Child Relocation 2023 Comparisons

Under Turkish Law, parental responsibility is a right and a responsibility at the same time. This right also places responsibilities on the parent such as taking and performing required decisions about childcare and the child’s education, with consideration of the best interests of the child (Article 339 of the Turkish Civil Code), educating the child within the bounds of possibilities, providing and protecting their physical, mental, spiritual, moral and social development (Article 340 of the Turkish Civil Code).

Under Turkish law, parental responsibility is a matter which clearly concerns public order. Therefore, it is not possible to regulate/transfer it with an agreement or deed of consent. Moreover, it should be noted that parental responsibility is strictly attached to the person, so it is not possible to transfer it to someone else and it cannot be waived.

The parental responsibility of the mother is regulated under Article 282 of Turkish Civil Code No 4721 as parentage between mother and child is established by birth. Where a child is born within a marriage, parental responsibility belongs to both parents and starts with the birth of the child, continuing until the child is 18 years old.

Where a child is born out of wedlock, the mother still has parental responsibility starting from the birth of the child and does not need to meet any criteria in order to obtain parental responsibility, as the woman who gives birth to the child is deemed to be the mother under the above-mentioned article of the Turkish Civil Code.

As mentioned above, where a child is born within marriage the parental responsibility belongs to both parents during the marriage and none of the parents needs to meet any criteria in order to obtain parental responsibility.

Where a child is born out of wedlock, the child’s parental responsibility belongs to the mother as the parentage is established by birth between a child and a mother under Turkish law. However, the father needs to meet some criteria or take legal action in order to obtain parental responsibility.

The following three options are available to a father seeking to obtain parental responsibility.

• Marrying the mother after the child is born – The child should be registered at the civil registry after the marriage. However, this is just a declaration, not an element that starts parental responsibility for the father. Where the parents get married, both parents exercise parental responsibility as if the child were born during the marriage, and the same provisions apply.
• Officially recognising the child as his – The father should make a declaration before the Civil Registry Offices/Consulate/court in order to be registered as the father in the child’s records. The father can do this only if the child’s paternity is not established as being some other male. For example, where the child is born while the mother is married to someone else or within the period of 300 days after the marriage of the mother has been dissolved, the husband of the mother shall be registered as the father. The husband being the father of a child born during marriage is a legal presumption and this can only be challenged by the husband of the mother by making a court application to challenge the paternity of the child. Where the paternity link between the husband and the child is removed, then the actual father can make an application to be registered as the father. Where the husband and/or the child do not make such application to challenge the paternity of the child, the real father does not have this opportunity to make an application or claim that he is the actual father.
• Paternity lawsuit – This lawsuit can be filed either by the mother or the child when they are at least 18 years old (adult).

Adoption is the only way for a “non-genetic” parent to exercise parental responsibility over a child under Turkish law. In order to adopt a minor in general, the minor should be taken care of and educated by the adopting parent for a year, as regulated under Article 305 of the Turkish Civil Code. The adoption should serve the best interests of the minor and the best interests of the other children of the adopting parent should not be unfairly damaged.

A married couple can only adopt together and, if a couple is not married, they cannot adopt together. The married couple should be married for at least five years or they should be over 30 years old. One of the spouses can adopt the other’s child if the couple is married for at least two years or that spouse is over 30 years old.

An unmarried individual can adopt if they are over 30 years old. A spouse who is over 30 years old can adopt solely, with a court order, if they can prove:

• the other spouse’s permanent absence of the power of discernment;
• the other spouse’s whereabouts have been unknown for over two years; or
• the couple have been living apart for over two years.

The adopting parent should be at least 18 years older than the adopted party. Where the minor has ability to distinguish, they cannot be adopted without their consent.

The minor’s parents should consent to this adoption and this consent cannot be given until six weeks after the child’s birth. Consent can be withdrawn within six weeks by following the same procedure. Where consent is given again after being withdrawn, it is a certain consent and cannot be withdrawn again. The consent of the birth parents shall not be sought for adoption in the following circumstances:

• it is not known who they are or where they are for a long time; or
• they do not have the power of discernment; or
• they do not exercise their duty of care towards the minor.

