International relocation of children in Turkey: overview

A Q&A guide to international relocation of children in Turkey.

This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.

This Q&A is part of the global guide to international child relocation law. For a full list of jurisdictional Q&As visit www.practicallaw.com/relocation-guide. To compare answers across multiple jurisdictions, visit the International Relocation Country Q&A tool.

For an introduction to the guide, see the foreword to the International Relocation of Children Global Guide by Mr Justice Stephen Cobb.

Contents

Rights and responsibilities of parents

Legal responsibility for upbringing

1. What is the legal position of married and unmarried parents in relation to a child's upbringing, and is there a difference? Who has legal responsibility for a child's upbringing?

Under the Turkish Civil Code, the right to custody and its legal consequences depend on whether the child was born during the marriage or not. If the parents are married, they will have the right of custody together during the marriage. If one of them dies, the right of custody passes to the survivor. If they divorce, they must either decide between themselves who will have the custody right or the court will appoint the custodial parent. According to Article 323 of the Turkish Civil Code, when one parent has the custody right, the other one must be given the right to ask for an appropriate "personal relationship" with the child in the form of a visitation right. Issues about the child are related to public order, and so the judge has a wide discretion over her decisions.

If the child was not born during the marriage, according to Article 337of the Turkish Civil Code, an unmarried mother has sole custody of the child even if the father is registered on the child's birth certificate. A father can only have a custody right over his child if he is married to the mother or he obtains a custody order from the court which would change the custody right from the mother to the father. The effect of having sole custody is that the custodial parent is able to make all the decisions regarding the child, including the right to relocate the child without the permission of the other parent or a court. No code exists to limit the rights of the custodial parent, but the non-custodial parent is free to go to the court at any time to petition the judge to prevent or change the effect of a decision of the custodial parent.

 

Rights and responsibilities post-separation

2. Do parents continue to share rights and responsibilities for the child following separation?

Married couples have joint custody rights over their child but on divorce it is impossible to retain joint custody under Article 336 of the Turkish Civil Code. The divorce order will contain a provision for one of the parents to be awarded sole custody of the child, while the other parent's custody right is lifted. However, on divorce, the responsibilities of the non-custodian parent do not end; for the purposes of the law, the non-custodian parent must have compulsory participation in the child's life, which concerns the care and education expenses for the child.

The effect of one parent attaining sole custody on divorce is that they can make most of the decisions over the child's care unilaterally, including the decision to relocate. However, this power is not absolute: for example, in recent decisions if the custodial parent regularly prevents the visitation right of the other parent, the Supreme Court has allowed decisions to cancel the custody of the custodian parent and give custody to the other parent.

If the non-custodial parent objects to a decision or to a potential change, they can go to the court for a decision on the matter. The aggrieved parent can request an emergency interim order to preserve the status quo until a court can decide on the matter. The most common interim order in international cases is the travel ban under Article 391 of the Code of Civil Procedure, which would prevent the parent from removing the child from the jurisdiction until the court lifts the order.

 
3. How do parents generally share the care of children following separation?

Overview

In Turkey, it is possible to have a legal separation or a legal divorce. The child care options are largely the same but the separation award is a temporary award whereas the award on divorce is final. The enforcement of a similar breach of temporary and final orders is slightly different.

During the process of the court case, the parents are free to arrange the child care as they see fit. If either parent is dissatisfied with the private arrangement, they can ask the court for a temporary award on custody, which would see one parent being given temporary sole custody and the other parent given a visitation right.

Custody and access

The custody will be given to one parent as sole, albeit temporary, custody. The other parent will have their custody right lifted and replaced with a visitation right. Depending on the welfare issues involved, the visitation right will enable the parent to see the child for specific parts of the week or month, perhaps with provision for holiday time. In the court award, the non-custodial parent is usually reminded that since they have lost custody if they remove the child from the custodial parent without their permission they will be committing the criminal act of abduction according to Article 234 of the Turkish Criminal Code, and could face imprisonment.

