T.C.
SUPREME
LAW OFFICE
2016/15771 E. 2017/1737 K. 20.2.2017 T
CASE: The decision given by the local court at the end of the decal between the parties, the date and number shown above, was appealed by the plaintiff’s father, the document was read and discussed and considered as necessary:
VERDICT : The parties are British citizens. The plaintiff father is the joint child Chelsea Lynsey B. Born on 24/10/2003, born out of wedlock.he wanted the joint arrangement of custody by giving the custody of the mother and father.
In summary, the Court decided to dismiss the case on the grounds that joint custody arrangement is contrary to Turkish public order, even if it is possible to arrange joint custody in terms of children born out of wedlock in accordance with the national law of the parties.
The provisions of the robbery are subject to the law establishing the robbery. However, if there is a common national law of the mother, father and child, that law applies to the provisions of the robbery, and if there is no common customary law applies (MÖHUK m. 17/1 ).
If the provision of the authorized foreign law applied to a particular event is clearly contrary to the Turkish public order, this provision is not applied; if necessary, Turkish law is applied. ( MÖHUK m.5/1 ).
The dispute that needs to be resolved in a concrete case is aimed at determining whether the regulation of “joint custody” is clearly contrary to Turkish public order.
In this regard, first of all, it is necessary to look at the legal regulations in our domestic law. The legal regulations related to our subject in our domestic law are as follows.
When deciding on a divorce or separation, the court regulates the rights of the parents and their personal relationship with the child, after listening to the parents as much as possible and taking the opinion of the guardian and the guardianship authority if the child is under guardianship.
The use of custody in the regulation of the personal relationship of the spouse with the child, which is not given to him, the benefits of the child, especially in terms of health, education and morality, are taken as the basis. This spouse must participate in the maintenance and educational expenses of the child at the rate of his strength ( TMK m. 182/1-2 ).
A child who is not an adult is under the custody of his parents. Custody cannot be obtained from the parents unless there is a legal reason.
Adult children who are restrained also remain under the custody of their parents unless the judge deems it necessary to appoint a guardian (TMK m. 335 ).
As long as the marriage continues, the mother and father use custody together.
If the joint life has been terminated or the separation has occurred, the judge may grant custody to one of the spouses.
Custody belongs to the survivor in the event of the death of one of the parents, and in the event of a divorce, the child belongs to the party left to him” (TMK m.336 ).
If the parents are not married, custody belongs to the mother.
If the mother is small, restricted or dead, or custody has been taken from her, the judge appoints a guardian or gives custody to the father in the best interests of the child (TMK m.337 ).
October March 14, 1985, “Protocol No. 11 and Additional Protocol No. 7 to the Convention on the Protection of Various Human Rights and Fundamental Freedoms” signed on behalf of the Republic of Turkey was published and entered into force in the Official Gazette dated 03/25/2016 and became our internal law, in accordance with the approval of Law No. 6684. October 5 of Protocol No. 7 of Annex 5. according to the article, “spouses are equal in terms of marriage, during the marriage and in the event of the end of the marriage, in dec relations between themselves and their children, in terms of rights and responsibilities that have a special legal nature. This article does not prevent states from taking the necessary measures in the interests of children”.
International treaties that have been duly entered into force are legal. They cannot be appealed to the Constitutional Court with the claim of unconstitutionality about them. In disputes that may arise due to the fact that International Treaties on fundamental rights and freedoms that have been duly enacted and the laws contain different provisions on the same issue, the provisions of the International Treaty are taken as the basis. (The Constitution of the Republic of Turkey m.90/ last ).
After looking at the legal regulation related to domestic law, it will be useful to dwell on the concept of “public order” ( ordre puplic ) for dispute resolution.
It is not easy to make a complete description of it, which will express all the features of public order. Dec jul-de-sacre, “the rules of public order are all institutions and bases that ensure the good performance of public services in a country, the safety and public order of the state, and the compliance with the principles of peace and morality in relations between individuals”. Within this general framework, the rules of public order can be explained as the basic structure of a society and the rules that protect its basic interests. ( Prof. Dr.Aysel Çelikel-Prof.Dr. B. Bahadır Erdem, International Private Law 1l.bass-page:149 ).
In general, aimed at the social development of the legal system which protects personal rights and freedoms and the basic principles of the Constitution and the basic principles and considerations in the current society with custom ahlk, and clearly incompatible with public order and these values represent the values that can be expressed as a provision of foreign law or foreign law will be deemed to be against public policy, it can be said. If the result that foreign law or the provision of foreign law will bring about in practice in a concrete event also creates an intolerable situation in the face of the basic principles and values mentioned above, foreign law will not be applied with a bet because foreign law clearly violates public order. Here we are talking about the “beneficial effect” of public order, which hinders the implementation of foreign law. The concept of public order is broad, vague, arbitrary and variable (Prof.Dr.Cemal Şanlı-Associate Professor.Dr.Emre Esen – Asst.Assoc.Inci Ataman-fIganmeshe, International Private Law-4.Bass-page: 72-73-78 ).
In Turkish law, public order ( ordre puplic, amme intizamı) has an exceptional duty that prevents the application of foreign law. Foreign law authorized by our pedestals has the opportunity to be applied provided that it does not “clearly” contradict the public order of the country (MÖHUK m.5 ). At the moment, public order is not a one-sided “binding pedestal” for us that belongs to the law of the conflict of laws. On the contrary, the conflict of laws is an exception to the principle of application of the foreign legal order shown by our pedestal (Prof.Dr. Ergin Nomer-Prof.Cemal Şanlı, Private Law of the States, 18.bass-page:l59 )
“…The enforcement of a foreign decision cannot be rejected for reasons such as the fact that the law applied on the merits is different from Turkish Law or is contrary to the mandatory rules of Turkish Law. The yardstick that need to be considered here, and a stranger in Turkish law, the provisions of the law was found in violation of one or more VERY, the basic values of the Turkish law, Turkish law, Turkish general manners and morals of basic fairness and the politics of law, fundamental rights and freedoms in the Constitution, the current common and generally accepted legal principles in the international arena, bilateral agreements which have been adopted in developed societies, an understanding of common morality and justice, one must look to the political and economic regime to the level of civilization.”
( dated 10.02.2012 and dated 2010/1 E, 2012/1 K.the Decision of the Court of Cassation on the Unification of Jurisprudence ).
According to the explanations related to our domestic law and the concept of public order mentioned above, it is impossible to say that the organization of “joint custody”, when considering a concrete event, is “clearly” contrary to the Turkish public order or violates the basic structure and basic interests of Turkish society.
In that case, the court, MÖHUK m. 17/1, under the joint custody arrangements for British citizens who are in the National Law of the parties, in considering the basics after evaluating all the evidence that have been entered on “joint custody” should make a decision on the case of the prompt, when the prompt indicating that the order is contrary to Turkish public by the establishment to overturn the provision in written form is required.
CONCLUSION : appeals of provision of the above-described reason, corruption, destruction, according to the appeals of Appeals for now to study other cause, whether she tucks extradition appeal in advance of the mortar is desired, then, present the correction of the decision within 15 days of the receipt of the decision to open the way for 20.02.2017 on the day it was decided unanimously.
