T.C.

SUPREME COURT

GENERAL ASSEMBLY OF LAW

Base 2012/2-799

Decision 2013/389

Date 20.3.2013

lawsuit :

At the end of the trial held due to the “custody and subsidiary decimation” case between the parties; Ankara 5. 27.04.2010 day and 2009/427 E, which were issued by the Family Court on the rejection of the main custody case and the acceptance of the counterclaim on subsidiary child support., 2010/574 K. upon the request of the deputies of the parties to examine the decision No. 2, the Supreme Court of Cassation. The date of 05.07.2011 and the date of 2010/16826 E of the Legal Department., 2011/11499 K. with Ref No.;

( … 1- According to the evidence on which the decision is based on the articles in the file, the reasons in accordance with the law, and in particular, there is no inaccuracy in the discretion of the evidence, the appeals of the plaintiff-defendant father are inappropriate.

2- When it comes to the examination of the defendant-plaintiff woman’s appeal request;

M., born on 7.12.2005, whose custody is located in the defendant-plaintiff mother. saturday Sunday from 09.00 to 18.00 on Dec. The establishment of a personal relationship between the plaintiff and the defendant father every weekend will adversely affect the education, physical and intellectual development of the minor as of his age, and the prohibition of the child’s removal abroad prevents the defendant-plaintiff mother from fulfilling her custody duty. It has not been correct to establish a provision in writing without observing the described aspects… ),

At the end of the retrial, the custody decision was resisted by the court in the previous decision, although the judgment was overturned in the custody aspect and the file was returned to its place.

After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:

decision :

The main case is custody; the counterclaim is related to the request for subsidiary child support.

Plaintiff-the deputy of the counter-defendant ( father ), M., who was born from the extramarital relations of the defendant with his client.that the plaintiff’s father, recognizing him, gave him his own surname, M.noting that the little one will not grow up well morally and in many other ways due to the fact that he is on his parents’ side, his client’s living conditions are very good, little M.he requested and sued that custody of the be given to his client.

Defendant-counter-plaintiff (mother) deputy, stating that the plaintiff’s claims do not reflect the truth, requested that the rejection of the original case and the provision of 500.00 TL of subsidiary child support for the joint child be ruled with a counterclaim.

From the scope of the file; M., born on 07.12.2005, is responsible for the extramarital affairs of the parties. it is understood that they have a daughter named after her, the plaintiff’s father recognized the child on 09.06.2006 and registered her in the population, the plaintiff’s father later married another lady in 2007 and has no children from this marriage yet, the defendant’s mother is a citizen of a foreign country.

In addition, at the trial stage, by an interim decision of the court, the minor child M. Dec. it was decided to establish a personal relationship between the plaintiff and his father and to prohibit the young child from dec abroad.

Taking into account the expert report of the court that it would be in the best interest of the child to be with the mother, the refusal of the request to grant joint custody of the child to the plaintiff father in the actual case, with the acceptance of the request for a personal relationship; the joint child was born on 07.12.2005 M. T. saturday Dec Sunday at 09:00, the second day of religious holidays at 09:00 in the morning, the third day at 18:00 in the evening, the little M. dec July 1 July July 09:00, 20 July 18:00, after turning 6 July 09:00, 1 July 09:00 – 31 July 18:00, public holidays noon 12:00 pm 18.00 pm each year until the age of 6 years; defendant-counter plaintiff (mother) claims; the amount of participation support determined for the minor child is the same amount from the plaintiff father after the decision is finalized by obtaining custody of the defendant-to be paid to the mother of the counter-plaintiff, joint child M. T.the part of the decision on the continuation of the ban on going abroad after the decision was finalized was approved by the Special Department on subsidiary child support upon the appeals of the party’s deputies; however, for the reasons mentioned above in terms of personal relationship, the provision was overturned.

The court; “It cannot be said that a personal relationship with a child every week will negatively affect the child’s development, experts are in favor of joint custody, which is not regulated in Turkish Law, frequent relationships will serve it, the mother is a foreigner and may not take the child abroad and bring it back” on the grounds that the previous decision was resisted in terms of a personal relationship.

The provision on the decimation of the participation in the counterclaim between the parties has been finalized and is out of dispute.

The dispute that came before the General Assembly of Law through resistance;

1- M, born on 7.12.2005, who has custody of the mother. saturday Sunday from 09.00 to 18.00 on Sunday, whether the establishment of a personal relationship between the dec and his father every weekend will adversely affect the education, physical and intellectual development of the minor as of his age;

2- Whether the decision to prohibit the removal of the child abroad will create an obstacle for the mother to fulfill her duty of custody;

According to the conclusion to be reached here, whether the provision on the regulation of personal relationship by the local court is in place or not, is collected at its points.