During the visitation periods, the non-custodial parent is notionally permitted to act as the custodial parent. For example, he or she can take the child wherever he or she likes, including on a trip abroad. If the custodial parent does not wish for such a trip to take place, he or she can request that the court places an international travel ban on the child. If the child is removed from the jurisdiction without the custodial parent's permission, the non-custodial parent will not have committed an offence or wrongdoing until he or she fails to return the child on the date and time specified in the court order.

Court orders

Court orders on separation are similar to those on divorce except that they are temporary and therefore are subject to different enforcement rules and procedures.

On divorce, the judge will issue a "custody and visitation" order as part of the divorce decree. Custody rights and the creation of visitation rights can only be asked for in cases of divorce. One of the parents will be given sole custody, the other a visitation right for certain days and times. This is not necessarily a result of any wrongdoing on the part of either parent but because Turkish law does not allow for joint custody on divorce and one of the parents therefore loses the custody right. According to the Supreme Court, because very young children need the care of the mother, custody should be given to the mother unless there is compelling reason not to. At any point during or after the divorce proceedings, either parent can apply to the court for a specific order to regulate the child's care.

Visitation rights can be organised according to an amicable protocol written jointly to the court by the parents, who request that their agreement is made into an order. Alternatively, visitation rights can be awarded by the judge on the request of one party. An aggrieved parent can apply for a change of custody or an alteration to a visitation right at any time as a matter of public policy.

Issues involving children are matters of public policy and the court will make a full investigation of the matter before making a final decision. However, an interim decision can be made in the case of an emergency or to protect the status quo or to make a necessary immediate change.

 

Relocation/right to remove

Overview

4. Are relocation cases a familiar feature of family law within your jurisdiction?

The concept of relocation cases does not exist in Turkish law. Once a parent is given sole custody they can relocate the child to another country unilaterally without having to seek the permission of the other parent. The custodial parent can also obtain a passport for the child without the permission of the other parent.

If the non-custodial parent does not want the child to be relocated to another country they can begin court action for a change of custody or extended visitation rights, perhaps even citing the prospect of the relocation, and ask the judge to decide on whether this relocation would be damaging to the child. If the parent is successful the custody of the child may be awarded to them or alternative visitation rights may be given.

During the case it is common for the child to be subject to a travel ban meaning that the child cannot be relocated to another country during the court process. The travel ban is an emergency interim order, a temporary measure, meant to last only for the duration of the court proceedings, and can be requested as a separate matter. However, when a travel ban request is made, it must be followed by bringing a court case within two weeks, otherwise the travel ban will be automatically lifted according to Article 397 of Code of Civil Procedure.

Therefore, any issue of "relocation" is a reactive matter for the parent who does not want the other parent to relocate the child, having to anticipate the act and prevent it by effective court action, rather than a proactive action for permission by the person wishing to relocate.

 
5. When do relocation disputes tend to arise and what are the most common reasons for parents seeking to relocate?

The most common reason for relocation disputes occurring is when a foreign spouse (usually the wife) wishes to relocate herself and the children back to her homeland on divorce. Some cases occur because a wife is trying to protect herself and her children from an abusive husband or ex-husband. A smaller proportion of disputes seem to occur when a parent (often, but not always, the husband) is given a good work opportunity abroad and wishes to relocate with the children for work purposes.

 

General principles and guidance

6. What is the legal position of a parent who seeks to relocate a child internationally?

The situation depends on whether the parents are married, unmarried or divorced.

For a married couple, the parent wishing to relocate should have the permission of the other parent. If the parent relocates without this permission he or she will not have committed a crime under Article 234 of the Turkish Criminal Code because he or she will not have lost their custody right. However, they would be culpable of a civil wrong because Turkey is party to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention), which is part of Turkish Law by virtue of Article 90 of the Constitution of Turkish Republic.

