T.C.

SUPREME

LEGAL DEPARTMENT

2016/15771 E. 2017/1737 K. 20.2.2017 T.

Request for a custody arrangement of foreigners (plaintiff Foreign father wants joint arrangement of custody by granting custody of the Joint Child out of wedlock to the parents – ” joint custody ” arrangement is not “clearly” contrary to the Turkish public order/a decision must be made by entering into the basis of the work )
(”Joint custody ” arrangement is not “clearly” contrary to the Turkish public order – the basis of the work shall be entered into considering the custody arrangements in the Joint National Law of the parties who are British citizens. )
The concept of outright contradiction to the public order ( yardstick to be taken as a basis the foreign decree will be to look at the basic values of Turkish law, the Turkish General understanding of morality, the basic sense of Justice on which Turkish laws are based, and the politics of law, the basic rights and freedoms contained in the Constitution, common and accepted principles of law )
Arrangement of custody of a joint CHILD outside marriage (”joint custody “arrangement is not” clearly” contrary to the Turkish public order – the basis of the work will be entered into considering the custody arrangements in the Joint National Law of the parties who are British citizens )
Summary: The parties are British citizens. The plaintiff father sought joint custody by granting the parents custody of their joint child, born out of wedlock, born in 2003. The dispute that needs to be resolved in the concrete case is aimed at determining whether the arrangement of “joint custody” is clearly contrary to the Turkish public order. “…The enforcement of the Foreign decision cannot be denied on the grounds that the law applied on the basis is different in Turkish law or is contrary to the ordering rules of Turkish law. The yardstick that need to be considered here, and a stranger in Turkish law, the provisions of the law was found in violation of one or more VERY, the basic values of Turkish law, Turkish law, Turkish law, basic fairness and general manners and morals of the politics of the Constitution on fundamental rights and freedoms, current and generally accepted legal principles common in the international arena, bilateral agreements, which have been adopted in developed societies an understanding of common morality and justice, you must have a look civilization to the level of the political and economic regime” ( 10.02.2012 date, and e 2010 / 1 is, 2012/1 K.decision to merge case law of the court of Cassation ).

When the concrete event is evaluated according to the explanations related to our domestic law and the concept of public order mentioned above, it is not possible to say that the arrangement of “joint custody” is “clearly” contrary to the Turkish public order or violates the fundamental structure and fundamental interests of Turkish society. Then by court, MÖHUK m. 17/1 it is necessary to make a decision on the case for “joint custody” by taking into account the arrangements for custody in the Joint National Law of the parties who are British citizens, by entering into the basis of the work and evaluating all the evidence together.

Case: at the end of the judgment of the case between the parties given by the Local Court, the verdict shown above the date and number of Appeals by the plaintiff father, the document was read and discussed and considered as necessary:

Verdict: the parties are British citizens. Claimant father, Joint Child Chelsea Lynsey B., born 24/10/2003, born out of wedlockhe wanted joint custody to be granted to the parents.

In summary, although it is possible to arrange joint custody for children born out of wedlock according to the National Law of the parties, it was decided to dismiss the case on the grounds that the arrangement of joint custody is contrary to the Turkish public order.

The provisions of the genealogy are subject to the law that establishes the genealogy. However, if the mother, father and child have a common national law, then the provisions of the family law, if not, the common customary law of residence shall be applied ( MÖHUK m. 17/1 ).

If the provision of the competent foreign law applied to a particular event is clearly contrary to the Turkish public order, this provision shall not be applied; if deemed necessary, Turkish law shall be applied. ( MÖHUK m.5/1 ).

The dispute that needs to be resolved in the concrete case is aimed at determining whether the arrangement of “joint custody” is clearly contrary to the Turkish public order.

In this context, we should first look at the legal arrangements in our domestic law. The legal arrangements related to our subject in our domestic law are as follows.

The court, when deciding on divorce or separation, regulates the rights of the parents and their personal relations with the child after hearing the parents and receiving the opinion of the Guardian and the guardianship authority if the child is under guardianship, as far as possible.

In the arrangement of the personal relationship between the child and the spouse who is not given custody, the benefits of the child, especially in terms of health, education and morality, are taken as the basis. This spouse must participate in the child’s care and education expenses at the rate of their strength (TMK m. 182/1-2 ).

An adolescent is under the custody of his parents. Custody cannot be taken from parents unless there is a legal reason.

Unless the judge deems it necessary to appoint a Guardian, the restricted adult children also remain under the custody of the parents ( TMK m. 335 ).

As long as the marriage continues, the parents use custody together.

