to ensure their physical, mental, psychological, moral, and social development. The parents’ interests, their faults in divorce, moral value judgments, and social statuses are taken into consideration only to the extent that they do not affect the child’s best interest.” (Supreme Court 2nd Civil Chamber, 2015/23134).

Taking the Child’s Opinion: In decisions that also refer to the United Nations Convention on the Rights of the Child, it is stated that the opinion of a child who has reached the age of understanding should be taken regarding custody matters directly concerning them, and importance should be given to this opinion. Even if the court is not bound by the child’s statement, it must justify its decision if it rules contrary to this statement (Supreme Court 2nd Civil Chamber, 2013/2558; 2015/22526).

Non-Separation of Siblings: In judicial precedents, it is accepted that siblings’ custody should be granted to the same parent, unless their best interests require otherwise, due to the positive effect of sibling togetherness on their psychological development (Supreme Court 2nd Civil Chamber, 2013/9516). Arrangements for personal relationships that would prevent siblings from seeing each other are also found to be unlawful (Supreme Court 2nd Civil Chamber, 2013/11409).

De Facto Situation and Expert Reports: Courts use de facto situations, such as with whom the child has stayed during the lawsuit and whether they are content with their current arrangements, along with expert reports evaluating parents’ housing, social, and psychological conditions, as important evidence in their decisions (Supreme Court 2nd Civil Chamber, 2016/10419; 2014/12939).

B. Regulation of Personal Relationship (Visitation Rights)

Personal relationship is not only a right of the non-custodial parent, but also an institution that is necessary for the child to maintain their bond with the other parent and serves the child’s best interest.

Purpose and Scope: The purpose of personal relationship, as stated by the Supreme Court of Appeals, is “to ensure the child’s intellectual and physical development, as well as the satisfaction of maternal and paternal feelings.” (Supreme Court of Appeals 2nd Civil Chamber, 2014/12649). Arrangements that do not serve this purpose, are very short-term or restricted, are considered grounds for reversal. In decisions, it is emphasized that a relationship suitable for satisfying paternal/maternal feelings and of sufficient duration should be established, especially if the child’s age is appropriate, including overnight stays (Supreme Court of Appeals 2nd Civil Chamber, 2016/9556; 2023/6891).

Principle of Unaccompanied and Direct Contact: It is an exceptional situation for a personal relationship to be established under the accompaniment or supervision of the custodial parent or another person. The Supreme Court of Appeals, stating that such an arrangement “would contradict the purpose of strengthening the bonds between the child and the non-custodial father,” reversed a personal relationship provision established “accompanied by the mother or a companion to be determined by the mother” and removed this phrase from the decision (Supreme Court of Appeals 2nd Civil Chamber, 2017/6964).

Requirement for Specificity and Enforceability: Court decisions must be clear and explicit to leave no room for doubt during enforcement. It is mandatory for the judgment to clearly indicate on which days and at what times the personal relationship will begin and end. The Court of Cassation emphasized the importance of this principle by stating, “It is contrary to procedure and law to render a written judgment without specifying the days and duration of the personal relationship established between the child whose custody is given to the mother and the defendant.” (Court of Cassation 2nd Civil Chamber, 2007/10304). Decisions usually establish detailed and concrete schedules for weekends, religious and national holidays, semester breaks, and summer vacations (Court of Cassation 2nd Civil Chamber, 2023/10193; 2017/4354).

Inability to Make Gradual Arrangements for the Future: Courts must make a decision based on existing conditions. It has been found unlawful to make a gradual personal relationship arrangement in advance (e.g., increasing as the child gets older) by assuming conditions that may change in the future. The Court of Cassation stated, “Since future conditions cannot be known in advance, it is inappropriate to arrange a gradual personal relationship between the joint child and the defendant father at this time, and this necessitated reversal.” (Court of Cassation 2nd Civil Chamber, 2016/14596).

Conclusion

The reviewed court decisions clearly demonstrate that the approach adopted by Turkish law regarding custody and personal relationship matters is “child-centered” . Courts are obligated to find solutions that will ensure the child’s physical, emotional, and social development at the highest level, rather than focusing on the parents’ demands and conflicts. In this process, taking the child’s opinion in an age-appropriate manner, preserving their bond with siblings, and utilizing expert opinions constitute the cornerstones of a fair decision made in the child’s best interest. The right to personal relationship, on the other hand, is not considered a consolation prize for the non-custodial parent, but rather a part of the child’s right to establish a healthy and regular relationship with both parents, and it is consistently emphasized that this right must be established in a meaningful, sufficient, and practicable manner. A writing suggestion.

Why is the Support of an Expert Family Law Attorney Necessary?

Custody and personal relationship cases are complex processes that must be conducted not only with legal knowledge but also with a careful evaluation of psychological and social factors. Working with an expert family law attorney in this field is of great importance to correctly establish the child’s best interest, present evidence completely, and make an effective defense in court.

In custody and personal relationship cases seen especially in regions like Istanbul, Tuzla, Pendik, Kartal, Gebze, Tepeören, İçmeler, Aydınlı, Bayramoğlu and Şifa Mahallesi; an experienced custody lawyer who is familiar with local court practices and precedents ensures the process is managed correctly. A professional Tuzla lawyer or Gebze family law lawyers creates a roadmap that both considers the child’s best interests and protects the rights of the parties.

Since the right legal strategy will directly impact the child’s future, receiving support from an experienced afrom a family law lawyer in this field will be the healthiest approach for both parents and the child.