If the parents are unmarried, the mother has custody and the father does not. If the parents are divorced then one parent will have been given sole custody and the other a visitation right. If a non-custodial parent relocates a child in Turkey or internationally, he or she will have committed a crime of abduction under Article 234 of the Turkish Criminal Code by taking a child from the custodial parent when they do not have a custody right.

For a custodial parent such laws do not apply because they have custody; and in the case of the Hague Child Abduction Convention, because the other parent does not have custody. A custodial parent has all rights over the child limited only by any court decision on a request of the other parent. Therefore, the custodial parent is free to relocate the child to another country without having to obtain the permission of the other parent. If the non-custodial parent objects to the relocation he or she is free to apply to the court for a travel ban on the child if he or she can obtain one before the proposed relocation date, followed by a case concerning the abuse of the court-ordered custody right. If this happens, the non-custodial parent has to justify the decision on relocation to the court, which will give the final decision.

 
7. What are the legal principles applicable to relocation disputes?

The main legal principle is that of the custody right. If a person has a custody right, he or she can relocate. If a person does not have a custody right, he or she will be breaking the law under Article 234 of the Turkish Criminal Code if he or she relocates with the child, and could be charged will criminal child abduction. This carries a penal sentence of between three and 12 months, to be doubled in certain extenuating circumstances.

The custodial parent has all rights over the child and can unilaterally decide to relocate. However, as a matter of public policy, the court must deal with any case concerning the welfare of a child and the non-custodial parent can open a case concerning the child (to prevent the child's relocation) at any time.

The judge will make the decision based on many factors including:

  • The use and abuse of the custodial right regarding the other parent.

  • The proposed plan of both parents should they be given custody.

  • Past behaviours.

  • Psychological and social workers' assessments.

  • The voice of the child, should the child be of a certain level of maturity.

 
8. Do the principles applicable to relocation disputes differ in cases where the parent is seeking to relocate temporarily rather than permanently?

The case against "relocation" would be a prevention action brought by a parent anxious to prevent a removal from Turkey. There would be no difference between a temporary or permanent relocation, because the issue would be whether the custodial parent is competent to make the decision on relocation and not whether the relocation should be allowed to go ahead.

 
9. Have the courts in your jurisdiction provided any guidance to help the judges to apply the principles correctly?

According to Articles 1 to 7 of the Regulation on the Application of Custody Right, Guardianship and Succession Provisions of the Turkish Civil Code, the child is under the custody of the mother and father and the Turkish Civil Code will be applied for custody issues.

 
10. What is the perception of the public and/or legal profession of the way in which relocation disputes are determined by the courts?

Relocation cases are determined as matters concerning the use or abuse of a sole custody right. The Turkish public appears to be relatively comfortable with the concept of sole custody and the power that the court bestows upon the custodial parent. Some charitable foundations have started to question this norm, notably the "Mağdur Babalar Derneği" (or "Maligned Fathers' Association"), because of the difficulties that fathers can face in keeping a relationship with their children due to their lack of custody right. It appears to be public perception that smaller children should be placed with the mother even to the detriment of the father's rights. In international cases, this translates to the mother being able to make the decision to relocate unilaterally.

Public perception of the enforcement problem appears to be wide. Newspapers regularly report on the inequality related to having to pay maintenance as a matter of law or face imprisonment, in comparison to when visitation is denied and relatively little is done to punish the custodial parent.

 
11. Where are the most common places to which parents seek to relocate with children from your jurisdiction?

Historically, parents tend to relocate to the countries where large concentrations of the Turkish diaspora exist, for example, Australia and Germany. However increasingly, foreigners married to Turkish people in Turkey are from varied jurisdictions due to the educational opportunities abroad and the tourism industry in Turkey. These spouses often wish to return to their homelands on divorce with the children. Such parents need to obtain sole custody so that they can relocate without asking for the permission of the other parent or the court.

 

Procedure for relocation

12. What is the legal procedure for seeking to relocate?

Procedure

No procedure exists to get court permission to relocate because the right to relocate belongs to the custodial parent. A custodial parent does not have to ask to relocate but the other parent can ask the court to decide whether that parent is making the right decision.

