Temporary Custody And Establishing Personal Contact With The Child in Divorce Proceedings

When a divorce action is filed, the case typically lasts for months. To ensure the child is not left in a state of uncertainty during this period, the Turkish Civil Code imposes a duty on the judge to take interim measures. Under the law, the judge shall, of their own motion (ex officio), take any interim measures necessary during the course of the proceedings, particularly those relating to the care and protection of children.

In this context, the judge may, during the pendency of the case, arrange:

• Which parent the child will reside with (temporary custody),
• Personal contact between the child and the other parent,
• Temporary child support (contribution allowance) to cover the child's expenses.

These interim arrangements may be reassessed throughout the proceedings should circumstances change.

In temporary custody, as in final custody, the sole criterion is the best interests of the child. The judge evaluates the child's age, the bond with each parent, each parent's capacity for care and supervision, the child's accustomed environment, and, where the child has reached the age of discernment, the child's own wishes.

In practice, temporary custody is most often granted to the mother, particularly given the recognition that younger children have a greater need for maternal care and affection. However, this is not an absolute rule; if the child's best interests require a different outcome in a given case, custody may be awarded to the other parent.

A personal contact arrangement is established between the child and the parent to whom custody has not been granted, for the sake of the child's healthy development. The judge determines the scope of such contact with due regard to the child's age and best interests. In practice, personal contact generally encompasses:

• Designated weekends,
• Specific days of official and religious holidays,
• A designated portion of the summer vacation.

The scope of personal contact may be revised as the child grows older or as circumstances change. In cases where the contact is clearly contrary to the child's best interests, it may be restricted or terminated.

In custody and personal contact decisions, the court frequently seeks expert opinions in order to accurately determine the best interests of the child. Family courts employ specialists such as psychologists, pedagogues, and social workers. In the psychologist report or social investigation report prepared by these experts, the child's psychological condition, the relationship with each parent, and which arrangement would be in the child's best interest are assessed.

Furthermore, obtaining the views of a child who has reached the age of discernment is an important factor in determining the child's best interests. In the İzmir Family Courts, these expert assessments constitute one of the fundamental bases informing custody and personal contact decisions.

The parent to whom custody is not granted is obligated to contribute to the child's care, health, and education expenses in proportion to their financial capacity. This contribution is known as child support (contribution allowance). When determining the amount of support, the child's needs and the financial situation of the obligated parent are assessed together.

Child support, as a general rule, continues until the child reaches the age of majority (eighteen years); if the child's education continues, this may give rise to a different type of support for the post-majority period. The amount of support may be reassessed through an action for increase or decrease should circumstances change.

Where decisions regarding custody or personal contact are not complied with, legal remedies are provided for their enforcement. The execution of court orders concerning the delivery of a child and the establishment of personal contact is now carried out, under current regulations, not by enforcement offices but through the Directorates of Judicial Support and Victim Services, in a manner designed to prevent harm to the child. This regulation aims to ensure that the process is conducted with due regard to the child's psychological well-being.

In İzmir, divorce and custody cases are heard at the Family Courts located in the Bayraklı campus of the İzmir Courthouse. Reports prepared by the experts within these courts play a significant role in temporary custody and personal contact decisions. Parties involved in family law disputes in Konak and the surrounding area would benefit from obtaining legal counsel at the outset to ensure that these measures are properly requested.

• Failure to explicitly raise temporary custody and personal contact requests in the petition
• Failure to present concrete facts and documentation regarding the child's best interests
• Failure to exercise the right to file a reasoned objection to the expert/psychologist report
• Requesting child support without documenting the child's actual needs
• Leaving personal contact days and hours vaguely defined, leading to subsequent disputes

Who has custody of the child while the divorce is pending? The judge determines temporary custody based on the child's best interests during the proceedings. Although custody is most often granted to the mother for younger children, the sole criterion is the best interests of the child.

How is personal contact determined? A visitation arrangement is established between the child and the parent to whom custody has not been granted, taking into account the child's age and best interests, covering weekends, vacations, and holidays.

How does a psychologist report affect the custody decision? The psychologist/social investigation report prepared by family court experts assesses which arrangement is most suitable for the child's best interests and informs the court's decision.

How is child support determined? It is determined by jointly assessing the child's needs and the financial capacity of the obligated parent; an increase or decrease may be requested if circumstances change.

What happens if the personal contact order is not complied with? The enforcement of personal contact and child delivery orders is carried out, under current regulations, through the Directorates of Judicial Support and Victim Services.

Where are these cases heard in İzmir? They are heard at the Family Courts of the İzmir Courthouse (Bayraklı); reports prepared by the court's experts are incorporated into the process.

In divorce proceedings, temporary custody, personal contact with the child, and child support are the most critical arrangements for the child's healthy development. The decisive criterion in all these matters is the best interests of the child; psychologist and expert reports also play an important role in determining these interests. Properly and concretely asserting claims at the outset of the proceedings contributes to a process that serves the interests of both the child and the parties involved.

For legal support regarding divorce, custody, and personal contact processes, please contact Yücesoy Attorney Partnership & Law Firm.

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy