Introduction

This study has been prepared to answer the question, “Is the child’s wish considered in a custody case?” in light of various decisions rendered by the Constitutional Court, the General Assembly of the Court of Cassation, the 2nd Civil Chamber of the Court of Cassation, and the Regional Courts of Justice. All judicial decisions examined fundamentally answer the question as “Yes,” but also reveal that this answer is not absolute and is subject to certain principles and conditions. The study comprehensively addresses the legal basis of the child’s opinion, the fundamental principles in evaluating this opinion, the role of expert opinion, and the obligations of the courts in this regard.

1. Hearing the Child in a Custody Case is Both a Right and an Obligation 

The most fundamental point commonly emphasized in all decisions is that listening to a child of discerning age in custody cases concerning them is both a right for the child and an obligation for the court. The source of this obligation is international conventions considered part of domestic law.

The United Nations Convention on the Rights of the Child (Article 12) and the European Convention on the Exercise of Children’s Rights (Articles 3 and 6) are cited as fundamental reference points in all decisions without exception. The General Assembly of the Court of Cassation (Yargıtay Hukuk Genel Kurulu) has stated, by referring to Article 90 of the Constitution, that international conventions should be applied preferentially.

This principle was summarized as follows in the decision No. 2017/3488 of the 2nd Civil Chamber of the Court of Cassation (Yargıtay 2. Hukuk Dairesi): “Articles 3 and 6 of the European Convention on the Exercise of Children’s Rights and Article 12 of the United Nations Convention on the Rights of the Child stipulate that children of discerning age should be heard on matters concerning them and that due importance should be given to their views.”

Failure to hear the child is considered a procedural deficiency and a sufficient reason for the annulment of the decision. In the Court of Cassation’s decision No. 2016/22353, this obligation was underlined by stating, “issuing a judgment without hearing the common child necessitated its annulment.” 

2. The Fundamental Principle in Custody Cases: “The Best Interests of the Child” Always Takes Precedence

 While the child’s wishes are an important factor, no decision accepts these wishes as the sole and absolute determinant. The fundamental and most important principle observed by courts when rendering their final decision is the “best interests of the child”.

In its decision, the Constitutional Court emphasized the central role of this principle with the statement,  “The determination of what constitutes the best interests of the child is the most important element to be considered in such cases” .

In situations where the child’s wishes conflict with their best interests, the court is obligated to rule in favor of the best interests. As reiterated in many decisions of the 2nd Civil Chamber of the Court of Cassation: “If the child’s best interests require it, it is also possible to rule contrary to their views.” (e.g.: 2015/24504 E., 2017/3575 K.) This principle aims for the child’s “best possible physical, intellectual, and moral development” and takes precedence over the interests of the parents.

3. Application: Age of Discretion, Expert Reports, and Court’s Assessment 

The concept of “age of discretion” and expert support play a critical role in the process of considering the child’s wishes.

Age of Discretion: Courts assess whether the child is at the “age of discretion”, meaning they have the ability to form and express their views. Decisions often indicate that this is generally accepted for children aged 8 and above.

Expert Reports: Courts refer to social investigation reports prepared by “experts in their field such as psychologists, pedagogues, and social workers” to determine the sincerity of the child’s wish, whether it was influenced by possible guidance, and which parent’s custody would be more suitable for the child’s best interest. The Constitutional Court states that decisions “must be based on concrete, objective data obtained from scientific opinions and reports…”.

Listening Method: Decision No. 2018/1072 of the Supreme Court General Assembly of Civil Chambers states that the child does not necessarily have to be heard in court, and “the child’s opinion can also be obtained through other individuals and institutions”. What is important is to create an environment where the child feels safe and can freely express their views.

4. Review and Different Perspectives

When the decisions are examined as a whole, it is seen that the child’s wish in custody cases is a dynamic evaluation process rather than a static rule.

Cases Where the Child’s Wish is Determinative: In some decisions, a child’s clear, insistent, and sincere statement, when supported by expert reports and other evidence, can be determinative in a custody decision. For instance, in the decision numbered 2017/2654 by the Izmir Regional Court of Justice, the child’s statement that “they absolutely did not want to stay with their mother, and did not feel safe” and the consistency of this statement with the expert report, was an important factor in granting custody to the father. Similarly, in the decision numbered 2020/2825 by the 2nd Civil Chamber of the Court of Cassation, it was concluded that custody should be granted to the father on the grounds that “there was no issue contrary to the child’s best interest that would necessitate disregarding their wish” to stay with their father.

Cases Where the Child’s Wish is Disregarded: On the other hand, in cases where the child’s wish is clearly contrary to their best interest, courts do not hesitate to rule against this wish. In the decision numbered 2012/14342 by the 2nd Civil Chamber of the Court of Cassation, custody was granted to the father despite the child’s wish, due to factors such as contradictory statements by the child and the mother’s conduct that led to the divorce. This indicates that the court focuses not only on the child’s statement but also on the circumstances under which the statement was made and the child’s overall best interest.

Principle of Non-Separation of Siblings: In some decisions, the principle of non-separation of siblings emerges as another important factor considered alongside the child’s individual wish. Courts tend not to separate siblings unless there is a compelling reason.

Conclusion

In light of the judicial decisions reviewed, the answer to the question, “Is the child’s wish taken into consideration in custody cases?” is a definitive “Yes”. However, this implies a complex evaluation process that extends beyond a simple statement of preference, encompassing legal and psychosocial dimensions.

In summary:

Duty to Listen: Listening to the child of discerning age is guaranteed by international conventions and is an obligation for courts.

Priority of the Child’s Best Interest: The child’s wish is not the sole and absolute determining factor. The final decision is always made according to the principle of “the child’s best interest”.

Comprehensive Evaluation: When making its decision, the court evaluates the child’s statement; expert reports, the parents’ social and economic conditions, the child’s relationship with siblings, and all other evidence as a whole.

Reasoned Decision: Regardless of whether it aligns with the child’s wish, the court is obliged to explain, with concrete and sufficient reasons, why its decision is more suitable for the child’s best interest.

In conclusion, the Turkish judicial system regards the child not as a passive object in custody cases, but as an active individual who must participate in the process and whose views are valued. However, this participation is balanced in a way that protects the child’s best interests without burdening them with the responsibility for the final decision. A paper suggestion.

Why is Tuzla Lawyer Support Necessary?

Custody cases involve not only emotional but also technical and legal processes. In cases filed in regions such as Istanbul Tuzla, Pendik, Kartal, Maltepe, Gebze, Aydınlı, and Orhanlı, working with a Tuzla lawyer who is familiar with local judicial practices can directly affect the outcome of the case.

A specialist lawyer ensures that no procedural errors are made during the process of taking the child’s testimony. An Istanbul Pendik lawyer, Tepeören Lawyer, Orhanlı Lawyer, Darıca Lawyer, Aydınlı Lawyer, Bayramoğlu lawyer, or Maltepe lawyer with local experience knows how to object to expert reports. Kartal lawyer and Gebze lawyer support ensures that the file is technically presented strongly during the appeal stage, if necessary. A Tuzla divorce lawyer specializing in family law ensures that the case is guided correctly from the outset, saving both time and preventing loss of rights.