If the parents are married and one parent wishes to relocate with the children, the non-legal resolution would be for the parties to agree on this. The relocating parent should have a written document, for example a protocol, in which the other parent states that he or she approves and consents to the relocation. If the other parent does not consent, the usual legal process is for the parent wishing to relocate to apply for a divorce and try to obtain sole custody. If the parents are divorced and the custodial parent wishes to relocate, they can do so without the permission of the other parent, but that parent can bring a court action to prevent the child from leaving the jurisdiction.

If a non-custodial parent wishes to relocate with the child, he or she cannot do so without being at risk of breaching both the criminal and civil codes. A non-custodial parent would have to make an application for custody, obtain custody and then relocate. As an illustration, it is not uncommon for foreign wives to accept that their husbands take legal custody over the children in exchange for an amicable divorce and the promise that even though the father keeps legal custody, the children will live with the mother. Such women face an untenable position where they do not have a custodial right over the children but do have the day-to-day responsibility for them. This means they cannot make any decisions for the children including medical or schooling decisions, and for the purposes of this question, cannot relocate back to their homelands without either their ex-husband's permission or going back to court to ask for their custody right to be reinstated.

Duration of procedure

In a divorce case with an international element the collection of evidence alone can take a number of months because expert psychological evidence will be needed and because the international element can cause delays for translation of evidence or notification of overseas parties or witnesses. Even for domestic cases and fast track cases, the appeal can take many months or even some years. The final decision and finalisation certification is made after a number of possible stages of appeal which can take a number of years if all stages are exhausted.

 
13. What steps can be taken to prevent a parent removing the child from the jurisdiction without the agreement of the other parent or the court's permission?

The parent seeking to prevent a removal can apply to the court for an emergency interim measure to place a travel ban on the child using Article 391 of the Code of Civil Procedure. Persuasive evidence needs to be submitted to the court, preferably in the very first step, and the applicant parent must convince the judge that there is a serious risk that the other party will relocate the child.

This application, if granted, must be followed by bringing a court case within two weeks and by submitting the document which shows the main case has been filed to the clerk who performed the interlocutory injunction. The documentation must be put into the case file and by taking an approving document from the clerk.

If any of these stages are missed, the travel ban will fail at the end of a two week period. Usually the travel ban will remain active until the case is decided unless the court decides it is inappropriate under the circumstances.

 

Alternative dispute resolution (ADR)

14. Are methods of ADR used to help to resolve relocation disputes in your jurisdiction? How effective are these ADR methods in such cases?

Judges have a responsibility under the Code of Civil Procedure to encourage the parties to come to an amicable agreement. The courts are also bound by the Code on Foundation, Competence and Legal Proceedings of Family Courts to encourage an amicable resolution. Lawyers are also encouraged under the Lawyers' Code of Practice to seek amicable settlement wherever possible.

The Turkish legal system is starting to explore the use of mediation in various areas of law. In 2012 the Turkish Mediation Code came into effect and many lawyers have been trained as mediators over the intervening years. Many of the larger courthouses now have mediation centres and parties are encouraged to make use of them. Mediation is very new to Turkey and the new initiatives, whilst very encouraging, have yet to be tested for effectiveness.

 

Factors in relocation cases

15. What significance do the child's wishes and feelings have in a relocation case and how are these ascertained/presented?

It should be noted that by "relocation case", this means a case brought by the parent who is attempting to prevent the relocation, rather than the more common case seen in other jurisdictions where the relocating parent applies for permission to relocate.

The child's wishes can be assessed by a court-appointed psychologist if he or she is very young. As a rule of thumb, such a psychologist's report should be commissioned by the court and written up as a report for the court record. The Turkish Supreme Court generally throws out decisions involving a child where a psychologist's examination has not taken place. Such reports may not necessarily be specifically to ascertain the child's wishes and often contain an assessment of the child's home environment and support mechanism. Court-appointed psychologists sometimes do not adhere to the scope of the question posed by the court, or simply focus on their own assessment of the case. On such an occasion, either of the parties can object to the report and can request an additional report to be prepared. In Turkish cases, one of the significant reasons for extended court proceedings is the expert report process; the reports often do not satisfy expectations. It is possible to pre-empt this issue by requesting, as a matter of urgency in the first round of pleadings, that the court appoints experts from university psychology departments if the case concerns a specific matter pertaining to the child.

