06 May THE NECESSITY TO APPLY FOR THE OPINIONS OF COMMON CHILDREN WHO ARE AT THE AGE OF UNDERSTANDING REGARDING CUSTODY
T.C THE SUPREME COURT
2. Law Department
Base No:2016/25431
Decision No :2018/11110
Date of Decision : 16.10.2018 SUPREME COURT DECISION
COURT :Family Court
TYPE OF CASE : Divorce
At the end of the Deci-sion of the case between the parties, the above date, which is given by the local court
and the sentence indicated in the number defendant-plaintiff accepted by the man in the woman’s case, the woman
alimony and compensation for poverty, alimony for the benefit of children, and
by appealing against the refusal of the claim for non-pecuniary damages; by hearing the appeal review
if requested to do so; the defendant-plaintiff who appealed on the 16.10.2018 day set for the hearing … and
the deputy didn’t show up. The other party is the plaintiff-defendant … deputy Av. … he’s here. After the incoming conversation is listened to
it was deemed appropriate to leave it until after the hearing for the work to be examined and decided. Today
all the papers in the file have been read and discussed and considered as necessary:
1-166/1-2 of the Turkish Civil Code. in order to be able to make a decision on divorce in accordance with the article, marriage
it is clear that the union has been shaken from its foundation to such an extent that spouses are not expected to lead a common life
you must have.
In a concrete case, the court finds the defendant-plaintiff male, plaintiff-defendant female to be grossly defective compared to
although it was agreed that the marriage union had become unbearable and the parties had decided to divorce,
from the trial and the evidence collected; the hotel record and the file submitted between that date belong Dec
from the photos, the parties Decisively met in a hotel room while the woman’s divorce proceedings are underway
at least that they came, stayed for one night, so that the plaintiff and the defendant woman forgave each other
it is understood that he welcomed it with tolerance. Also based on events that have been forgiven or met with leniency
no fault can be attributed to the parties and no divorce decision can be made. In the face of this situation that occurred,
the pardoned defendant-plaintiff man has become impeccable. In that case, the case of the plaintiff-defendant woman
166/1-2 of the Turkish Civil Code in terms of. the divorce conditions in the article have not been established.
For the reasons described, it is necessary to decide on the refusal of the woman’s divorce case, while her acceptance is correct
although it has not happened, however, the defendant-plaintiff has appealed the divorce provision issued in the man’s divorce case
since the divorce provision has been finalized by excluding the shumul, the woman’s case is uncontested
it is also seen that it has become. In this case, the plaintiff-defendant is about the merits of the woman’s divorce case
a decision will not be made. However, due to the fact that the case remains without a subject, a decision on its merits
in cases where it is not necessary to be given, the judge shall determine the validity status of the parties on the date the case was filed
assesses and assigns the power of attorney fee and trial expenses according to (HMK m. 331/1). Considering this aspect
in order to make a decision, it was necessary to decide on the violation of the provision.
2- From the scope of the entire file; defendant-plaintiff man woman’s divorce case is ongoing while another
according to Article 161 of the Turkish Civil Code, on 12.06.2015 after the incident, the subject of the pardon. otherwise it is 166/1. based on its articles, the unified divorce case is substituted.
From the point of view of the court’s unified case of the man, it is accepted that the woman’s trust-shaking behavior
however, the defendant-plaintiff male was found to be severely defective and decided to accept both cases in terms of
has been given. Above 1. as explained in the paragraph, the plaintiff-defendant woman’s divorce proceedings are ongoing
however, the events that were the subject of this woman’s case were forgiven by the woman. After the incident, the subject of forgiveness
defendant-plaintiff filed a lawsuit based on this case by learning about the existence of confidence-shaking actions of a man and a woman
he proved this claim in the divorce case, as well as in the acceptance of the court. This
in the case, in the events that caused the divorce, it is taken into account that the man’s defective actions are forgiven
the plaintiff-defendant woman has become fully defective when it is received. If so, by the court the defendant-plaintiff
the fact that a man is considered to be rather defective than a plaintiff-defendant woman, and this erroneous defect
depending on the determination of material and moral compensation for the benefit of the plaintiff-defendant woman (TMK m.174/1-2)
according to the poverty alimony (TMK m.175) the judgment of the defendant-plaintiff man is also grossly flawed
i bet it is spiritual (TMK m. 174/2) the decision to reject his request was incorrect and
this is required to be corrected.
3- Court custody of Alperen, born in 20006, Zeynep, born in 2008, and …, born in 2010
it is left to the plaintiff-defendant mother.
In the custody arrangement; in case of conflict between the child and the benefit of the parents, the benefit of the child
recognition of superiority is necessary. The benefit of the child is; the best in terms of the physical, intellectual and moral aspects of the child
in order for it to develop in such a way and for such a development to be realized, it is necessary to provide the child with social, economic and
cultural conditions are provided. In determining the superior benefit of the child in these matters;
if he had become an adult, what decision would he have made in an incident involving him, for his own benefit
if he could, the decision that the person in the decision-making authority for the child should make in the same direction;
that is, the child’s hypothetical thinking will be based on it.
Custody is related to public order and the principle of personal investigation applies. Therefore, during the trial
even the developments that have occurred need to be taken into account.
Article 12 of the United Nations Convention on the Rights of the Child. according to the Article on the Exercise of Children’s Rights
3 and 6 of the relevant European Convention. its articles are considered to have sufficient understanding by domestic law
to provide children with the opportunity to express their opinions in cases involving them, and
it stipulates that the necessary importance should be given to their opinions. It requires the superior benefit of children
otherwise, it is possible to make a decision contrary to their opinion. The issue of custody, which concerns children
it comes at the very beginning of the topics.
The court decided on the issue of custody of common children of the age of understanding due to their age without recourse to their opinions. Therefore, the education of common children in person or by appeal,
by informing about where he wants to live in terms of culture, life opportunities, custody
asking the judge for his preference about him (Supreme Court HGK 16.03.2012 date 2011/2-
884 Basis – Decisions of 2012/197 and decisions of 22.01.2014 dated 2013/2-2085 Basis – Decisions of 2014/30) and
if necessary, re-hire specialists or specialists who are psychologists, pedagogues and social workers (Law No. 4787 m.5) the conditions of housing and living of the common child next to the mother and father are also
evaluates the receipt of a social examination report in the content and evaluates all the evidence together,
it is determined which of the parents will be in the best interest of the child to stay with him, and according to the result
while a decision should be made, it was not found to be correct to make a decision in writing with an incomplete review.
CONCLUSION: The above-mentioned provision of the appeal (1.), (2.) and (3.) for the reasons shown in the paragraphs
PERISH, (3.) according to the reason for the violation in the paragraph, the defendant-plaintiff man is in the best interest of the children
there is no place for the consideration of appeals against the alimony imposed for the time being, the appeal
to return the advance fee to the depositor upon request, within 15 days from the notification of this decision
the decision was made unanimously, with the path to correction being clear.
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