At this point, it is useful for the local court to evaluate the grounds for resistance separately.

a) In the evaluation made in terms of the ban on going abroad;

The prohibition of the exit of the minor abroad due to the concern that the joint child may be smuggled abroad by the mother disrupts the custody duty belonging to the mother, as well as the freedom of travel, which is a fundamental right regulated in the Constitution of 1982 as a matter of continuity (m.23 ).

Fundamental rights and freedoms, without touching their essence, can only be limited for a certain period of time depending on the reasons specified in the relevant articles of the Constitution and only by law ( m.13 ).

Article 23 of the Constitution. according to its article, in principle, it is impossible to constantly limit the freedom of travel. This freedom may only be temporarily restricted by means of measures for the protection of the child.

In addition, October 2 of Protocol No. 4 to the European Convention on Human Rights (Convention on the Protection of Human Rights and Fundamental Freedoms) (1968) entitled “freedom of travel within the territory of a state and freedom to leave its country”. in the second paragraph of the article; “Everyone is free to leave any country, including his own.>

In the third paragraph of the same article,; “No restrictions may be placed on the exercise of these rights other than the necessary and legal restrictions in a democratic society for the benefit of national security or public safety, for the protection of public order, the prevention of crime, the protection of health or morals, or for the protection of the rights and freedoms of others.” ( Harris/O’boyle/Warbrick: The Law of the European Convention on Human Rights, Translators: Mehvesh Bingöllu Kilci-Ulaş Karan, Joint Project on Strengthening the Roles of Higher Judicial Institutions in Terms of European Standards, Council of Europe-Ankara 2013, Saifah: 762 ) Freedom of travel is guaranteed by being called.

In the concrete case, the mother is a foreign national, but she is far from any hesitation that there are no legal conditions that would require prohibiting the departure of a young child who is a Turkish Citizen abroad and therefore the freedom of travel.

b) In the evaluation conducted every weekend in terms of establishing a personal relationship,;

The right to establish a personal relationship is a right that gives the mother/father and the child the right to meet on certain days or hours, to be aware of each other, to be in each other’s lives, to have mutual influence. 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 m.4/1 ). In addition to the satisfaction of the feelings of mother / father in the relationship, the benefit of the child’s physical, intellectual, spiritual, educational, cultural development is also taken into account. If the benefit of the mother /father and the benefit of the child conflict, the advantage of the child is recognized as the superiority (Turkish Civil Code No. 4721 m.182/II, 325 and 324).

As visiting days, days and periods that will not cause difficulties and problems for the parent and child are preferred. These periods are usually weekends and holidays. Spending all weekends with a parent who is not given custody of the child can have inconvenient consequences for both the party with custody and the child. Because, on holidays and weekends, a person feels more comfortable and free psychologically. The fact that the child spends these privileged days only on one side; if he spends troubled days with the one who takes custody, it can lead to him moving away from the one who takes custody, cooling down, connecting to the opposite side.

In such a situation, the one who assumes custody may not be able to devote much time to his child, and it may also become difficult for him to properly perform the task of upbringing with education and upbringing. In addition, in the event of a divorce, the child may have difficulty perceiving that his parents are divorced.

Dec, it is their most natural right that people can be together with their children on weekends and holidays that are more convenient in terms of time and feel more comfortable, and share this beauty and comfort.

On the other hand, the child who stays with the parent who is not in custody every weekend will be unable to plan weekends due to the situation of handing over and taking back the child who is in custody because of the child who is not in custody.

So, it is reasonable and fair that weekends and holidays in a personal relationship are shared by parents, also taking into account the age of the child.

When the concrete event is evaluated in the light of the explanations made above;

M., born on 7.12.2005, whose custody is held by the local court in the defendant-counter-plaintiff mother. saturday Sunday from 09.00 to 18.00 on Sunday, it is not true that it has been decided to establish a personal relationship between the plaintiff and the dec-defendant father every weekend, as this will negatively affect the minor’s age, education, physical and intellectual development.

On the other hand, as mentioned above, banning the removal of the child abroad will create an obstacle for the defendant-counter-plaintiff mother, who is understood to be a foreign national, to perform her custody duty, and it is obvious that it will result in restricting the child’s freedom of travel.

In the face of all these statements, it is necessary to comply with the decision of the local court and the General Assembly of Law to overturn the Special Chamber adopted on the above additional grounds, while resisting the previous decision is contrary to the procedure and law.

Therefore, the decision to resist must be overturned.

result :

30 Of Law No. 6217 on the acceptance of appeals by the defendant-counter-plaintiff ( mother )’s attorney, the additional grounds shown above for the decision to resist, and the reasons shown in the decision to disrupt the Private Apartment for the reasons shown in the decision. article 429 of the Code of Civil Procedure No. 1086, which is applied with the reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100.according to article 440/1 of the same Law, if requested, the advance fee of the appeal will be returned to the depositor. in accordance with the article, a unanimous decision was made on 20.03.2013, within 15 days from the notification of the decision, the way to correct the decision was open.