The judge may grant custody to one of the spouses if the joint life has been terminated or a state of separation has occurred.

Custody belongs to the survivor in the event of the death of one of the parents, and in the divorce the child belongs to the party left to him” ( TMK m.336 ).

If the parents are not married, the mother has custody.

If the parent is a minor, restricted or deceased, or custody has been taken from him, the judge shall appoint a guardian or grant custody to the father, in the interest of the child ( TMK m.337 ).

Signed on 14 March 1985 on behalf of the Republic of Turkey “Protocol No. 11 and Protocol No. 7 annex to the Convention on the protection of different human rights and fundamental freedoms”, approved by Law No. 6684, published in the Official Gazette dated 25.03.2016 and entered into force and became our domestic law. Annex 5 of protocol number 7. according to the article, “spouses, in terms of marriage, during the marriage and in the case of the end of the marriage, their relations between themselves and their children, are equal in terms of rights and responsibilities of the nature of private law. This article does not prevent states from taking the necessary measures for the benefit of children”.

The international treaties enacted according to the procedure are under the law. They cannot be appealed to the Constitutional Court for alleged unconstitutionality. International treaties and laws relating to fundamental rights and Freedoms, which have been enacted according to the procedure, contain different provisions on the same subject. (Constitution of the Republic of Turkey m.90 / son).

After looking at the legal arrangement related to domestic law, focusing on the concept of “public order” ( ordre puplic ) would be useful for the settlement of the dispute.

It is not easy to make a complete description that will express all the characteristics of public order. In a general definition,”the rules of Public Order are all the institutions and rules that ensure that public services are performed well in a country, the security and order of the state, and compliance with the rules of peace and morality in the relations between individuals”. Within this general framework, rules of public order can be explained as rules protecting the fundamental structure and fundamental interests of a society. (Prof. Dr.Prof.Dr. B. Bahadır Erdem, International Private Law 1l.press-page: 149).

In general, 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 customary and ahlk ideas that are present in society can be expressed as values representing public order, and it can be said that foreign law or foreign law provision that does not clearly correspond with these values shall not be If the result of the application of foreign law or the provision of foreign law in concrete cases creates an intolerable situation in the face of the basic principles and values mentioned above, then the foreign law does not apply, as it clearly violates the public order. Here, the “negative effect”of public order preventing the application of foreign law is mentioned. The concept of Public Order is broad, vague, relative and variable ( Prof.Dr.Cemal Şanlı-Assoc.Dr.Emre Esen-Asst.Assoc.Inci Ataman-Figanmeşe, International Private Law-4.Press-pages: 72-73-78).

In Turkish law, public order (ordre puplic, public order ) has an exceptional duty that prevents the application of foreign law. The foreign law authorized by our rules of conflict of laws has the possibility to be applied provided that it does not constitute a “clear” violation of the public order of the country ( MÖHUK m.5 ). Therefore, public order is not a unilateral “binding principle” of conflict of laws for us. On the contrary, the conflict of laws is an exception to the principle of the application of the foreign legal system demonstrated by our rule ( Prof.Ergin Nomer-Prof.Cemal Şanlı, States Private Law, 18.press-page: l59 )

“…The enforcement of the Foreign decision cannot be denied on the grounds that the law applied on the basis is different in Turkish law or is contrary to the ordering rules of Turkish law. The criteria that should be taken as a basis here should be to look at the basic values of Turkish law, the Turkish general understanding of manners and morals, the basic sense of justice on which Turkish laws are based and the politics of law, the basic rights and freedoms contained in the Constitution, the common and accepted principles of law applicable internationally, the bilateral agreements, the”

(Dated 10.02.2012 and 2010/1 E, 2012/1 K.decision to merge case law of the court of Cassation ).

When the concrete event is evaluated according to the explanations related to our domestic law and the concept of public order mentioned above, it is not possible to say that the arrangement of “joint custody” is “clearly” contrary to the Turkish public order or violates the fundamental structure and fundamental interests of Turkish society.

Then by court, MÖHUK m. According to 17/1, while it is necessary to make a decision on the case for “joint custody” by taking into account the arrangements for custody in the Joint National Law of the parties that are British citizens, by entering into the basis of the work and evaluating all the evidence together, the establishment of a written provision by stating that the request is contrary to

Conclusion: it was decided unanimously on 20.02.2017 that there is no room for the annulment of the appellate provision for the reason described above, that there is no room for the examination of the other appellate appeals according to the reason for the annulment, that the Advance Fee for the appeal is returned to the Depositor if requested, and that within 15 days of the notification.