In a Divorce, Is Custody Given to the Mother or the Father?

One of the topics that couples in the divorce process wonder about most and worry about most is with whom the child will stay. The question "Does custody stay with the mother, does the father get no chance at all" is the matter that most occupies the minds of parents, especially those with a young child. Yet there is no automatic priority based on sex in the law; the judge evaluates each file within its own concrete circumstances. A large part of our clients face the process in a more anxious frame of mind because of this uncertainty; whereas knowing in advance the factors that shape the decision can greatly reduce this anxiety.

Instead of repeating the general custody criteria, the concrete questions our clients ask most often are brought to the fore: is a young child really given to the mother, in which situations can the father obtain custody, when does the child's own wish come into play, and how does the process work if one of the parents is working or abroad? How the social investigation report works, what the rights of the parent who does not obtain custody are, and which pieces of evidence should be brought to the fore in the file are also addressed in detail. In the headings below, these questions are explained in turn and with concrete examples.

Is Custody Really Given to the Mother?

In practice, especially in infancy and early childhood, the number of files in which custody is given to the mother is high; however, the reason for this is not that the law regards the mother as having priority, but the court's tendency to prefer whoever actually carries out the child's daily care. When making its decision, the judge takes into account that the order the child is accustomed to should not be disrupted, the continuity of care and the time the parent can devote to the child. For this reason, the expression "a young child stays with the mother" is not a rule but a frequently encountered outcome; the circumstances of each file are decisive.

Another source of this perception is social habit: in many families the child's feeding, sleep routine and daily care are in fact carried out by the mother, so this actual situation is also maintained at the case stage. However, if the father has taken on an equal or more active role in the child's care, the court evaluates this actual picture with the same care. In short, what the court looks at is not who is the mother and who is the father, but by whom and at what quality the child's daily life is carried out.

What Is the Effect of Age in Young Children?

Under Turkish law no automatic custody assignment is made according to the age of the child, but the age factor carries significant weight in the judge's evaluation. In infancy it is accepted that the mother's care comes to the fore in terms of physical and emotional needs; as the child grows, factors such as the educational order, the social environment and the stability of school life become more decisive. In children approaching adolescence, the child's own view and habits directly affect the decision.

• Between 0-3 years of age. Since continuity of care and physical-emotional needs come to the fore, the rate of custody being given to the mother is high in practice.
• Between 3-7 years of age. The order the child is accustomed to, the quality of care and the time the parent can devote to the child gain more importance.
• Between 7-12 years of age. Educational stability, the school-friend environment and the child's view begin to be included in the evaluation.
• 12 years of age and over. The child's own preference clearly gains weight, and the judge additionally evaluates this view in the reasoning.

Under What Conditions Can the Father Obtain Custody?

If the father can show that he is in a position to actually take on the child's care and that he offers an environment more suitable for the best interests of the child, he can obtain custody. Situations such as the mother being unable to devote sufficient time to the child, constant disruption occurring in care, the presence of a serious obstacle such as a health problem or addiction, or the child regularly continuing to live with the father come to the fore in this evaluation. The court evaluates the home order, working hours and close-environment support (family elders, nursery, school proximity and the like) of both parties together with the social investigation report.

A custody decision in favour of the father is not an exceptional situation; if it can be established with concrete evidence in the file that the father provides a more stable and secure environment for the child, the judge can decide in this direction. What is decisive here is not the sex of the parent, but the extent to which the care environment offered responds to the needs of the child.

For example, if the mother is planning to relocate to a different city and this will lead to the child being cut off from their current school and circle of friends; when the father can show that he can take on care in the same city while preserving the child's order, the court may bring this stability to the fore. Similarly, in situations where the mother cannot show sufficient attention to the child owing to her health condition, work tempo or personal circumstances, a decision may be made in favour of the father. What is important is not the claims but that concrete and consistent evidence reflected in the file prevails.

From What Age Is the Child's Own Preference Taken Into Account?

In practice, in order to obtain the view of children who are accepted to have the capacity of discernment (the age of discernment), the courts generally hear children aged eight and over in the company of an expert. This hearing is conducted not directly in the courtroom but mostly under the supervision of a pedagogue or psychologist, in an environment where the child can express themselves comfortably. The child's view does not determine the decision on its own, but it is an important factor evaluated together with the other evidence; as the age increases, the weight this view carries in the decision also increases.

During the hearing, the expert also evaluates whether the child's view really reflects their own will or whether it has been shaped under the influence of one of the parents. For this reason, parents directing the child to choose a side is a behaviour that is both ethically objectionable and may be reflected negatively in the file. The preference expressed by the child sincerely and without pressure is clearly evaluated in the reasoning of the decision, especially from the age of twelve; however, the judge is not obliged to accept a preference that they consider contrary to the child's interest.

Does the Custody Situation Change If the Mother or Father Is Working?

