T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
E. 2012/2-799
K.2013/389
T. 20.3.2013
LAWSUIT :
At the end of the trial due to the “custody and alimony of associates” case between the parties; Ankara 5 Dec. 27.04.2010 day and 2009/427 E. issued by the Family Court on the rejection of the original custody case and the acceptance of the counter-claim on the alimony of the subsidiary., 2010/574 K. after the examination of the decision no.is requested by the representatives of the parties, the Supreme Court 2. Law department 05.07.2011 day and 2010/16826 E., 2011/11499 K. with numbered declaration;
(…1-according to the articles in the file, the evidence on which the decision is based, the reasons in accordance with the law, and in particular, there is no error in the evaluation of the evidence, the appeals of the plaintiff-defendant father are unwarranted.
2-as for the examination of the defendant-plaintiff woman’s appeal request;
Born on 7.12.2005, whose custody is in the mother of the defendant-plaintiff. Saturday Sunday from 09.00 to 18.00 on Sunday every weekend between the plaintiff and the defendant father, the establishment of a personal relationship will decisively affect the education, body and intellectual development of the minor as of his age, and the Prohibition of the child’s removal abroad creates an obstacle for the defendant-plaintiff mother to perform her custody duties. It was not correct to establish a provision in writing without taking into account the aspects described… ),
At the end of the re-trial, the court resisted the previous decision in terms of custody.
It was examined by the General Assembly of the law and after it was understood that the decision to resist was appealed during the period and the papers in the file were read, the requirement was discussed:
DECISION :
The main case is custody; the counter case is related to the request for alimony for a subsidiary.
Attorney of the plaintiff-Counter-Defendant ( father), who was born from extramarital relations between his client and the defendant.’i, the plaintiff gave his own surname by recognizing the father, M.’because of the mother’s presence, the little one will not grow up well morally and in many other ways,’ he said, noting that his client’s living conditions are very good.he demanded and sued for custody of his client.
The defendant-counter-plaintiff (mother ) attorney, stating that the plaintiff’s claims do not reflect the truth, has requested with the counter-case that the original case be rejected and the provision of $ 500.00 for the Joint Child.
From the scope of the file; extramarital relations of the parties born 07.12.2005 M. it is understood that they have a daughter named, the plaintiff father recognized the child on 09.06.2006 and registered it in its population, the plaintiff father later married another lady in 2007 and had no children from this marriage yet, the defendant mother is a citizen of a foreign country.
In addition, at the stage of the trial, the court decided to decommission the young child. it was decided to establish a personal relationship between the father of the plaintiff and to prohibit the young child from going abroad.Dec.
Considering the court’s expert report that it would be in the best interest of the child to be with the mother, the refusal of the request to give custody of the Joint child to the plaintiff father in the original case, with the acceptance of the request for personal relationship; the Joint child was born 07.12.2005. T. Sunday Saturday morning 09: 00 Sunday evening 18: 00 every week, second day of religious holidays 09: 00 Morning, third day 18:00 evening, Little M. Dec. July 1 of each year until they are 6 years old in the morning from 09:00 to 20 July evening at 18:00 July 1 after the age of 6 morning 09:00 – 31 July evening at 18:00 in the afternoon of official holidays before 12:00 in the evening, the establishment of a personal relationship between 18.00 hours; the defendant-plaintiff, against ( of the mother ) in terms of the demands of small children 500.00 GBP is designated for alimony after announcing the decision associates, the father of the plaintiff in the same amount taken from the plaintiff and against the defendant in custody to be paid to the mother, the child jointly with M. T.after the decision was finalized, the decision to continue the ban on going abroad was approved by the Special Department on the appeals of the deputies of the parties, but the provision was broken for the reasons mentioned above in terms of personal relationship.
The court;” it cannot be said that a personal relationship with the child every week will negatively affect the development of the child, experts are supporters of ‘joint custody’, which is not regulated in Turkish law, frequent relationships will serve it, the mother is a stranger and may not bring the child abroad again ” on the grounds that the previous decision was resisted in terms of personal relationship.
The provision of alimony for participation in the counterclaim between the parties has been finalized and is decriminalized.
Dispute before the General Assembly of law through resistance;
1-Born 7.12.2005, whose custody is in the mother. Saturday Sundays from 09: 00 to 18: 00 Dec. each weekend between her and her father, whether the establishment of a personal relationship will negatively affect the education, body and intellectual development of the minor as of his age;
2 – whether the decision to ban the child from being taken abroad will prevent the mother from fulfilling her custody duty;
According to the conclusion reached here, the local court collects at its points whether the provision on the regulation of personal relations is in place.
