The custody of a child born out of wedlock is one of the most widely misunderstood topics in practice. In particular, circumstances such as the child being registered under the father’s population registry, the parties cohabiting, or the presence of a religious marriage lead to confusion among citizens regarding who holds custody.
Under Turkish law, this matter is quite clear. Article 337 of the Turkish Civil Code explicitly regulates this issue:
“If the mother and father are not married, custody belongs to the mother. If the mother is a minor, restricted, deceased, or if custody has been revoked from her, the judge shall appoint a guardian or grant custody to the father in accordance with the best interests of the child.”
Pursuant to this regulation, custody of children born out of wedlock automatically belongs to the mother. No separate court decree is required for this status. The fact that the child has been recognized by the father, is registered under the father’s name, or resides with the father does not alter the right of custody.
A common scenario encountered in practice is where only a religious marriage exists between the parties. However, since a religious marriage is not recognized as an official marriage under Turkish law, children born of such a union are legally considered born out of wedlock. Consequently, in this scenario as well, custody belongs to the mother.
The law envisions that under certain exceptional circumstances, custody may be transferred to the father. In cases where the mother is a minor, restricted, deceased, or if her custody rights have been revoked, the judge, considering the best interests of the child, may grant custody to the father or decide on the appointment of a guardian. Apart from these situations, the father must file a lawsuit to obtain custody.
At this exact point, it is necessary to address one of the most frequent errors encountered in practice. Mothers occasionally file lawsuits demanding that “custody be granted to them” simply because the child was born out of wedlock. However, since custody already belongs to the mother by operation of law, such lawsuits are dismissed due to the lack of legal interest. This is because there is no right that needs to be re-established by a court.
Nevertheless, it is possible to state that there are certain exceptions to this situation depending on the specific facts of the case. The situation changes in instances where the child is physically with the father and the father refuses to deliver the child to the mother. In such cases, it is accepted that the mother possesses a legal interest in filing a lawsuit in order to de facto exercise her right of custody. As a matter of fact, a court decree is required to make the necessary applications for the delivery of the child.
Indeed, the 2nd Civil Chamber of the Court of Cassation explicitly established this point in its decree numbered Merits 2011/7680, Decision 2011/20580:
“According to the law, it is indisputable that the custody of this child belongs to his mother (TCC Art. 337/1). However, since it is understood from the scope of the file that the child is de facto with his father and the father has not delivered this child to the mother who holds the right of custody with her consent, it is also clear that the mother must take delivery of the child in order to fulfill her statutory custody responsibility. The fact that custody belongs to the mother by operation of law does not automatically ensure that the child is taken from the father and delivered to the mother who holds custody. A court decree is required for the delivery. Therefore, the mother has a legal interest in filing a lawsuit for the delivery of the child to her.”
The high court accepts that if the child is not delivered to the mother who holds custody, the mere fact that the mother holds custody by law is not sufficient on its own, and the mother can file a lawsuit under these circumstances. In the same decree, it was stated that the mother’s request regarding custody actually encompasses the delivery of the child to her.
Following the rendering of the judgment, the process is carried out through the Directorates of Legal Support and Victim Services (ADM). Indeed, following the regulation enacted on November 30, 2021, via Law No. 7343, procedures regarding the delivery of children were removed from enforcement offices and transferred to the ADM.
Within this framework, delivery procedures are carried out by expert personnel, observing the best interests of the child. When necessary, support from law enforcement forces is obtained to ensure the physical delivery of the child. This amendment aims to conduct the process in a less distressing and more controlled manner.
At this point, it must also be noted that removing a child from the custody holder or failing to deliver the child is not merely a matter of family law. Under the Turkish Penal Code, such acts may constitute a criminal offense. In cases where the child is held, hidden, or not returned to the custody holder against the child’s or holder’s consent, it is possible to file a criminal complaint with the Chief Public Prosecutor’s Office.
In practice, the process usually progresses through two tracks. While a lawsuit regarding the delivery of the child is filed before the family court on one hand, an application is made to the prosecutor’s office to initiate a criminal investigation on the other. Conducting these two processes concurrently contributes to a swifter execution of the child’s delivery.
Another situation that requires particular attention is the removal of the child abroad. Taking a child to another country or detaining them abroad without the consent of the custody holder entails severe consequences not only under domestic law but also under international law. In such cases, a process characterized as “international child abduction” arises.
In this scenario, the 1980 Hague Convention and the relevant legislation enter into force. The objective is to secure the prompt return of the child to their habitual residence from the country to which they were wrongfully removed or where they are being wrongfully retained.
In conclusion, as a rule, custody of children born out of wedlock belongs to the mother. However, the essential aspect is that this right can be exercised de facto. Therefore, in cases where the child is not delivered or is wrongfully retained, legal remedies must be pursued without delay.
Since every case possesses its own unique circumstances, it is of paramount importance to seek legal counsel from an attorney and manage the process correctly in such situations.