A parent being employed does not on its own negatively affect the custody decision; today families in which both parents work are widespread, and the court evaluates this as a normal condition of life. What really matters is whether the working order disrupts the child's care. If factors such as being able to spend sufficient time with the child outside working hours, the existence of family elders or reliable care support, and the child's school and social life continuing in a stable manner can be brought to the fore, the employment situation does not prevent the custody decision.

A frequently encountered misconception is the thought that "the working parent loses custody." Yet the court may also take into account that a parent who has economic independence can offer the child a more stable life. What is decisive is not the length of the working hours, but how well-quality the time remaining outside those hours is spent with the child and whether a gap arises in the child's care. In special situations such as shift work or jobs requiring frequent travel, explaining concretely in the file how the care plan will be maintained gains importance.

How Is Custody Determined If One of the Parents Is Abroad?

One of the parents living abroad does not mean that custody is automatically given to the other parent; however, the judge evaluates the continuity of the child's current living order, school and social environment as an important criterion. Whether the parent abroad can regularly visit the child, how possible establishing personal contact will be in practice, and whether it is necessary for the child to relocate are reflected in the file. In such files, how the personal-contact (visitation) arrangement will be established is also separately planned together with the custody decision.

Should the parent living abroad request custody, the language, education and social-adaptation difficulties that cutting the child off from their current country would bring are also included in the evaluation. Against this, the parent remaining in Turkey maintaining the child's daily life is generally regarded as a less risky option. On the other hand, if the parent abroad can concretely establish that they can offer a far stronger environment economically and socially, the court also discusses this possibility with reasoning; here too the only criterion is the long-term interest of the child.

Is Joint Custody Possible for Young Children?

In uncontested (anlaşmalı) divorces, the parties may reach agreement on joint custody, and the court may accept this request as long as it does not consider it contrary to the child's interest. However, since it is regarded as important that the daily care of young children attains stability around a single order, how the joint custody will be carried out in practice (in which home and in what order the child will live) must be clearly planned. If communication and cooperation between the parties are weak, joint custody for a young child can often become challenging in practice.

Can the Custody Decision Be Changed Later?

The custody decision is not unchangeable even after it becomes final. When an important change affecting the best interests of the child arises (such as the custodial parent disrupting care, a health problem, or the residence being moved to an environment unfavourable to the child), the other parent can file a case to change the custody. In this case too the child's current living order, school and psychological state are examined carefully; a decision to change is made if the conclusion is reached that the change clearly serves the child's interest.

How Is the Social Investigation Report Prepared in Custody?

In cases in which there is a custody dispute, the court generally requests a social investigation report. An expert pedagogue or social worker visits the home of both parents, observes the economic and social conditions on site, and, where necessary, interviews the child and their close environment. The report sets out in detail the physical suitability of the home environment, the time the parent devotes to the child, the child's adaptation in the school and friend environment, and, if any, the factors that pose a risk (such as violence, neglect, a health problem).

Although this report is not binding on the court, it carries great weight in the reasoning of the decision; if the judge is going to depart from the conclusions of the report, they are obliged to explain this with concrete reasons. It is important for the healthy progress of the process that the parents participate in the home visit and interview prepared, calm and in a way that reflects the child's real living conditions while the report is being prepared. Reflecting the real state of daily life rather than presenting an artificially arranged environment helps the expert make a reliable evaluation.

What Happens to the Rights of the Parent Who Does Not Obtain Custody?

The parent who does not obtain custody does not entirely lose their bond with the child. The court determines a regular personal-contact (visitation) programme for the parent to whom it does not grant custody; this programme is planned so as to cover periods such as the weekend, the mid-term break and the summer holiday. In addition, the parent who does not have custody also has the right to obtain information about the child's education, health and general development, and their view may be taken into account in important decisions.

The personal-contact programme not operating regularly, for example the custodial parent constantly obstructing the visits, may both constitute a ground for the reappraisal of custody and give rise to a request that the arrangement be enforced through execution. For this reason, the visitation right not remaining on paper is a matter that must be followed carefully in practice as well.

Which Pieces of Evidence Should Be Brought to the Fore in the Custody Process?

It is important for a parent who wishes to strengthen their custody request to add to the file concrete documents showing who carries out the child's daily care, who follows the school-parent relationship and the quality of the time spent with the child. School correspondence, health follow-up records, records of regular participation in activities, and witness statements carry value at this point. When the social investigation report is being prepared, realistically reflecting the home environment, economic situation and close-environment support also contributes to the decision being made soundly.

• Care-continuity records. School, health and activity documents showing who maintains the child's daily routine.
• Home and environment order. Practical factors such as the safety of the environment in which the child will be sheltered and the presence of a school/nursery nearby.
• Social support network. The existence of family elders or reliable care support.
• Witness and expert views. The social investigation report and, where necessary, the hearing of the child in the company of an expert.

Custody is a sensitive matter evaluated within the concrete circumstances of each file; although general tendencies are guiding, what determines the outcome is how the evidence in your file is presented. As Av. Aydın, at our office in Konak/İzmir we examine your custody file from the outset and plan together which pieces of evidence should be brought to the fore; for your questions you can reach us on the line numbered 0553 595 67 82.