T.C.

SUPREME

GENERAL ASSEMBLY OF LAW

E. 2012/2-799

K.2013/389

T. 20.3.2013

CASE :

At the end of the trial due to the “custody and associate alimony” case between the parties; Ankara 5. The date of 27.04.2010 and 2009/427 given by the Family Court regarding the rejection of the original case for custody and the acceptance of the counter-case for the alimony of participation E., 2010/574 K. the Court of Cassation 2. Day of law office 05.07.2011 and 2010/16826 E., 2011/11499 K. with Ref No.;

(…1-the appellate objections of the plaintiff-defendant father are unwarranted according to the evidences on which the decision is based and the reasons in accordance with the law, and in particular, there is no mistrust in the discretion of the evidence.

2-when it comes to the investigation of the defendant-plaintiff woman’s appeal request;

Custody of the defendant-the mother of the plaintiff, born 7.12.2005 M. Saturday Sunday from 09.00 am to 18.00 am on every weekend between the plaintiff and the defendant father will negatively affect the education, physical and intellectual development of the minor as of his age, as well as the Prohibition of the removal of the child to abroad will prevent the defendant-plaintiff mother from carrying out the duty of custody of the child.*********** -*** -*********** -*********** – * * * * * * * * * * * It has not been right to establish a written provision without taking into account the directions described.… ),

At the end of the re-trial, the court resisted the previous decision in terms of custody.

The law was examined by the General Assembly after it was understood that the decision to resist had been appealed during its time and the papers in the file were read.:

DECISION :

The original case is related to custody and the counter case is related to the request for alimony.

The attorney of the plaintiff-Counter-Defendant ( father), born from the extramarital affairs of the defendant with his client M.’i, by recognizing the plaintiff’s father, that he gave his own last name, M.he said his client’s living conditions were very good.he has demanded and sued that custody of his client be granted.

The attorney of the defendant-counter-claimant ( mother), stating that the plaintiff’s claims do not reflect the truth, has requested against the rejection of the original case and the provision of the Joint child support of TL 500.00.

From the scope of the file; the parties ‘ extramarital relations born 07.12.2005 M. it is understood that the claimant father recognized the child on 09.06.2006 and registered it to his population, the claimant father later married another woman in 2007 and had no children from this marriage, and the defendant mother was a foreign citizen.

In addition, during the trial period, the court decisively decided that the young child, M. it was decided to establish a personal relationship between the father and the plaintiff and to prohibit the young child from going abroad.

Taking into account the court’s expert report that it is in the best interest of the child to be with the mother, in the original case, the rejection of the request for joint custody of the child to be granted to the plaintiff father, with the acceptance of the request regarding the personal relationship; the Joint child was born 07.12.2005. T. Sunday Saturday morning at 18:00, the second day of religious holidays at 09:00, and the third day at 18:00, little M., every week between the father and the plaintiff, the Saturday morning at 09:00, The Sunday evening at 18: 00, The Sunday evening at 09: 00, the third day at 18: 00, 6 July July July July 1 morning until the age of 09:00, 20 July evening 18:00, 6 after the age of 1 July morning 09:00 – 31 July evening 18:00, public holidays noon 12:00 evening 18: 00 hours to establish a personal relationship; defendant-counter-claimant (mother ) claims for the young child, determined by the same amount from the father of the claimant, after the decision is finalised, the defendant – counter-claimant mother T.upon the appeals of the representatives of the parties, the part of the special Office regarding the maintenance of the participation was upheld; however, the provision was overturned due to the reasons mentioned above in terms of the personal relationship.

The court,” each week the child’s personal relationship with the child can not be said to negatively affect the development of the child, experts are not regulated in Turkish law ‘co-custody is a supporter, frequent relationship will serve it, the mother is foreign and the child can not bring abroad again in terms of the reasons of the previous decision was resisted.”

The provision for the benefit of participation in the counterclaims between the parties has been finalized and is non-dispute.

Dispute before the General Assembly of law through resistance;

1-7.12.2005 born M. who has custody of the mother Saturday Sunday from 09.00 am to 18.00 am on every weekend between his father and his education, body and intellectual development as a young person’s age will affect the establishment of a personal relationship will adversely affect whether or not.;

2-whether the decision to ban the child’s removal abroad will prevent the mother from carrying out her custody duties;

According to the conclusion reached here, the local court, whether the provision regarding the arrangement of the personal relationship is in place or not, is gathered at its points.

At this point, it is useful to evaluate the Local Court’s reasons for resisting separately.

a) in the evaluation of the ban on travel abroad;

The Prohibition of the entry of a minor abroad because of the concern that the common child may be taken abroad by the mother is contrary to the freedom of travel, which is the fundamental right of the constitution of 1982, as well as its continuity, in addition to disrupting the custody duty of the mother ( m.23 ).