The child's views will be taken into account if the judge considers it necessary or either of the parents requests it. Usually, the child is brought before the court where the judge will ask questions relevant to the case and to ascertain the maturity of the child. In published cases, children of 12 years of age have been deemed mature enough for their views to be taken into account. For example, in a decision, the court stated that the behaviour and speech of a minor, who was around 12 years of age and who attended the hearing and stated that he did not want to return of his own free will, suggested that he was old enough and mature enough to decide what he wanted (Civil Court of Edremit, Decision numbered E. 2003/626, K. 2004/544). However, the authors note that there have been cases where courts have accepted the voice of children as young as eight years of age.

Where a child considered mature enough states an opinion or request, his or her wishes are generally given high significance and orders are made as close to the child's wish as the law allows. Children who have not attained a level of maturity may be listened to but their views may not be given as much significance.

One of the main problems regarding the child's voice is the significant amount of time the (custodial or abducting) parent has spent with the child and perhaps prevented contact with the other parent before the child's testimony is taken. Considering their age and the sensitive circumstances, children can often give testimony under this pressure. Counsel for the other parent can only note these through written petitions, or verbally in the court room. Matters of parental alienation are new to Turkey and if this is suspected an expert opinion on the matter must be requested by counsel from an expert psychologist.

 
16. Are there any differences between geographical regions/areas in your jurisdiction in the way in which relocation disputes are determined by the courts?

Courts in the larger cities may be more equipped to deal with cases with an international element but they often suffer from heavier workloads and may be slower to process the case.

Cases such as these have a foreign element, and as a result if the judge is unfamiliar with the subject area he can request for the Ministry of Justice to give guidance. Since this guidance is standard, significant geographical differences in determination are not common.

That being said, matters of welfare and public policy are very much within the discretion of the particular judge and so differences in determination are common between judges even within the same region.

 

Offers of security

17. Do offers of security for the return of the child to spend time with the other parent feature in relocation disputes in your jurisdiction? What form do these take?

Monetary security is not a common form of protection in Turkey but it may be instigated by a party. This could form part of the amicable protocol and would probably be accepted by the court as a matter of private agreement.

Although monetary precautions are not stipulated in Turkish laws, for matters concerning the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention), some measures are listed under Article 24 to prevent the other parent from relocating the child. These are:

  • Provisionally banning the child's travel abroad, banning the carrying out of procedures to obtain or renew the child's passport, school or registration documents.

  • Confiscating the child's passport and registration documents as long as the case proceeds.

The competent authorities can also be required to check on the child's presence at the designated address at given intervals.

 

Rights of appeal

18. If a parent is dissatisfied with the decision made by a court in a relocation case, does the parent have a right to appeal?

According to Article 427 of the Code of Civil Procedure, an aggrieved party can appeal to the Supreme Court, if it is a final decision and, if it is a pecuniary decision, it is above a certain amount. Article 371 of the Civil Procedural Code lists the reasons for appeal as:

  • The wrong application of law.

  • Not considering evidence presented by a party to prove its case.

  • A violation of procedural law that impacts the decision.

  • A lack of legal requirement to bring the lawsuit as listed in Article 114.

The aggrieved party has 15 days from the date of the official notification of the award from the court, to make the appeal. There is no system of requesting an appeal and all appeals are processed. Appeals which would not meet the bar for an appeal are denied after a period of consideration; in practice this means that all cases can go to appeal.

