Press Release No: Individual Application 85/21
Press Release concerning the Judgment Finding a Violation of the Right to Respect for Family Life due to the Joint Custody of the Child
On 6 October 2021, the First Section of the Constitutional Court found a violation of the right to respect for family life, safeguarded by Article 20 of the Constitution, in the individual application lodged by Hilal Erdaş (no. 2018/27658).
The applicant and E.E. have a child in common. The 4th Chamber of the Family Court ordered that the parties would get an uncontested divorce and the custody of the child would be granted to the father.
The applicant initiated proceedings before the 6th Chamber of the Family Court (“the court”), requesting the change of custody. A social investigation report was issued in the course of the proceedings. The relevant report was drawn up after interviewing the parents and the child, but the opinions of the parents were not taken as regards the joint exercise of custody. The court held that the custody would be entrusted to the applicant and a personal relationship would be established between the father and the child. E.E. appealed the court’s decision. The Regional Court of Appeal (“the appellate court”) decided, with no right of further appeal, that the custody of the child would be exercised jointly, that the child would live with his father, and that a personal relationship would be established between the child and the applicant.
The Applicant’s Allegations
The applicant claimed that the right to respect for family life had been violated on account of the decision ordering the joint exercise of the custody of the child in common by the parents.
The Court’s Assessment
In the present case, the parents divorced by mutual consent, and the custody of the child was entrusted to the father. At the end of the proceedings initiated by the applicant seeking the change of custody, it was held that the custody would be exercised jointly by the parents.
Pursuant to the relevant legislation, namely the Turkish Civil Code no. 4721, as a rule, parental custody shall be exercised by the parents jointly during the period when they are still married, while one of the spouses shall be granted the custody in the event of separation or dissolution of marriage. However, the relevant legislation contains no regulation stipulating that the custody shall be exercised jointly by the parents in case of separation or dissolution of marriage. Nevertheless, in consideration of Article 5 of Protocol no. 7 of the European Convention on Human Rights (“the Convention”) ratified by Law no. 6684 and the pertinent case-law of the Court of Cassation, parents may jointly exercise the custody of child, if they have separated or divorced. On the other hand, it appears that the procedures and principles regarding the joint exercise of custody by the parents or the termination of such practice are not separately and explicitly regulated in the relevant legislation. In addition, within the scope of Law no. 6684 and the Court of Cassation’s case-law, in the particular circumstances of the case, the joint exercise of custody by the parents shall comply with the constitutional guarantees regarding the right to respect for family life, provided that it is not against the child’s best interest. Besides, it should be noted that the primary objective in cases related to custody and establishment of personal relationship is to determine what serves the best interest of the child by considering the claims of the parties as well as the available evidence. Indeed, a fair balance is to be struck between the parents’ interests and the child’s interests, in pursuance of the best interest of the child.
Considering the proceedings as a whole, it has been observed that the applicant did not consent to the implementation of the joint custody procedure and explicitly raised an objection in this regard, and that the father did not apparently request the joint exercise of custody.
Regard being had to the fact that the priority of both parties was to ensure their entitlement to custody of the child, it can be said that the parents had disputes regarding the exercise of custody and that thus the joint exercise of custody might cause conflict between the parties. It has been observed that the appellate court failed to take into consideration the said conflict in determining what served the best interest of the child. Nor did it make an assessment as to the effects of the conflict on the sustainability of joint custody and the psychological development of the child.
Besides, the expert report underlying the court’s decision was issued without taking the parents’ opinions regarding the joint custody of the child, and that the inferior courts failed to investigate whether the parents consented to the joint exercise of custody. It has therefore been understood that the issue as to whether the joint custody served the best interest of the child was not examined and evaluated sufficiently.
In addition, although it was found established on the basis of the expert report that the child stayed with the applicant on the weekdays during the school term and the former’s needs were mainly met by the applicant, as also acknowledged by the inferior court, the appellate court failed to consider this issue in terms of the establishment of personal relationship.
Regard also being had to the fact that the appellate court, which held that the child would stay with the applicant from Monday morning until Thursday morning, did not clarify why it changed the actual practice to which the child was accustomed, it cannot be said that applicable measures were taken so as to establish the personal relationship between the parent and the child, taking into account the circumstances surrounding the child and the parents.
It has been concluded that whether the appropriate conditions had been met regarding the joint exercise of the child’s custody was not investigated sufficiently in the course of the proceedings, as well as that it could not be demonstrated, on the basis of relevant and sufficient grounds, that the measures as regards the joint exercise of custody and the establishment of personal relations were not against the best interest of the child and were applicable. Accordingly, it has been concluded that the judicial authorities failed to carry out the proceedings with due diligence paying regard to the guarantees set forth in the Constitution concerning the right to respect for family life as well as the principle of the best interest of the child.
Consequently, the Court has found a violation of the right to respect for family life.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.