In order to change custody after the divorce decision is made and finalized, there must be substantial changes in the situation of the child and the party to whom custody is given. It is also sought that these fundamental changes are continuous and effective in the development of the child. The change that will occur may be in the situation of the child or in the situation of the party to whom custody is given. E.g; In cases where the parent who is given custody becomes unable to take care of the child due to serious health problems, the child is exposed to violence, the child is made to work.
The party to whom custody is given after the divorce includes the rights, duties, powers and obligations of the child’s care, education, training, protection, representation, personalities and property of the children. to make a living, to carry out their upbringing and education. The party to whom custody is given must fulfill all these obligations in full.
The main point to be proved by the party filing a custody case is that the parent who has the custody has neglected the above-mentioned obligations and duties regarding custody and acted contrary to the interests of the minor. must prove that he has not properly fulfilled his obligations.
Witness statements are among the essential evidence in cases of changing custody, and it can be proved by all kinds of legal evidence, especially witness evidence, that the party to whom custody is given violates its obligations regarding custody. Again, within the scope of the case, besides the custody of the child, the violation of the interests of the child can also be proven with the Social Review Reports to be prepared by the social investigators. If it cannot be proven with concrete evidence that the party who has custody does not fulfill its obligations regarding custody and acts contrary to the interests of the minor, then the custody case will be rejected.
In the custody case, if it is proved before the court that the party holding the custody acted contrary to the custody obligation, it will be decided to change the custody. The party requesting that custody be given to him/her may also request that an appropriate child support be awarded along with custody. The amount of alimony to be awarded is determined by considering the social and economic status of the parties, the age of the child and their expenses.
In its decision dated 22.01.2014 and numbered 22.01.2014 of the Supreme Court of Appeals Law General Assembly, Principle : 2013/2-2085 and Decision : 2014/30, “The dispute is FOLLOWED AT THE POINT of whether it is proven that the mother who has the custody abused her custody to such an extent that the custody would be abolished or changed.
As it is known, in accordance with Articles 339-347 of the Turkish Civil Code (TMK) numbered 4721, custody covers the duties of care, education, training and protection of children and representation. The rights and duties of the parents regarding the personalities of the children, especially to look after the children, to see and watch over them, to make a living, to carry out their upbringing and education. In this context, it HAS the right and OBLIGATION to raise the child as an honest, free from bad habits, good moral, hardworking and knowledgeable person with the education it will provide.
The purpose of arranging custody in the event of separation and divorce is the future BENEFITS of the minor. Accordingly, the main thing in arranging custody is to protect the benefit of the minor and to secure his future.
It should be noted that unless the conditions for the abolition and change of custody are fulfilled, no intervention can be made in the custody duties of the mother and father. For this purpose, it is imperative that there should be substantial changes in the situation of the party to whom the custody is given or the child subject to custody after the divorce decree, and the fundamental change MUST be significant and permanent. Every event that hinders the child’s physical and mental development and is understood to be permanent, the magnitude of the danger, and the irreparable consequences it will cause should be evaluated and a conclusion should be reached; In determining and arranging custody, the best interests of the child MUST be considered first.
In this context, the child’s gender, date of birth, education level, who is studying with him, whether the applicant is interested in the child’s education level, health, who can provide treatment opportunities according to his health status, etc., should be taken into consideration.
In determining and arranging custody, it is ESSENTIAL to take into account the characteristics arising from the parents. Therefore, whether or not the party has a custody request, violence, infidelity, economic situation, profession, living environment, bad behavior, alcohol addiction, health, unbalanced behavior, regarding the issues of leaving the child to someone else, neglecting, kidnapping, leaving voluntarily, redirecting the child by the court. MUST BE TAKEN.
In addition to the features explained, the court should take care not to change the environment to which the child is accustomed, to ensure that siblings are not separated, whether there is serious and convincing evidence that staying with the parent to whom custody is to be given will prevent the child’s physical, intellectual and moral development or whether the existence of an immediate danger can be proven and material It should also be considered that the goodness of the situation alone does not require changing the custody.”