Cases regarding custody of children will be seen in the Second Chamber of the Supreme Court. The Supreme Court is exceptionally busy and cases can take as long as nine months to be put before the Chamber. The Chamber deliberates, perhaps with a hearing if requested, and comes to a decision. This decision is processed and sent to the parties, who can request that it is revisited for error.

Once this process is exhausted, the decision is processed back to the court which gave the decision and the judge may accept the decision to sustain or overrule, or may decide to keep to the original decision even if the Supreme Court decided it should be overruled. The aggrieved party can challenge the decision in the High Chamber of the Supreme Court, which will pass its decision to the Second Chamber for decision and then to the original court. If the decision is eventually changed, the aggrieved party can again appeal to the Supreme Court. This process can, if exhausted in full, be exceptionally time consuming.

Matters of the judge's discretion such as, for example, the child's level of maturity, are generally not challenged by the Supreme Court. Other matters of law or process are challenged and decisions are overturned for procedural or legal incorrectness.

 

Abduction

Overview/domestic and international law

19. What is the position if a parent removes a child from your jurisdiction to another without the consent of the other parent and/or permission from the court?

Turkey is a party to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). This means that the Convention become part of Turkish law, according to Article 90/5 of the Turkish Constitution, and is applied to international cases but not necessarily to domestic ones.

However, the legal premise very much depends on the marital status of the parents. If the parents are married, under usual circumstances, the left-behind parent in Turkey should be able to bring a case in the other signatory country, because under Turkish custody law both parents in a marriage have equal custody rights. However, if the parents have divorced, one of the parents will have been divested of his or her custody right by the divorce court order.

There is a question mark over the custody rights of a left-behind parent if the divorce has started and the court has made a temporary custody order for the parent who has removed the child. Notionally, the left-behind parent would have lost the custody right that forms the basis of the Hague Child Abduction Convention application right, and it would be down to the court's discretion on hearing the return case to decide whether that case has been brought correctly under the Hague Child Abduction Convention. The answer is highly debateable. Bearing in mind that contentious divorces with an international element can take years to be finalised, it is also likely to be a long timeframe for challenging custody rights matters where children are abducted during the course of divorce proceedings.

If the divorce is finalised, and the custody right has been lifted from the left-behind parent by court order, the left-behind parent would not normally be able to bring a Hague Child Abduction Convention case because of his or her lack of custody right.

 
20. Is your jurisdiction a signatory to any relevant treaty or convention concerning child abduction?

Turkey is a signatory to HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention).

Since Turkey is not a member state of the European Union, Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation) does not apply in Turkey.

 

Factors

21. Are there any defences which could be raised by a parent to attempt to avoid the child's return?

The usual defences in HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) cases are used in Turkey.

The argument of "settlement" found in Article 12 is usually interpreted to mean that if an application is made within a year, the arguments of settlement cannot be raised. However it is sometimes used in the negative to mean that if the application is made after a year, the child should be considered settled and the case should fail. This interpretation is often overturned by the Supreme Court, but usually only if a full psychological analysis of the child's settlement issue has not been undertaken.

The Article 13b provision of "grave risk" is the most common defence. However, a doctrine exists to show that this Article cannot be relied on to say that small children should be placed with their mothers, since the objective of the Hague Child Abduction Convention is to return the children to their habitual residence, but not necessarily to reunite them with their mothers. However, the Court of Cassation deems the need of children for their mother's care and affection a reason to place the children with their mothers instead of their habitual residence (Zonguldak Family Court decision numbered E. 2004/34, K. 2004/761).

The defence of possible human rights violation is not often used. If the child is going to acquire refugee status, be subject to racial, religious or ethnic discrimination, be deprived of educational rights or forced into working in dangerous jobs in the return country, the return request may be denied (AKINCI Ziya/DEMİR GÖKYAYLA Cemile, Milletlerarası Aile Hukuku, İstanbul 2010).