Please see 1.4 Requirements for Non-genetic Parents.

As explained above, only a married couple can adopt together under Turkish law. In addition to this, same-sex marriage is not allowed or legally regulated under Turkish law. Under the Turkish Civil Code, marriage consists of one man and one woman. The relevant application process is described as including “one man and one woman” under Articles 134 and 136 of the Turkish Civil Code.

Thus, it is not possible for same-sex couples to adopt and have parental responsibility over a child together. However, single individuals, regardless of their sexual orientation, can adopt a child as explained above. Thus, where a same-sex couple is not married in Turkey, they can together exercise parental responsibility over a child who is adopted by one of the parties. However, this is only a practice, and caring for a partner’s adopted child does not grant any legal rights or parental responsibility to the non-adopting party.

See 1.4 Requirements for Non-genetic Parents and 1.6 Same-Sex Relationships.

Where a child is under the joint custody of the parents, the left-behind parent’s consent to relocation is required. However, where the child’s parental responsibility belongs to one parent only, this parent does not need the consent of the other parent in order to take the child out of the country. Yet, parental responsibility also includes the right to travel, which is a right secured under the Constitution. The Turkish Supreme Court’s views on this are as follows.

“As a natural outcome of the parent who has the parental responsibility exercising his/her parental responsibility, taking the child abroad is not subject to his/her ex-spouse’s consent.” (Decision file numbered 2015/11374, decision numbered 2015/12897 and dated 17 June 2015 of the 2nd Civil Chamber of the Supreme Court.)

“As a natural outcome of exercising the parental responsibility, the mother who has the parental responsibility is not subject to the father’s consent for her to travel both in the country and outside of the country with the common child. Accepting that the common child’s travels in the country and outside of the country subject to the father’s approval will prevent the mother from exercising her parental responsibility and will also restrict the child’s right to travel [file numbered 2012/2-779, numbered decision 2013/389 of the Assembly of the Civil Chambers of the Supreme Court]. With these reasons explained, the mother’s lawsuit filed against the father’s joined file should have been accepted…” (Decision file numbered 2016/4036, decision numbered 2016/5518 and dated 21 March 2016.)

Under the Turkish Civil Code, in case of important changes in the divorced spouses’ lives (parents remarrying other people, moving elsewhere or dying, etc), the necessary measures shall be taken ex officio or upon the notification of one of the parties.

Although the parent who has parental responsibility does not need the consent of the left-behind parent to relocate to another country with the common child, the left-behind parent can make an application to the Turkish court for “re-consideration of the parental responsibility”. “The change of parental responsibility” lawsuit may come to the table at this point as relocation to another country with the common child may be alleged, by the left-behind parent, to be a misuse of parental responsibility .

In addition to the above, the left-behind parent can also argue that their right to visitation is also hindered by this relocation, which is another reason for a change of parental responsibility.

Where parental responsibility belongs to and is exercised by one of the parents, the other parent’s permission is not sought to take the child out of the country, provided that the left-behind parent can make some applications for change of parental responsibility but cannot prevent the relocation of the child in practice.

In addition to the above, where parental responsibility belongs to both parents and is exercised by both parents, the left-behind parent is asked to provide a deed of consent, issued before a notary public, agreeing to the child leaving the country with the other parent. In many cases, without this document, the child and the parent who intends to leave the country with the child cannot leave the country. However, where the child is being taken to a country that does not require a visa, or for which the child has citizenship, such deed of consent may not be required and one of the parents may take the child out of the country.

No application can be made before Turkish courts in order to seek permission from court to relocate or not to relocate to another country with the child. As discussed earlier, parental responsibility is closely bound with public order and the right to parental responsibility may not be transferred/removed/intervened with by any other means.

Once a child is taken abroad, leaving a parent who has parental responsibility behind, an international child abduction application comes to the table as a possible legal means to apply.

Under Turkish law, matters related to parental responsibility are governed by the Turkish Civil Code No 4721. Article 182 of the Turkish Civil Code defines parental responsibility as a shared duty and right of parents to care for and raise their children. This includes making decisions related to the child’s upbringing, education and place of residence. However, this shared duty does not mean that both parents have equal physical custody of the child.