Fundamental rights and freedoms may only be limited by law for a certain period of time, subject only to the reasons set forth in the relevant articles of the Constitution, without their essence being touched ( m.13 ).

23 of the Constitution. according to the article, it is not possible in principle to permanently limit the freedom of travel. This freedom can only be limited temporarily for the purpose of protecting the child.

Furthermore, Protocol No. 4 ( 1968 ) of Annex to the European Convention on Human Rights ( Convention on the protection of Human Rights and fundamental freedoms) entitled “Freedom of travel within the country of a state and freedom to leave its country” 2. in the second paragraph of the article, ” Everyone is free to leave any country, including his own country.>

In the third paragraph of the same article,; “The exercise of these rights shall not be restricted in the interest of national security or public security, for the protection of public order, for the Prevention of crime, for the protection of health or morality, or for the protection of the rights and freedoms of others, other than the necessary and lawful restrictions in a democratic society.”(Harris / O’boyle/Warbrick: European Convention On Human Rights Law, Translators: Mehveş Bingöllü Kılıçı-Ulaş Karan, Joint Project On Strengthening The Roles Of High Judicial Institutions In Terms Of European Standards, Council Of Europe-Ankara 2013, Sahife: 762), the freedom of travel is guaranteed.

In the concrete case, the young child, whose mother is a foreign national but who is a Turkish citizen, is free from any hesitation where there are no legal conditions to prohibit the entry abroad and therefore the freedom of travel.

b) the evaluation made every weekend in terms of establishing a personal relationship is;

The right to have a personal relationship is a right that gives the mother/father and child the power to meet on certain days or hours, to be aware of each other, to be in each other’s lives and to be mutually affected. This right is as much a right for the child as it is for the mother/father ( European Convention on personal relations with children 2003 m.4/1 ). Besides the satisfaction of the feelings of parenthood in the relationship, the benefit of the child towards physical, intellectual, spiritual, educational and cultural development is also taken into consideration. If the benefit of the mother/father and the benefit of the child are in conflict, the advantage of the child is recognized (Turkish Civil Code No. 4721 m.182 / II, 325 and 324 ).

As visiting days, days and periods that will not cause trouble and trouble for parents and children are preferred. These periods are usually weekends and holidays. If the child spends all weekends with the parent who is not granted custody, there may be inconvenient consequences for both the custody party and the child. Because, on holidays and weekends, the person feels more comfortable and free from psychological care. The child has to spend these privileged days on one side.; if the troubled days are spent with the custodian, it can lead to him getting away from the custodian, cooling off and being attached to the other side.

In such a case, the person who assumes custody may not have much time for his or her child, and it may be difficult for him or her to properly carry out the duty of education and training and raising. In addition, in the case of divorce, the child may have difficulty perceiving that his or her parents are divorced.

Therefore, it is the natural right of people to be together with their children on weekends and holidays, where they feel more comfortable and more comfortable in terms of time, and to share this beauty and comfort.

On the other hand, due to the child remaining with the parent who is not in custody each weekend, the child who is in custody will be unable to plan weekends because of the delivery and retrieval situation.

Therefore, it is reasonable and fair that weekends and holidays in a personal relationship are shared by parents, regardless of the child’s age.

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

Local court, custody of the defendant – counter-claimant mother, born 7.12.2005 M. the plaintiff-father every weekend from 09.00 am on Saturday and Sunday against the defendant between 18.00 hours on the day once they have been decided to establish a personal relationship until the minor’s age, education, body, and have a negative impact on the intellectual development, because it is not true.

On the other hand, as mentioned above, the Prohibition of the removal of the child abroad will prevent the defendant-counter-claimant mother, who is understood to be a foreign national, from carrying out the duty of custody, and it is obvious that it will result in the restriction of the child’s freedom of travel.

In the face of all these explanations, it is against the procedure and the law to resist the previous decision while the decision to break the special circle adopted by the Local Court and the General Assembly of law on the additional grounds above should be obeyed.

Therefore, the decision to resist must be broken.

RESULT :

With the acceptance of the appeal appeals of the defendant-counter-claimant ( mother ) attorney, the decision to resist is based on the additional justification shown above and the reasons shown in the decision to break the special circle 30 of the law No. 6217. article 429 of the Code of Civil Procedure No. 1086 which is being applied with the attribution of “provisional Article 3” added to the law of Civil Procedure No. 6100.in accordance with article 440/1 of the same law. in accordance with the article, a unanimous decision was made on 20.03.2013, with a clear path to correction within 15 days of the notification of the decision.