At this point, it is useful for the Local Court to evaluate the grounds for resistance separately.
a ) in the evaluation made in terms of the ban on going abroad;
The ban on the departure of a minor abroad, fearing that the Joint child may be smuggled abroad by the mother, is contrary to the freedom of travel, which is a fundamental right regulated in the 1982 constitution, as well as the violation of the duty of custody belonging to the mother ( m.23 ).
Fundamental rights and freedoms may be limited only for a certain period of time by law, depending on the reasons specified in the relevant articles of the Constitution, without touching their essence ( m.13 ).
23 of the Constitution. according to the article, it is not possible to permanently limit freedom of travel in principle. This freedom can only be limited for a temporary period of time as a precaution for the protection of the child.
Furthermore, October 2 of Protocol No. 4 ( 1968 ) to the European Convention on Human Rights ( Convention for the protection of Human Rights and fundamental freedoms), entitled “Freedom of travel within the country of a state and freedom of departure from its country”. in the second paragraph of the article, ” Everyone is free to leave any country, including his own country.>
If in the third paragraph of the same article; “No restriction shall be placed on the exercise of these rights other than necessary and lawful restrictions in a democratic society for the benefit of national security or public security, for the protection of public order, for the Prevention of crime, for the protection of health or morality, or for the protection of the rights and freedoms of others.”(Harris / O’boyle/Warbrick: Law Of The European Convention On Human Rights, Translators: Mehveş Bingöllü Kilcı-Ulaş Karan, Joint Project On Strengthening The Role Of High Judicial Institutions In Terms Of European Standards, Council Of Europe-Ankara 2013, Sahife: 762) freedom of travel is guaranteed.
In a concrete case, the young child, whose mother is a foreign national but who is a Turkish citizen, is far from any hesitation, where there are no legal conditions that would require the Prohibition of his or her travel freedom.
b) in the assessment of establishing a personal relationship every weekend,;
The right to establish a personal relationship is a right that gives the mother/father and child the right to meet on certain days or hours, to be aware of each other, to be in each other’s lives, to be mutually influenced. This right is a right for the child as well as for the mother/father ( European Convention on the establishment of personal relations with children of 2003 m.4/1 ). In addition to the satisfaction of the feelings of parents in the relationship, the benefit of the child for its physical, intellectual, spiritual, educational, cultural development is also taken into account. If the benefit of the mother/father and the benefit of the child conflict, the advantage of the child is recognized ( Turkish Civil Code 4721 m.182 / II, 325 and 324).
As visiting days, days and periods that will not cause difficulties and problems for the parent and child are preferred. These periods are usually weekends and holidays. If the child spends all weekends with the parent who is not granted custody, it may have inconvenient consequences for both the party with custody and the child. Because, on holidays and weekends, a person feels more comfortable and free from psychological care. For the child to spend these privileged days only on one side; if he spends troubled days with the person who takes custody, it can lead to him moving away from the person who takes custody, cooling off, connecting to the other party.
In such a case, the one who assumes custody may not devote much time to his child, and it may also become difficult for him to properly fulfill his duty of education and upbringing. In addition, in case of divorce, the child may have difficulty perceiving that his parents are divorced.
If so, it is their most natural right that people can be together with their children on weekends and holidays, when they are more suitable in terms of time and feel more comfortable, to share this beauty and decency.
On the other hand, because of the child left with the parent who is not in custody every weekend, he will be unable to plan weekends due to the situation of handing over and returning the child who is in custody.
If so, it is reasonable and fair for weekends and holidays in a personal relationship to be shared by parents, taking into account the age of the child.
Considering the concrete event in the light of the above explanations;
Born 7.12.2005 in the mother of the defendant-counter-plaintiff, custody by the Local Court. Saturday Sundays from 09: 00 to 18: 00 on Sunday, it is not true that a personal relationship was decided between the plaintiff and the deceptive father, as it would negatively affect the age, education, body and intellectual development of the minor.
On the other hand, as mentioned above, it is obvious that prohibiting the child from being taken abroad will prevent the defendant-counter-plaintiff mother, who is understood to be a foreign national, from fulfilling her guardianship duty, as well as restrict the child’s freedom of travel.
In the face of all these explanations, it is against the procedure and the law to resist the previous decision, while it is necessary to comply with the decision to break the special circle adopted by the Local Court and the General Assembly of law on the additional grounds above.
Therefore, the decision to resist must be broken.
RESULT :
30 of Law No. 6217, due to the additional justification shown above of the decision to resist and the reasons shown in the decision to break the special circle, with the acceptance of the appeals of the defendant-counter-plaintiff ( mother ) attorney. article 429 of the Code of Civil Procedure No. 1086, which is applied with the attribution of “provisional Article 3” added to the law of Civil Procedure No. 6100.article 440/1 of the same law. in accordance with the article, a unanimous decision was made on 20.03.2013, with the way to correct the decision open within 15 days of the notification of the decision.
