The best interests of the child in custody (velayet) is the fundamental principle the court observes when making a custody order after divorce or separation. In reaching that decision the judge relies less on what the parties want than on the child’s needs in terms of health, education, housing and psychological development. This article addresses the criteria the court looks at in a custody decision and how the process works. Since custody disputes are among the emotionally most demanding parts of a divorce, knowing in advance how the process works can be of assistance to the parties.
- Under TMK m. 182, when determining custody the judge takes as the basis the child’s interests in terms of health, education and morals.
- The court weighs a number of factors together, such as the child’s age, the state of attachment to each parent, and economic and social circumstances.
- The social investigation report (sosyal inceleme raporu) is an important item of evidence that places concrete observations before the court in custody decisions.
- The views of a child who has reached the age of discernment (idrak çağı) may be taken; those views alone do not, however, determine the decision.
- Under TMK m. 183, a change of custody may be sought where the parent remarries, moves away or dies.
- The personal relationship (kişisel ilişki) between the child and the parent who does not obtain custody is separately regulated by the court.
What Is the Principle of the Best Interests of the Child?
The principle of the best interests of the child means that in custody decisions it is the needs of the child, and not those of the parents, that must be decisive. Under TMK m. 182, when regulating custody the court takes as the basis the child’s interests in terms of health, education and morals.
This principle applies not only to the custody order made at the time of the divorce, but also to any subsequent action for a change of custody. Independently of the allegations of fault (kusur) that the parents raise against one another, the court seeks the arrangement that will best protect the child’s daily life and future. In the field of family and divorce law, custody disputes are among the types of action that call for the most sensitive and careful assessment.
How Is Interim Custody Determined During a Divorce Action?
When an action for divorce or separation is brought, the judge takes of the court’s own motion the interim measures (geçici önlem) that are to apply until the action is concluded; among those measures is the question of whom the child is to stay with on a temporary basis. This arrangement is set out in TMK m. 169 and is applied by the judge of the court’s own motion even where the parties have made no request.
The interim custody arrangement is intended to secure the care and protection of the child for the duration of the action, and it comes to an end with the final judgment. The parent with whom the child stays during the interim period is not to be regarded as having automatically obtained custody in the final outcome of the action; the court gives its substantive decision independently, again according to the best interests of the child.
What Criteria Does the Court Look At in a Custody Decision?
In making a custody decision the court weighs together a number of factors, such as the child’s age, sex, state of health and school life, the level of attachment to each parent, and the capacity of the parents to devote time to the child. The fact that one criterion carries greater weight does not deprive the other factors of effect.
The Child’s Age and Stage of Development
Although the importance of the mother’s care for young children has traditionally been emphasised, that circumstance is not on its own decisive; where the mother’s care is not in the child’s interests, custody may be given to the father. For children of school age, on the other hand, stability of education and the social environment take on importance.
The Parent’s Economic and Social Position
Although a parent’s income is not decisive on its own, the capacity to offer a settled way of life capable of meeting the child’s basic needs is assessed. Housing conditions, working hours and the time that can be devoted to the child are also part of that assessment.
The Parent’s Attachment to the Child
Which parent the child has formed the stronger emotional bond with is something the court seeks to establish through the social investigation report and through observation. That this bond is a healthy and stable one is an important factor in the custody decision.
The Principle That Siblings Remain Together
So far as possible, the courts prefer that siblings remain with the same parent, since the continuity of the sibling relationship is regarded as important for the children’s emotional development. While this principle is not absolute, the general tendency is in that direction unless there are exceptional circumstances requiring the siblings to be separated.
A Parent’s History of Violence or Neglect
A history on the part of one of the parents of violence, neglect or abuse directed at the child or at the other parent is a decisive negative factor in the custody decision. Where allegations of this kind are supported by evidence such as a medical report, a police station record or witness testimony, they carry substantial weight in the court’s assessment.
| Assessment Criterion | What the Court Looks At |
|---|---|
| Health | Protection of the child’s physical and mental health |
| Education | School stability, continuity of the educational environment |
| Housing | A settled and safe living environment |
| Emotional bond | The level of attachment the child has formed with the parent |
| Keeping siblings together | That siblings are not separated so far as possible |
How Does the Social Investigation Report Affect the Custody Decision?
The social investigation report is a report prepared by a pedagogue, a psychologist or a social worker which examines the child’s living environment on site. By offering concrete observations that go beyond the statements of the parties, this report assists the court.
In preparing the report the expert observes the child’s home environment, school, interaction with the parents and, where there are any, the relationship with siblings. Although the social investigation report is not binding, the judge forms a decision by appraising the report together with the other evidence; the parties may object to the report and, where necessary, request that a further examination be carried out.
In practice the social investigation is generally carried out separately at the home of each parent; in this way the expert is able to assess the child’s situation in the two environments comparatively. The report generally covers such headings as the physical condition of the dwelling, whether the child has a living space of their own, the parent’s working pattern and the time that can be devoted to the child.
What Other Evidence Is Used in a Custody Action?