When a parent wishes to relocate with the child within Turkey, the courts typically consider factors such as the distance of the proposed relocation, the potential disruption to the child’s education and social life, the existing visitation arrangements with the other parent, and the parent’s motives for the relocation. Turkish courts are generally more inclined to allow such relocations if they are deemed to be in the best interests of the child, which is the primary consideration under the Turkish Civil Code.

In cases where the relocation involves another country, Turkish courts may approach the matter with increased scrutiny. This is primarily due to the fact that an international relocation may significantly impact the child’s relationship with the left-behind parent and pose challenges in terms of implementing visitation rights. While considering this proposed relocation, Turkish courts will consider the child’s relationship with both parents, the quality of life they may have in the new country, the availability of support systems, the potential for maintaining regular contact with the left-behind parent, and the child’s own wishes depending on their age and maturity. Moreover, evidence related to the parent’s motives, such as job opportunities or family support, may also be considered.

It is essential to emphasise that, regardless of the specific circumstances or whether the relocation is to be made within the country or to another country, Turkish courts always prioritise the child’s best interests above all else. This approach aims to ensure that any decision made regarding parental relocation promotes the child’s overall well-being and minimises any potential harm or disruption to their life.

It is illegal to take a child out of the country and jurisdiction without the relevant consent required.

Where a child has been removed from Turkey without the relevant consent, the parent who has parental responsibility (solely or by sharing it with the parent taking the child out of the country) may file an application to seek the return of the child under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

Such application should be made immediately to the central authority as regulated under the Convention; the central authority for the Republic of Turkey is the Ministry of Justice. The application should contain the following:

• application form;
• information identifying the requesting party;
• information identifying the child;
• information identifying the alleged abductee party;
• date of birth of the child;
• merits upon which the return application relies;
• information on whereabouts of the child and the person whom the child is thought to be with;
• current photos of the child and the abductee party to allow authorities to recognise their appearances;
• documents and court orders which prove the parental responsibility rights and their holder; and
• translations into the language of the country to which the child has been taken (English and French applications may still be valid unless the country to which the child has been taken clearly indicated that the application should be made in their own language).

In addition to the above, the central authority may seek authorisation certification to be issued for the applicant to appoint a representative to act on their behalf.

Once this application is made to the Turkish central authority, that authority contacts the other country’s central authority and forwards the application. Upon the other country’s central authority being notified with this application, the rest of the process shall be led by that country’s central authority, and child abduction cases shall be filed under their own legislation, before their assigned courts or tribunals.

Where the child is abducted to a country which is not one of the signatory states of the Hague Convention on the Civil Aspects of International Child Abduction, the above process shall not apply to that case. Although the non-Hague Convention country may not be legally bound by the Hague Convention, Turkish authorities may engage with diplomatic channels, through the Ministry of Justice or Ministry of Foreign Affairs, to request their assistance. Depending on the bilateral agreements and diplomatic relations between Turkey and the country in question, mutual co-operation might be possible.

Legal Aid

Turkey has issued the Law on Legal Aspects and Scope of International Child Abduction No 5717, which regulates how the Hague Convention on the Civil Aspects of International Child Abduction should be applied in Turkey. Article 28 provides that those making an application under the Hague Convention may benefit from legal aid.

Regarding legal aid under the Turkish legal system, individuals who lack the means to afford the expenses associated with initiating a legal proceeding are eligible to receive legal assistance for any civil matters, including international child abduction cases. As a result, the applicant will not be required to cover the legal fees, court fees and costs of legal advice or representation fees incurred for the services of the lawyer assigned by the local Bar Association.

As mentioned above, legal assistance includes expenses related to court fees, attorney charges, and fees for court-ordered expertise. Nevertheless, legal aid does not encompass any expenses that the individual may be required to pay to the opposing party, specifically their attorney fees if they happen to lose the case.

In addition to this, Article 27 of the Law on Legal Aspects and Scope of International Child Abduction also provides that the lawsuits and other legal transactions arising from this law are not subject to any court fees, which is another practical convenience for the applicant.

