T.R.
SUPREME COURT
LAW GENERAL ASSEMBLY
E. 2012/2-799
K.2013/389
T. 20.3.2013
CASE :
At the end of the trial due to the “custody and child support” case between the parties; Upon the request of the parties’ attorneys to examine the decision dated 27.04.2010 and numbered 2009/427 E., 2010/574 K. given by the Ankara 5th Family Court regarding the rejection of the main case regarding the custody and the acceptance of the counterclaim regarding the child support, the 2nd Court of Appeals. With the decision of the Law Office dated 05.07.2011 and numbered 2010/16826 E., 2011/11499 K.;
( … 1- According to the articles in the file, the evidence on which the decision is based, the legal reasons and especially the fact that there is no mistake in the evaluation of the evidence, the appeal objections of the plaintiff-defendant father are unfounded.
2- As for the examination of the defendant-plaintiff woman’s appeal;
Establishing a personal relationship between M., who was born on 7.12.2005, whose custody is held by the defendant-plaintiff mother, and the plaintiff-defendant father from 09.00 on Saturday to 18.00 on Sunday, will adversely affect the education, physical and intellectual development of the minor due to his age. Prohibition of taking the child abroad creates an obstacle for the defendant-plaintiff mother to fulfill her custody duty. It was not correct to make a written judgment without considering the explained aspects… ),
At the end of the re-trial, the judgment was overturned in terms of custody and the file was turned back to the place of the case; In terms of custody, the court resisted in the previous decision.
After it was examined by the General Assembly of Law, it was understood that the decision to resist was appealed in due time and the papers in the file were read, the necessity was discussed:
DECISION :
The main case is custody; The counterclaim is about the request for alimony.
The attorney of the plaintiff-counter-defendant (father), M., who was born out of the extra-marital relations of his client and the defendant, was recognized by the plaintiff father and gave his own surname. Stating that he was fine, he demanded and sued that the custody of little M. be given to his client.
The attorney of the defendant-counter-plaintiff (mother) stated that the claims of the plaintiff did not reflect the truth, and demanded with a counterclaim that the main lawsuit be rejected and 500.00 TL child support be awarded for the joint child.
From the scope of the file; The parties have a daughter named M., who was born on 07.12.2005 from their extra-marital relations, the plaintiff father recognized the child on 09.06.2006 and registered the child in his population, the plaintiff father later married another woman in 2007 and has no children from this marriage yet, the defendant mother is a foreign citizen. it is understood to be.
In addition, during the trial, the court decided to establish a personal relationship between the young child M. and the plaintiff’s father and to prohibit the young child from going abroad.
Taking into account the expert’s report that the court’s presence with the mother would be in the best interests of the child, the rejection of the request for joint custody of the child to be given to the plaintiff father in the main case, with the acceptance of the request regarding the personal relationship; joint child between MT born on 07.12.2005 and the plaintiff father, every week at 09:00 on Saturday mornings at 18:00 on Sunday evening, at 09:00 on the second day of religious holidays, at 18:00 on the third day, every year until little M. turns 6 years old. To establish personal relations between 09:00 in the morning on July 1, 18:00 in the evening on July 20, between 09:00 in the morning on July 1st and 18:00 in the evening on July 31, after turning 6 years old, and between 12:00 in the evening and 18.00 in the evening of official holidays; in terms of the demands of the defendant-counter-plaintiff (mother); Upon the appeals of the attorneys of the parties, the decision of the joint child MT, regarding the continuation of the prohibition of going abroad, to be paid to the defendant-counter-plaintiff mother, by taking the same amount from the plaintiff father, after the decision becomes final, of the 500.00 TL child support determined for the minor child. , The part related to child support has been approved by the Special Chamber; however, in terms of personal relationship, the provision was overturned for the reasons stated above.
By the court; The previous decision regarding personal relations was resisted on the grounds that “it cannot be said that the personal relationship with the child will affect the development of the child negatively every week, that the experts are in favor of joint custody, which is not regulated in Turkish Law, that frequent relations will serve this purpose, that the mother may be a foreigner and may not bring the child abroad”.
The provision regarding the alimony between the parties in the counterclaim has been finalized and is out of dispute.
Dispute brought before the General Assembly of Law through resistance;
1- Whether establishing a personal relationship between M., who was born on 7.12.2005, whose custody is held by the mother, and his father from 09.00 on Saturday to 18.00 on Sunday will adversely affect the education, physical and intellectual development of the minor as of his age;
2- Whether the decision to ban the child from being taken abroad will prevent the mother from fulfilling her guardianship duty.
;
According to the conclusion to be reached here, the local court decides whether the provision on the regulation of personal relationship is appropriate or not.
