Legal Status of Custody and the Necessity of an Independent Lawsuit in Cases Where Custody Provisions are Absent or Not Enforced During the Recognition/Enforcement Process of Foreign Court Divorce Decrees
1. The Concept of Custody Remaining “Suspended” or “Left Vacant”
Supreme Court precedents consistently hold that despite a divorce decree issued by a foreign court being recognized in Turkey, if it does not contain a provision regarding custody, or if an existing custody provision is found to be contrary to Turkish public order and therefore not enforced, custody will be considered “suspended” or “left vacant” under Turkish law.
17th Civil Chamber of the Supreme Court (2009/10927 E., 2010/593 K.)K: In a situation where the German Court’s divorce decree was recognized but there was no provision regarding custody, it was explicitly stated that “the issue of custody for the child was suspended.”
20th Civil Chamber of the Supreme Court (2016/10693 E., 2016/9660 K.): In cases where custody was not regulated in the foreign court’s decision, or where the regulated provision was not enforced, it determined that “custody was left vacant.”
5th Civil Chamber of the Supreme Court (2024/369 E., 2024/3972 K.): Due to the Strasbourg Court’s divorce decree being recognized but not containing a custody provision, it concluded that “the custody of the minor was suspended.”
2. Relationship Between Public Order and Partial Recognition/Enforcement
In Turkish law, the regulation of custody is a matter of public order. The absence of a custody provision in a foreign court decision does not prevent the recognition of the divorce decree; however, this situation results in “partial recognition and enforcement” s.
Court of Appeals, 2nd Civil Chamber (2011/21713 E., 2012/22140 K.): It was emphasized that the lack of a ruling on custody does not constitute an “explicit violation” of Turkish public order, and that this deficiency can always be remedied by a separate lawsuit, thus a recognition and enforcement decision should be issued for the divorce aspect.
Court of Appeals, 17th Civil Chamber (2009/10926 E., 2010/592 K.): It was stated that if the custody arrangement is deemed contrary to Turkish public order (e.g., rejection of joint custody in the practice of that period), only the divorce portion of the decision could be enforced, while the custody portion would remain outside enforcement.
3. Necessity of Filing an Independent Custody Lawsuit
The recognition of a foreign court decision and the regulation of custody, which is not included in that decision or not enforced, are legally classified as “separate lawsuits”. When custody remains pending, the judge is obliged to grant custody to one of the spouses, in accordance with Article 336 of the Turkish Civil Code (TMK).
Nature of the Lawsuit: The Court of Appeals, 2nd Civil Chamber (2016/18398 E., 2016/15709 K.), stated that in such cases, the lawsuit to be filed is not for “change of custody”, but rather a lawsuit for “regulation of custody”, and that the court should collect evidence according to this classification.
Ex Officio Regulation and Notification: Due to custody concerning public order, the court rendering the recognition/enforcement decision must notify the relevant authorities (Family Court or Public Prosecutor’s Office) to arrange for custody (Supreme Court 17th Civil Chamber, 2009/10925 E.).
Maintenance and Personal Contact: It has been ruled that child maintenance cannot be awarded without a custody arrangement (Supreme Court 2nd Civil Chamber, 2014/23797 E.) and that a personal relationship established while custody is suspended would be contrary to procedure, requiring custody to be arranged ex officio first (Supreme Court 2nd Civil Chamber, 2012/15408 E.) .
4. Competent and Authorized Court
In cases concerning the arrangement of custody, Family Courts are competent in accordance with Law No. 4787. Regarding jurisdiction, the child’s place of residence and the provisions of MÖHUK are taken as a basis.
Jurisdiction Rules: Pursuant to Article 41 of MÖHUK Law No. 5718; in cases concerning the personal status of Turkish citizens, the court with territorial jurisdiction in Turkey, otherwise, the place of residence of the person concerned, if that is not available, the last place of residence, and if that also cannot be found, the courts of Ankara, Istanbul, or İzmir are authorized (Supreme Court 17th Civil Chamber, 2013/1224 E.K).
Absence of Absolute Jurisdiction: The 5th Civil Chamber of the Supreme Court (2022/6325 E.) stated that there is no absolute jurisdiction rule in cases for the arrangement of custody, and that unless invoked by the defendant as a preliminary objection, the court where the lawsuit was filed would remain competent.
5. Secondary Sources and Special Cases
The following points have been considered secondary sources due to containing limited information or evolving views in the judgment texts:
Joint Custody and Public Order Change: While in past decisions (Court of Cassation 2nd Civil Chamber, 2003/2818 E.), joint custody was found to be contrary to Turkish public order and not enforced; in more recent decisions (Court of Cassation 2nd Civil Chamber, 2016/18674 E. and Constitutional Court Hilal Erdaş Decision), it is observed that a trend has emerged indicating that joint custody is no longer considered “explicitly contrary” to public order and can be recognized, in accordance with ECHR Additional Protocol No. 7 and Article 90 of the Constitution.
Hague Convention and International Notification: The 2nd Civil Chamber of the Court of Cassation (2014/24600 E.) pointed out that if a foreign court has ruled for divorce, making a custody arrangement without notifying the relevant foreign authorities and conducting necessary investigations, in accordance with the 1961 Hague Convention, might be contrary to the convention.
Conclusion: The absence of a custody provision or its non-enforcement in a foreign court decision creates a legal void (suspension) regarding custody in Turkey. To remedy this void, it is a legal necessity to file an independent “custody arrangement” lawsuit in the competent Family Court, taking into account the child’s best interests and public order.
Why is Expert Legal Assistance Necessary in Foreign Divorce and Custody Cases?
In the process of recognition or enforcement of foreign court divorce decrees, the absence of a custody provision or the non-enforcement of a custody provision regarding custody is one of the areas that most frequently leads to a loss of rights in practice. As explicitly accepted in Supreme Court jurisprudence, in this situation, custody remains “suspended” under Turkish law and does not automatically transfer to either parent. However, this legal consequence is often overlooked in practice.
The legal natures of a recognition-enforcement lawsuit and a custody arrangement lawsuit are entirely different. Filing with the wrong type of lawsuit, initiating a “change of custody” lawsuit, incorrectly determining the competent–authorized court, or inadequately addressing the public policy dimension can lead to the dismissal of the case, prolongation of the process, and the child’s legal status remaining uncertain.
Specifically;
the incorrect distinction of partial recognition/enforcement,
making demands for alimony or personal relations while custody is suspended,
the incorrect application of jurisdiction rules within the scope of MÖHUK article 41,
the disregard of the Hague Convention and international notification obligations
such issues are not merely procedural errors, but can lead to outcomes that directly harm the child’s best interests.
Therefore, in divorce and custody cases with foreign elements; obtaining the support of an expert lawyer who is proficient in the current jurisprudence of the Supreme Court, knowledgeable in the practical application of international conventions, and capable of properly managing the public order aspect of custody, is not a legal preference but a **necessity**. Only in this way, in situations where custody is pending, can a permanent solution be provided with the right court, the right type of lawsuit, and the right legal grounds.