As a matter of public law, when a judge decides the child should be returned she will also consider the safety of the child while returning. This means that she considers whether it is in the best interests of the child to be returned with the mother or the father. If the abducting parent raises matters of abuse perpetrated by the other parent and there is some reason why the abducting parent cannot return to the jurisdiction, the judge may be reluctant to return the child. Examples may even include where the abducting parent may face prison if they return with the child or where the abducting parent may face severe financial problems.

 
22. How are the child's wishes/feelings ascertained or presented in an abduction case?

The judge usually requests, in the preliminary hearing, that the child has a psychological assessment, and an assessment is made of his or her home in Turkey. This is done by an interview with the abducting parent and the child in the Turkish home and/or in the court office of the psychologist. This report may be followed up or another report can be commissioned if the left-behind parent objects to the manner in which the first report was made. Often the left-behind parent is not assessed or interviewed unless he or she specifically requests to be. The report aims to assess the abducting parent and the child's attitudes and the suitability of the home as well as to assess any risk on return as per Article 13b of the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) if such an allegation has been made.

In addition to this, the child is often called to give evidence in court if he or she has reached the necessary maturity to have his or her own opinion. In one case, the court refused to accept the child's opinion on return because the child was four at the time of the hearing (Sariyer Family Court decision dated 25.10.2004, numbered E.2004/683 K. 2004/929). This witness evidence will usually be taken in the second or third hearing. It is notionally possible for a child to have a guardian to act for the child separate to the abducting parent's lawyer.

 

Reform

23. Are any legal developments in progress or planned in the law which may affect the law or practice in relocation or abduction cases?

The Central Authority of Turkey that deals with HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) actions is the Turkish Ministry of Justice. Concerns over the time Hague Child Abduction Convention return cases take, and problems with enforcement have been debated within the Ministry.

Currently there is no formal mediation system for the parents to avail themselves of before the case goes to court. The current process is that when the case comes to the Turkish Central Authority, they process it to the public prosecutor of the relevant city. The public prosecutor calls the abducting parent for a conference where the parent makes a statement of intent, which the public prosecutor will process back through the requesting Turkish Central Authority; and then awaits a reply statement from the left-behind parent before processing the matter to court. As a result of this, this process can take an extended time. Suggestions are being considered that when the public prosecutor receives notification of a return case, rather than going through the Central Authority's written notification system, the public prosecutor would organise a mediation session between the two parents. If this was not successful, the prosecutor would process the case to the court more quickly. This is part of a wider drive to incorporate mediation into various areas of law.

 

Online resources

Legislation Information System (Mevzuat Bilgi Sistemi): Turkish Civil Code

W www.mevzuat.gov.tr/MevzuatMetin/1.5.4721.pdf

Description. The official website of Turkish laws, developed by the Prime Ministry. The Turkish Civil Code can be found on this website.

Legislation Information System (Mevzuat Bilgi Sistemi): Turkish Code of Civil Procedure

W www.mevzuat.gov.tr/MevzuatMetin/1.5.6100.pdf

Description. The official website of Turkish laws, where the Code of Civil Procedure can be found.

Legislation Information System (Mevzuat Bilgi Sistemi): Turkish Criminal Code

W www.mevzuat.gov.tr/MevzuatMetin/1.5.5237.pdf

Description. The official website of Turkish laws, where the Turkish Criminal Code can be found.

Legislation Information System (Mevzuat Bilgi Sistemi): Constitution of the Republic of Turkey

W www.mevzuat.gov.tr/MevzuatMetin/1.5.2709.pdf

Description. The official website of Turkish laws, where the Constitution of the Republic of Turkey can be found.

Legislation Information System (Mevzuat Bilgi Sistemi): Regulation on the Application of Custody Right, Guardianship and Succession Provisions

Wwww.mevzuat.gov.tr/Metin.Aspx?MevzuatKod=7.5.5032&MevzuatIliski=0&sourceXmlSearch=velayet

Description. The official website of Turkish laws, where the Regulation on the Application of Custody Right, Guardianship and Succession Provisions can be found.