At this point, it would be useful to evaluate the grounds of resistance of the local court separately.
a) In the evaluation made in terms of the ban on going abroad;
The prohibition of the minor’s departure abroad due to the fear that the joint child may be smuggled abroad by the mother, besides hindering the custody of the mother, is also against the freedom of travel, which is a fundamental right regulated in the 1982 Constitution due to its continuity (art. 23).
Fundamental rights and freedoms can only be limited by law for a certain period of time, without prejudice to their essence, depending on the reasons specified in the relevant articles of the Constitution (article 13).
According to Article 23 of the Constitution, it is not possible, in principle, to limit the freedom of travel permanently. This freedom can only be temporarily limited as a precautionary measure for the protection of the child.
In addition, in the second paragraph of Article 2 of Protocol No. 4 (1968) to the European Convention on Human Rights (Convention Relating to the Protection of Human Rights and Fundamental Freedoms) titled “freedom to travel within the territory of a state and freedom to leave its country”. ; “Everyone is free to leave any country, including his own.>
In the third paragraph of the same article; “No restrictions shall be placed on the exercise of these rights other than those necessary and lawful in a democratic society in the interests of national security or public safety, for the protection of public order, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Freedom of travel by saying (Harrıs/O’boyle/Warbrıck: European Convention of Human Rights Law, Translators: Mehveş Bingöllü Kılcı-Ulaş Karan, Joint Project on Strengthening the Roles of High Judiciary Institutions in Terms of European Standards, Council of Europe-Ankara 2013, Page:762), guaranteed.
In the concrete case, it is far from any hesitation that there are no legal conditions to prohibit the departure of the young child, whose mother is a foreign national but is a Turkish citizen, and therefore freedom of travel.
b) In the evaluation made in terms of establishing a personal relationship every weekend;
The right to establish a personal relationship is a right that entitles the mother/father and the child to see each other on certain days or hours, to be aware of each other, to be in each other’s lives, and to be influenced by each other. This right is a right for the child as well as for the mother/father (European Convention on the Establishment of Personal Relationships with Children 2003, article 4/1). In the relationship, besides the satisfaction of the parents’ feelings, the benefit of the child’s physical, intellectual, spiritual, educational and cultural development is also considered. If the benefit of the mother/father and the benefit of the child conflict, the benefit of the child is given priority (Turkish Civil Code No. 4721 art.182/II, 325 and 324).
As visiting days, days and periods that will not cause difficulties and problems for parents and children are preferred. These periods are usually weekends and holidays. the child spends all weekends with the non-custodial parent; It can have harmful consequences for both the parent and the child. Because, on holidays and weekends, the person feels more comfortable and free psychologically. The child spends these privileged days only on one side; Spending the troubled days with the one who undertakes the custody may cause him to move away from the one who undertakes the custody, to become colder and to be tied to the other party.
In such a case, the guardian may not devote much time to his child, and it may be difficult for him to properly fulfill his duty of education and upbringing. In addition, in case of divorce, the child may have difficulty in perceiving that his parents are divorced.
So, it is the most natural right of people to be together with their children on weekends and holidays, which are more convenient in terms of time and when they feel more comfortable, and to share this beauty and comfort.
On the other hand, he will be unable to plan his weekends due to the situation of handing over and taking back the child who is in custody due to the child staying with the parent who is not in custody every weekend.
It is reasonable and fair, then, for parents to share weekends and holidays in a personal relationship, taking into account the child’s age.
Considering the concrete event in the light of the explanations above;
The local court decided to establish a personal relationship between M., who was born on 7.12.2005, whose custody was held by the defendant-counter-plaintiff mother, and the plaintiff-counter-defendant father from 09.00 on Saturday to 18.00 on Sunday, the age of the minor, his education. It is not true as it will negatively affect his body and intellectual development.
On the other hand, as stated above, the prohibition of taking the child abroad; defendant-counter-plaintiff mother, who is understood to be a foreign national, and
It is obvious that it will not only prevent the child from fulfilling his duty of custody, but also result in the restriction of the child’s freedom of movement.
In the face of all these explanations, while it is necessary to comply with the decision to reverse the Special Chamber, which was adopted by the local court and the General Assembly for the additional reasons above, it is against the procedure and the law to resist the previous decision.
Therefore, the decision to resist must be overturned.
CONCLUSION :
With the acceptance of the objections of the defendant-counter-plaintiff’s (mother) attorney, the additional reason for the resistance decision and the reasons given in the decision to overturn the Special Chamber, with reference to the “Temporary Article 3” added to the Code of Civil Procedure No. 6100 with Article 30 of the Law No. 6217. INTERRUPTION pursuant to Article 429 of the Code of Civil Procedure No. 1086, refund of the appeal fee to the depositor upon request, 440/1 of the same Law. It was unanimously decided on 20.03.2013, with the possibility of rectification within 15 days following the notification of the decision.