Custody in Family Law and custody cases in practice

In the second article of the 1982 Constitution, being a social state is counted among the qualifications of the Republic of Turkey. One of the requirements of the social state principle is that the state looks after the personal and economic interests of its weak and defenseless citizens. Children are in the first place among those in need of protection. As a rule, children are in the custody of their parents. While the law assumes that the parent is the person who will best protect the child's interests, however, in some cases the child may be outside the custody of the parents. In this case, our law, which wants to protect the interests of the child, has regulated the institution of guardianship. Guardianship and guardianship are institutions that replace each other. Guardianship is a guarantee not only for children, but also for adults who are unable to protect their personal and economic rights and interests. In the presence of one or more of the conditions listed as limited in the law, there may be compulsory protection by the public, and it is also possible for the adult person to request the protection of his personal and economic interests by the public, in case of certain conditions listed in the law. In such cases, the guardianship institution comes into play. The guardian is the person who is obliged to carry out all kinds of transactions on behalf of the person in need of protection due to his/her small size and limitation, and to take care and protect his/her personality and property. The guardian is appointed by the guardianship authority for a certain period of time among persons who have the qualifications specified in the law and who have the positive and negative conditions of guardianship. While the guardian has the rights and obligations specified in the law during his/her duty, he/she has to protect all kinds of personal and economic interests of the minor and the disabled and periodically give an account to the guardianship authority. He is obliged to deliver the assets of the person under guardianship in full. Otherwise, the guardian may be liable for compensation. The protection of the people that the institution wants to protect, their adaptation to social life, the fulfillment of certain economic and personal rights and obligations depend on the healthy functioning and development of this institution in every aspect. Therefore, the existence of guardianship, guardianship authority and supervisory authority, which are the guardianship organs, alone is not sufficient to ensure the protection of the person under guardianship. If they do not fulfill the stated objectives, these bodies turn into dysfunctional institutions over time. For this reason, this situation necessitates the support and development of these organs in every aspect. The Turkish legislator adopted the new Turkish Civil Code No. 4721 and put it into effect on January 1, 2002. The law also made some reforms in the field of guardianship. These reforms contributed to the functioning of the institution and filled the gaps in the old legal period. When these regulations are taken into account, it is seen that the person under guardianship and the guardianship organs are almost integrated. The guardianship bodies complement the weaknesses of the person under guardianship, protect his personality, and take economic and legal transactions on his behalf. While doing this, he has to look after his interests. In short, the preparation of the minors for social life and the regulation of the disabled to live without losing their rights depends on the success of the guardianship institutions.