Legislation Information System (Mevzuat Bilgi Sistemi): Code on Foundation, Competence and Legal Proceedings of Family Courts

W www.mevzuat.gov.tr/MevzuatMetin/1.5.4787.pdf

Description. The official website of Turkish laws, where the Code on Foundation, Competence and Legal Proceedings of Family Courts can be found.

Legislation Information System (Mevzuat Bilgi Sistemi): Turkish Mediation Code

W www.mevzuat.gov.tr/MevzuatMetin/1.5.6325.pdf

Description. The official website of Turkish laws, where the Turkish Mediation Code can be found.

Directorate General for International Law and Foreign Relations

W www.uhdigm.adalet.gov.tr/sozlesmeler/coktaraflisoz/lahey/turkce_lah28.pdf

Description. The official website of the Directorate General for International Law and Foreign Relations, developed by the Ministry of Justice. The Turkish version of the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) can be found on this website.

Legislation Information System (Mevzuat Bilgi Sistemi): Code on the legal aspects and scope of international child abduction

W www.mevzuat.gov.tr/MevzuatMetin/1.5.5717.pdf

Description. The official website of Turkish laws where the Code on the legal aspects and scope of international child abduction can be found.



Contributor profiles

Dr Karen Denise Akinci

Akinci Consultancy firm, Istanbul

T +90 212 2870700
F +90 212 2878786
E karen@akincilaw.com
W www.akincilaw.com

Professional qualifications. Diploma, Commercial Arbitration, CIArb; Mediation Accreditation, CEDR

Areas of practice. Consultancy; international abduction; family matters; child matters; mediation; arbitration.

Non-professional qualifications. BSc Pure and Applied Mathematics, Exeter University, UK; MSc Pure Mathematics, Dokuz Eylul University, Turkey; PhD Pure Mathematics, Dokuz Eylul University, Turkey; LLB, College of Law, Open University, UK; currently undertaking LLM, BPP University London, UK

Recent transactions.

  • Advised on a HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) return case involving child abuse.
  • Advised in a Hague Child Abduction Convention return case involving parental alienation syndrome.
  • Advised in a Hague Child Abduction Convention return case involving spousal abuse.
  • Advised on a mediated return without case action.
  • Advised on an execution of a Hague Order.
  • Advised on an execution of a Hague Return Order where the children were subsequently abducted within Turkey.
  • Involved in a case and execution of a Hague Visitation Order in Turkey and subsequent settlement.
  • Provided an expert opinion for a custody case in the foreign court considering the rights of the child and the safe return if vacation was ordered in Turkey.
  • Provided an expert opinion for a custody case in the foreign court considering the possible abuse of the rights of the child if he were to be returned to Turkey.

Languages. English and Turkish

Professional associations/memberships.

  • Fellow of the Chartered Institute of Arbitrators, London.
  • Member of the European Family Justice Observatory.
  • Member of Arbitral Women.
  • Member of British Chamber of Commerce Turkey, Istanbul.
  • Member of CEDR Exchange, London.
  • Member of the Turkish British Chamber of Commerce and Industry, London.
  • Member of the British Turkish Lawyers Association.

Publications.

  • Hague Convention parental child abduction cases in Turkey, International Family Law Journal, Jordan Publishing, June [2014], p96-99.
  • Mediation: A Comparative Discussion on the Laws and Practice of the United Kingdom and Turkey, with Christopher Cox and CeydaSural, Int J. Of Arbitration, Mediation and Dispute Resolution, CIArb, Vol 80, No 3, 2014.
  • Mediation in Turkey and the Mediation Bill, Int J. Of Arbitration, Mediation and Dispute Resolution, CIArb, Vol 78, No 3 2012.

Dilan Talay

Akinci Consultancy firm, Istanbul

T +90 212 2870700
F +90 212 2878786
E dilan@akincilaw.com
W www.akincilaw.com

Professional qualifications. Admitted to the Bar, Istanbul.

Areas of practice. Private international law; labour law; commercial law; family law; contract law; real estate law.

Non-professional qualifications. BA in Political Science, Bilgi University


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