Return of the Abducted Child

In the Turkish jurisdiction, courts are dedicated to applying the principles set forth in the Hague Convention on the Civil Aspects of International Child Abduction, including the underlying principle of the immediate return of the child. While they strive to adhere to the Convention, it is important to note that the legal process in Turkey may occasionally extend beyond the expected timeframe outlined in the 1980 Hague Convention. Factors such as the complexity of individual cases and the courts’ workload can contribute to delays in the resolution of international child abduction cases. However, it is believed that the courts are committed to achieving a fair resolution in accordance with the Convention’s objectives.

As mentioned above, where the child is abducted to a country which is not one of the signatory states of the Hague Convention on the Civil Aspects of International Child Abduction, although the non-Hague Convention country may not be legally bound by the Hague Convention, Turkish authorities may engage with diplomatic channels, through the Ministry of Justice or Ministry of Foreign Affairs, to request their assistance. Depending on the bilateral agreements and diplomatic relations between Turkey and the country in question, mutual co-operation might be possible.

In addition to bilateral agreements and diplomatic relations, some other common Acts and Conventions may be relied on to seek a conclusion on the matter. However, it should be noted that none of these can be taken as the basis for a certain return in the case of international child abduction to a country which is not a signatory state to the Hague Convention on the Civil Aspects of International Child Abduction.

The Uniform Child Custody Jurisdiction Act (UCCJA) possesses international implications as it can be employed to establish the appropriate jurisdiction for conducting custody hearings, considering the child’s habitual or primary residence. Similar to the Hague Convention, the UCCJA maintains the principle that custody proceedings should take place in the jurisdiction where the child has their habitual residence.

The Convention on the Rights of the Child also presents a highly favourable means of implementation. Its provisions ensure the prioritisation of a child’s “best interests”, encompassing their entitlement to receive care from and maintain communication with their parents, the freedom for children and their parents to travel across borders to maintain contact, and the right for children to express their views and be involved in decisions that impact their lives.

However, while such international treaties and diplomatic relations may be of help in concluding a matter when a child is abducted to a country which is not a signatory to the Hague Convention, they do not guarantee a certain return of the abducted child.

Costs, Expenses and Timeframe

As mentioned above, by virtue of Article 27 of the Law on Legal Aspects and Scope of International Child Abduction, the applicant is exempt from any court and application fees. However, during the application, there might be some fees for the paperwork, such as translations of documents which are originally in a foreign language. If the applicant is represented by an attorney, who is not appointed by the local Bar Association due to the applicant not having sufficient financial means, they should also bear the costs of hiring that attorney.

In addition, sometimes the court may appoint experts (translators, social examination experts, etc) and ask for parties to cover their costs. Where the applicant would like their witnesses to be heard, the notification to be made to witnesses to subpoena them to the court may also require some costs.

It should be noted that where the applicant wins the case, and it is decided to return the child to their habitual residence, the defendant party would be ordered to pay back such costs.

As known, the Hague Convention foresees that such disputes will be resolved in six weeks. However, where a child is abducted to Turkey, even forwarding the paperwork from the central authority to the local chief public prosecutor’s office (they lead the investigations and file the abduction case, if necessary, on behalf of the Turkish central authority) may take several weeks. In addition to this, the Turkish legal and court structure does not have special courts dealing with international child abduction cases only. Therefore, these cases are always filed before the relevant local family courts, which also have other caseloads arising from other types of family law disputes. Given their busy schedule and heavy workload, scheduling hearings for international child abduction cases and concluding these cases may exceed six weeks. The proceedings may take from one month to nine months before a local court, depending on various factors such as the complexity of issues, availability of evidence and number of witnesses.

Once the local court makes a decision about whether to return the child, this decision is subject to an appeal in case of either party’s application. This appeal process before the Regional Court of Justice may take from three to six months. It is also possible to appeal against the decision made by the Regional Court of Justice before the Turkish Supreme Court and their examination may take around one to two months. In total, the finalisation of the process may conclude in a year or two, depending on the factors listed above.

All the appeal processes also require some court fees and costs to be deposited with the court. In case of success, such costs are also recoverable from the defendant party. For a general idea of costs, such proceedings may cost around 250GBP for the applicant (approximate and may vary depending on the case), not including the fees of an attorney hired for representation.

Turkey is a signatory country to the Hague Convention.