Apart from the social investigation report, witness testimony, school correspondence, medical reports and, where they exist, documents relating to any psychological support the child is receiving may also be submitted as evidence in a custody action. These documents set out the child’s current situation and needs in concrete terms.
A parent’s working hours, income documentation and residence details are also among the documents submitted to the file. Where it considers it necessary, the court may also request information from the school administration on the child’s attendance and academic progress.
Are the Child’s Views Taken Into Account in the Custody Decision?
The views of a child who has reached the age of discernment (that is, who is mature enough to form their own view) are one of the factors that may be taken into account in the custody decision. The child’s views are not, however, binding on their own; the court appraises those views together with all the other criteria.
The taking of the child’s views is generally done through an expert, in a manner that does not place the child directly in the middle of a conflict. The aim is not to compel the child to choose between two parents, but to understand the child’s needs and expectations. By way of an entirely fictitious and anonymised example scenario, a twelve-year-old child telling the expert that they wish to remain in their school environment may be one of the factors taken into account in the court’s assessment of stability of housing and education (illustrative only).
Is Joint Custody Possible Under Turkish Law?
Under Turkish law, during the marriage custody is exercised jointly by the mother and the father in accordance with TMK m. 336. After a divorce, as a rule custody is left with one of the parties; in the practice of the Yargıtay (the Court of Cassation), however, joint custody (ortak velayet) may also be allowed to the extent that the parties’ circumstances are consistent with the best interests of the child.
Joint custody is found to be more workable in particular in uncontested divorce proceedings, where the parties are able to act cooperatively and to take the principal decisions concerning the child together. In contested files with a high level of conflict the courts are less inclined to order joint custody, because a mechanism of joint decision-making between parents who are in constant disagreement may adversely affect the child’s stability.
Where joint custody is to be requested, it is advisable that the protocol or the statement of claim state clearly with which parent the child is to reside, how important decisions such as those on education and health are to be taken, and the method the parties will follow in the event of disagreement. Joint custody arrangements left indeterminate may in practice give rise to fresh disputes.
How Does Parental Alienation Affect the Custody Decision?
Parental alienation (ebeveyn yabancılaştırması) refers to the situation in which one parent turns the child against the other parent or seeks to damage the relationship between them. Where such a situation is established, the court takes it into account in the custody decision and in the arrangements for the personal relationship.
The social investigation report and expert opinion are important tools for establishing whether influence of this kind is present. A child developing a sudden and marked negative attitude towards a parent without any concrete reason is a situation that may lead the court to examine the matter from this angle; not every negative attitude is automatically characterised as alienation, however, and the circumstances of the particular case are assessed separately.
The custody arrangements are for the most part bound up with the divorce process as a whole; we address how that process works in our article on uncontested divorce in İzmir, and the means of proof to be relied on where the parties are unable to agree in our article on evidence in a contested divorce.
In What Circumstances May a Change of Custody Be Sought?
Under TMK m. 183, where new facts such as the remarriage of the mother or the father, their moving elsewhere or their death make it necessary, the judge may take the necessary measures of the court’s own motion or upon the application of either the mother or the father; one of those measures is a change of custody.
The remarriage of the parent who holds custody is not on its own sufficient for a change of custody; it must be shown that the new marriage is adversely affecting the child’s care or psychological development. The statute lists these situations in a non-exhaustive manner; other changes of circumstance affecting the best interests of the child may also ground a change of custody.
A court that establishes that the parent who does not hold custody is neglecting the child’s care or acting in a way that will harm the child may likewise change custody, upon application or of its own motion. In actions of this kind too, the social investigation report and witness testimony are the principal means of evidence.
An action for a change of custody may be brought before the court that made the existing custody order or before the family court of the child’s new place of residence; on the question of jurisdiction the particular features of the file are decisive. The statement of claim must set out clearly which circumstance has changed and why that change is contrary to the child’s interests. The full text of the relevant statutory provisions is available in the Turkish Civil Code on mevzuat.gov.tr.
The bringing of an action for a change of custody does not of itself suspend the existing custody arrangement until the action is concluded. Where matters are urgent, the applicant may additionally request an interim measure; the court assesses that request according to the particular circumstances of the file.
How Is the Right of Personal Relationship of the Parent Who Does Not Obtain Custody Regulated?
The personal relationship between the child and the parent who does not obtain custody is separately regulated by the court under TMK m. 182; that regulation generally covers particular days and hours relating to weekends, public holidays and the summer holiday period. The best interests of the child are taken as the basis for the personal relationship arrangements as well.
The scope of the personal relationship may vary according to the child’s age and the existing relationship with the parent. For young children, more frequent but shorter contact may be preferred, and for children of school age a wider timetable covering weekends and holiday periods. Regular exercise of the personal relationship contributes to the child forming a healthy bond with both parents.
Where the personal relationship arrangements are not complied with, the aggrieved party may seek enforcement of that right through enforcement proceedings (icra takibi). Continuous and deliberate obstruction of the personal relationship is a factor that may be taken into account by the court in any future action for a change of custody.
How Does the Custody Action Process Work?
