The applicability of joint custody under the Turkish Civil Code

In the Turkish Civil Code (TCC), it is stipulated that custody, which is jointly exercised by both parents during the continuation of the marital union, shall be granted to one of the parents in cases of separation, divorce, or cohabitation outside of marriage. In light of the principle of the best interests of the child—which forms the basis of custody regulations—the joint custody model has been developed as a potential solution that may either eliminate or minimize the adverse effects of parental separation on the child. Within the doctrine, there are differing opinions regarding the permissibility of joint custody under Articles 336(3) and 182(3) of the TCC. Although previous decisions of the Court of Cassation rejected the notion of joint custody on the grounds that it was contrary to public order, this stance has evolved—particularly following the entry into force of Protocol No. 7 of the European Convention on Human Rights and the decision of the 2nd Civil Chamber of the Court of Cassation (Case No. 2016/15771, Decision No. 2017/1737). These developments have paved the way for the recognition of joint custody as a legally viable arrangement under Turkish law. The acknowledgment of the possibility of joint custody has, in turn, raised the question of how such an arrangement should be regulated. It is undoubtedly necessary to establish a positive legal framework in order to achieve consistency and consensus in judicial practice concerning joint custody, especially in view of the provisions of various international conventions to which Turkey is a party, which promote such custody arrangements. In the first chapter of this study, titled The Applicability of Joint Custody Within the Scope of the Turkish Civil Code, which is structured into three main sections, the concept of custody is examined in general terms, including its legal nature, purpose, characteristics, scope, conditions, subject matter, the underlying principles, as well as the modification, termination, and legal consequences of custody. The second chapter addresses the transition from sole custody to joint custody, explores the concept of joint custody itself, discusses the reasons for preferring or opposing joint custody, examines situations in which joint custody should not be granted, and analyzes the resolution of disputes arising after the establishment of joint custody, as well as the conditions under which it may be terminated. Lastly, the third chapter focuses on how joint custody is regulated in international instruments and evaluates the applicability of joint custody in divorce cases under Turkish law, together with the contentious provisions as interpreted in judicial decisions.