The Case of Changing Custody
In order to change custody after the decision to divorce has been made and finalized, there must be fundamental changes in the case of the child and the party to whom custody has been granted. It is also sought that these fundamental changes be continuous and effective in the development of the child. The change that will occur may occur in the case of the child, as well as in the case of the party who has been granted custody. For example, if the party given custody of him becomes unable to take proper care of the child due to the occurrence of serious health problems, the child becomes violent, the child is employed.
The party to whom custody is assigned after a divorce includes the care, education, training, protection, representation of children, rights, assignments, powers and obligations related to the personality and property of children.The rights and duties of the party who is given custody of the children’s personalities are to take care of the children, to see and look after them, to provide for their livelihood, to educate and educate them, especially to take care of the children. The party to whom custody is assigned must fully fulfill all these obligations.
The main thing that the party filing the custody case must prove is that the party who has custody himself has neglected the above-mentioned obligations and duties related to custody, acted contrary to the interests of the minor.The party filing the custody case and requesting that custody be granted to him must prove that the other party has acted contrary to the best interests of the child and has not fulfilled its custody obligations as required.
Witness statements in custody change cases are among the main evidence, and custody can be proven by all kinds of legal evidence, especially witness evidence that the party assigned to it has violated its obligations Dec custody. Again, within the scope of the case, it may be proved by Social Examination Reports to be prepared by social examination officers that the interests of the parties who have custody of the child as well as the parties whose interests have been violated within the scope of the case. If the party who has custody cannot be proved by concrete evidence that he has not fulfilled his obligations regarding custody and acted contrary to the interests of the minor, then the refusal of the custody case will be decided.
In a custody case, if it is proved before the court that the party who has custody of him has acted contrary to his custody obligation, a decision will be made to change custody. The party requesting that custody be granted to him may also request that an appropriate subsidiary child support be provided along with custody. The amount of alimony to be decided is determined taking into account the social and economic situation of the parties, as well as the age and expenses of the child.
The General Assembly of the Supreme Court of Cassation on the Law on the Merits: 2013/2-2085 and Decision : 2014/30 in its decision dated 22.01.2014 “ The dispute is CONVENED at the POINT of whether it is proved that the mother, who has custody, has abused her right to custody to such an extent that it requires the removal or change of custody.
As is known, in accordance with Articles 339-347 of the Turkish Civil Code (TCC) No. 4721, custody covers the duties of representation in the care, education, training and protection of children.Custody also includes the rights, duties, powers and obligations of children under the guardianship of the parents with respect to their personality and property.The rights and duties of parents regarding the personalities of children, especially caring for children, seeing and caring for them, providing for their livelihood, raising and EDUCATING them, are TO REALIZE. 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 to the desired extent with the education it will provide.
The purpose of arranging custody in case of separation and divorce is the prospective BENEFITS of the minor. Accordingly, the main thing in arranging custody is to protect the minor’s benefit and secure his future.Custody is related to public order and it is NECESSARY to take into account the interests of the child rather than the wishes and statements of the parents in this regard.
It should be noted that there can be no interference with the custody duties of the parents unless the conditions for the removal and change of custody have been met.15.04.1992 days and 1992/2-140 E of the General Assembly of the Supreme Court of Law. As stated in the decision of 1992/248 K, given to him held in custody in divorce custody to be exchanged for, or subject to the custody of the child after the divorce decree in the case of radical changes have to be, in addition to the significant and substantial change must be continuous…. By the way, it should be noted that since the main thing in arranging custody is to protect the benefit of the minor and ensure his future, every event that hinders the physical and spiritual development of the child and is understood to be continuous is the magnitude of the danger, the results that are difficult to repair should be evaluated and concluded; the benefit of the child should be taken into account first in determining and regulating custody.
In this context, issues related to the child’s gender, date of birth, educational status, who is studying next to him, whether the applicant is interested in the child’s educational status, his health, and by whom treatment facilities can be provided according to his health status should be taken into consideration.
It is also INEVITABLE to take into account the characteristics arising from the parents in the determination and regulation of custody. Therefore, the court SHOULD TAKE INTO ACCOUNT the child’s neglect, abduction, voluntary abandonment, orientation, whether the party has a claim for custody, violence, infidelity, economic status, profession, environment, bad behavior, alcohol abuse, health, unbalanced behavior.
In addition to the described features, the court should ALSO take care not to change the environment to which the child is accustomed as much as possible, not to separate the siblings, whether there is serious and convincing evidence that staying with the party to whom custody will be granted will interfere with the child’s body, idea, moral development, or whether the existence of an immediate danger can be proven, and the well-being of the financial situation alone will NOT require changing custody.”
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