A custody request may be raised as a claim within the divorce action, or it may be brought as a separate action for a change of custody after the divorce has become final. In either case the court decides by appraising together the parties’ statements, witness testimony and the social investigation report.
The length of the process varies according to the time taken to prepare the social investigation report, the parties’ willingness to reach agreement and the level of conflict in the file. Conducting the process with a focus on the child’s interests contributes both to the proceedings being completed within a reasonable time and to the child being less affected by the process.
Although mediation (arabuluculuk) may be a method of choice as regards the financial consequences of a divorce, its scope is limited on matters of public order such as custody; the final decision on custody is in every case given by the court. The parties may, on the other hand, reach agreement outside court on the manner in which custody is to be exercised and on the personal relationship timetable, and submit that agreement for the court’s approval.
Another subject that frequently arises together with the custody arrangements is the action for an increase in maintenance; the child’s changing needs may affect the amount of maintenance (nafaka) as much as they affect custody. The provisions of the Turkish Civil Code on custody are available from the TBMM legislation page, and the case law of the Yargıtay on the subject from the Yargıtay Decision Search system.
Another subject that frequently arises alongside custody in the divorce process is the liquidation of the matrimonial property regime; our article on the liquidation of the matrimonial property regime and the participation claim offers detailed information under that heading. For the rates of interest that will run where maintenance or a participation claim that has been awarded is paid late, you may consult our article on statutory interest, default interest and advance interest.
What Will the Other Side Do?
In custody disputes it should be borne in mind that the other parent is also pursuing a strategy in their own favour; anticipating that strategy in advance allows the evidence to be submitted to the court to be prepared properly.
The defence that the other parent offers a more suitable environment of care. The other side may argue that their own living conditions, economic position or family support are more favourable for the child. This allegation is met with the social investigation report, housing and income documents, and concrete records of whom the child has in fact lived with to date.
The defence that the party seeking custody is unable to devote sufficient time to the child. This allegation may be raised on grounds such as working hours or the need to travel. It is met by submitting concrete information about the working pattern, the support of those close at hand and the child’s daily routine.
The defence that the child’s existing arrangements should not be disturbed. The other side may argue that the child’s school, friends and social environment should not change. This allegation is met with the principle that the best interests of the child are assessed not statically but according to current circumstances and, where necessary, with the opinion of an expert pedagogue.
The defence that the other parent has influenced the child. It may be argued that the child’s views were formed under influence. This allegation is met by the interview with the child being conducted in the presence of an expert and free of any steering.
Which defence comes to the fore varies according to the parties’ history of actual care and the child’s age; for that reason it is important that concrete evidence be prepared before the social investigation. Keeping regular documentation of who has in fact taken part in the child’s daily care and in following up school and health matters (records of parents’ meetings, medical appointments) makes it easier to anticipate which defence will come to the fore. To assess in advance which defence your file will meet, you may contact us.
Frequently Asked Questions
Can a custody order not be changed once it has been made?
A custody order is not final and unalterable. Under TMK m. 183, where there is a material change in circumstances, a change of custody may be sought by way of a separate action.
Does the mother always obtain custody?
No. There is no rule in the statute giving priority to the mother or to the father; the court decides in each particular case having regard to the best interests of the child.
From what age are the child’s views taken?
There is no fixed age limit in the statute; what matters is that the child has reached the age of discernment, that is, is mature enough to form their own view. That assessment is made through an expert.
Can the parent who does not obtain custody not see the child at all?
No. The court separately regulates the personal relationship between the child and the parent who does not obtain custody; that regulation is tied to a particular timetable, such as weekends and holidays.
Can the social investigation report be challenged?
Yes, the parties may object to the report and, where necessary, request that a further examination be carried out. The report is not binding on its own and is appraised together with the other evidence.
Can custody of siblings be given to different parents?
It is possible, but as a general tendency the courts find that siblings not being separated from one another is more consistent with the best interests of the children. The circumstances of the particular case are decisive on this point.
Is it necessary to be divorced in order to bring a custody action?
No. Custody arrangements may also be made for children born outside marriage; in addition, while spouses are living apart without being formally divorced, an arrangement as to custody may be requested by way of an interim measure.
Is permission to travel abroad related to custody?
Yes; when the parent who holds custody travels abroad with their child, in some situations the consent of the other parent or a court order may be required. This matter varies according to the content of the custody order and the particular circumstances.
Sources
Related Articles
- Uncontested Divorce in İzmir: Protocol, Hearing and Process (2026)
- Evidence in a Contested Divorce: What May Be Used, What Is Unlawful?
- Action for an Increase in Maintenance: TÜFE Rate, Conditions and Timing
- How Are Liquidation of the Matrimonial Property Regime and the Participation Claim Calculated?
- Statutory Interest, Default Interest and Advance Interest: The Differences
- The Time Limit for Renouncing an Inheritance: Procedure and the Case of an Indebted Deceased
- Reserved Share and the Action for Abatement: How Is an Heir’s Right Protected?
This article is for general information purposes and does not take the place of legal advice. Your particular situation requires a separate assessment of your file. This article was prepared on the basis of the legislation in force as at 17.09.2026.
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