T.R.
SUPREME COURT
LAW OFFICE
2016/15771 E. 2017/1737 K. 20.2.2017 T
CASE: At the end of the trial between the parties, the judgment given by the local court, the date and number of which is shown above, was appealed by the plaintiff father, the document was read and the necessary was discussed:
DECISION: The parties are British citizens. The plaintiff father requested joint custody of the joint child Chelsea Lynsey B., who was born out of wedlock, by giving custody to the mother and father.
In summary, the court: Although it is possible to arrange joint custody for children born out of wedlock according to the national law of the parties, the case was dismissed on the grounds that the arrangement of joint custody is contrary to Turkish public order.
The provisions of the paternity are governed by the law establishing the paternity. However, if there is a common national law of the mother, father and child, that law is applied to the provisions of paternity, and if not, the law of common habitual residence is applied (MÖHUK art. 17/1).
In the event that the provision of the competent foreign law applicable to a particular event is clearly contrary to the Turkish public order, this provision shall not be applied; where deemed necessary, Turkish law shall apply. ( MÖHUK m.5/1 ).
The dispute to be resolved in the concrete case is to determine whether the arrangement of “joint custody” is clearly contrary to the Turkish public order.
In this context, first of all, it is necessary to look at the legal regulations in our domestic law. The legal regulations regarding our subject in our domestic law are as follows.
When deciding on divorce or separation, the court regulates the rights of the parents and their personal relations with the child, after listening to the parents whenever possible and after taking the opinion of the guardian and the guardianship if the child is under guardianship.
The benefits of the child, especially in terms of health, education and morals, are taken as a basis in the regulation of the personal relationship of the spouse, who is not given custody, with the child. This spouse has to participate in the child’s care and education expenses in proportion to his power (TMK m. 182/1-2).
The minor child is under the custody of his parents. Unless there is a legal reason, custody cannot be taken from the parents.
Unless the judge deems it necessary to appoint a guardian, restricted adult children also remain under the custody of their parents (TMK m. 335).
As long as the marriage continues, the parents use the custody together.
If the joint life has been terminated or separation has occurred, the judge may give custody to one of the spouses.
In the event of the death of one of the parents, custody belongs to the survivor, and in divorce, to the party to whom the child is left” (TMK m.336).
If the parents are not married, the custody belongs to the mother.
If the mother is minor, limited or dead or if the custody is taken from her, the judge assigns the guardian or gives the custody to the father according to the child’s interest (TMK m.337).
Signed on behalf of the Republic of Turkey on March 14, 1985, “Protocol no. 11 and Additional Protocol No. 7 to the Convention on the Protection of Different Human Rights and Fundamental Freedoms” was approved by Law No. 6684, published in the Official Gazette dated 25.03.2016 and entered into force. has become. According to Article 5 of Protocol No. 7, “Spouses are equal in terms of rights and responsibilities of private law in their relations with each other and with their children in terms of marriage, during marriage and in the event of the end of the marriage. This article shall not prevent states from taking the necessary measures for the benefit of children”.
International agreements duly put into effect have the force of law. It is not possible to apply to the Constitutional Court about these with the claim of unconstitutionality. In case of conflicts that may arise due to the fact that the International Treaties on fundamental rights and freedoms that have been duly put into effect and the laws contain different provisions on the same subject, the provisions of the International Treaty shall prevail. (Constitution of the Republic of Turkey m.90/end).
After looking at the legal regulation related to domestic law, it will be useful to dwell on the concept of “public order” (ordre puplic) for the resolution of the conflict.
It is not easy to give a complete description of the public order that would express all its features. A general definition; “Public order rules are all of the institutions and rules that serve to ensure the good performance of public services in a country, the safety and security of the state, and compliance with the rules of peace and morality in the relations between individuals”. Within this general framework, the rules of public order can be explained as the rules that protect the basic structure and basic interests of a society. (Prof. Dr. Aysel Çelikel-Prof.Dr. B. Bahadır Erdem, International Private Law Press-page:149).
Generally; The basic principles of the legal system aiming at social development and protecting personal rights and freedoms, the basic principles of the constitution and the current customs and morals in the society can be expressed as values representing public order, and foreign law or provision of foreign law that does not clearly comply with these values It can be said that it will not be applied as a violation of the order. Foreign law or provision of foreign law
If the result of its application in the concrete case creates an intolerable situation in the face of the basic principles and values stated above, foreign law is not applied on the ground that foreign law clearly violates the public order. Here, the “negative effect” of the public order that hinders the application of foreign law is mentioned. The concept of public order is broad, ambiguous, relative and variable (Prof.Dr.Cemal Şanlı-Doç.Dr.Emre Esen- Assist.Prof.İnci Ataman-Figanmeşe, International Private Law-4th Edition-page: 72-73-78) .
In Turkish law, public order (ordre puplic, public order) has an exceptional duty that prevents the application of foreign law. Foreign law authorized by our conflict of laws rules has the opportunity to be applied provided that it does not “clearly” contradict the public order of the country (MÖHUK art.5). Therefore, public order is not a unilateral “binding rule” of conflict of laws for us. On the contrary, the conflict of laws is an exception to the principle of application of the foreign legal order, which our rule shows (Prof.Ergin Nomer-Prof.Cemal Şanlı, International Special Law, 18th edition-page: 159)
“…The enforcement of a foreign decision cannot be refused for reasons such as the fact that the fundamental law is different in Turkish Law or that it is contrary to the mandatory rules of Turkish Law. The criterion that should be taken as a basis here is that the foreign decision is not contrary to the provisions of one or more laws in Turkish Law, but rather to the basic values of Turkish Law, the Turkish general understanding of morality and morality, the basic understanding of justice and legal policy on which Turkish laws are based, and the fundamental rights and freedoms in the Constitution. It should be looked at the common and accepted legal principles valid in the international arena, bilateral agreements, understanding of morality and justice adopted by developed societies, civilization level, political and economic regime.
(Decision of Unification of Supreme Court Jurisprudence dated 10.02.2012 and numbered 2010/1 M, 2012/1 K.).
According to the explanations about our domestic law and the concept of public order mentioned above, when the concrete case is evaluated, it is not possible to say that the arrangement of “joint custody” is “clearly” against the Turkish public order or that it violates the basic structure and basic interests of the Turkish society.
Then, by the court, MÖHUK m. Pursuant to 17/1, while it is necessary to make a decision regarding the case regarding the “joint custody” request, taking into account the regulations regarding the custody in the joint national law of the parties who are British citizens, by entering the essence of the matter and evaluating all the evidence together, it is necessary to make a decision in writing, stating that the request is contrary to the Turkish public order. Its establishment necessitated dismantling.
CONCLUSION: It was unanimously decided on 20.02.2017 that the appealed judgment be OVERROUND for the reason explained above, that there is no need to examine other appeals for the time being based on the reason for reversal, and that the appeal fee will be returned to the depositor, if requested, within 15 days from the notification of this decision, with the possibility of rectification. .