Grounds for termination arising from the law;
a) If the child has reached the age of eighteen or has married of their own free will, with parental consent, by court order, or has reached the age of fifteen, custody ends. However, if the adult is legally restricted and there is no need to appoint a guardian, custody continues until the restriction is lifted. Guardianship also ends when the incapacity ceases.
b) If the child is adopted by a third party, the rights and obligations arising from guardianship pass to the adoptive parent.
c) Custody ends upon the death or incapacity of the parents or the child. However, if only one parent dies, custody passes to the surviving spouse. If both parents die, a guardian is appointed for the child.
Termination of custody by court order;
The judge removes custody, either on his own initiative or upon request, if necessary. The prerequisite for the judge’s decision to remove custody is that other measures to protect the child will not be effective or are insufficient. If the child needs to be protected by other measures, custody should not be removed.
1-Failure to perform parental duties as required; this refers to the parents’ inability to perform their parental duties as required due to inexperience, illness, being in another location, or similar reasons. The parents’ poverty does not require the removal of custody, but laziness may justifiably cause them to develop bad habits. The listed reasons are reasons that continue for a certain period and prevent the duty from being performed as required.
Before custody is removed due to the parents’ inexperience, other measures are also taken to eliminate this inexperience. In its decision dated September 7, 1999, numbered 7102-8157, the 2nd Chamber of the Court of Appeals stated: “Custody rights cannot be removed unless it is proven that the mother who has been granted custody rights is inadequate and unable to fulfill her duties.” The illness of the parents may not be based on their fault. This illness must be serious enough to prevent them from fulfilling their custody duties. The emergence of conditions such as mental illness is the best example of this. In addition, there are a limited number of reasons not specified in the law, and what these reasons are is assessed by the judge. If the parents are restricted, the right of custody may also be removed.
b)
If parents do not show sufficient interest in the child, and if they have no valid excuse for this neglect and the situation is permanent, custody rights may be revoked. Here, the parents must be at fault and the child must suffer harm from this situation. In its Decision No. 4405-4618 dated March 21, 1994, the High Court of Appeals stated that it was necessary to determine that the children left with their father were actually left with their grandmother and to decide to change custody.
c) In cases of serious violation of the parents’ obligations towards the child, custody may be revoked only if the custody rights have been seriously violated and gross negligence has been demonstrated.
d) If the parent with custody rights or the father remarries, custody may be granted to the remarried parent, taking into account the interests of the child. If the parent fails to fulfill their custody obligations after marriage, or if the child’s interests require legal action, the Family Court judge may change the custody rights based on the circumstances and conditions of the case.
e) If the parents are sentenced to imprisonment, they cannot exercise their custody rights.
Custody Modification Case
Court decisions regarding custody are not final. Custody may be modified according to changing circumstances. This modification can only be made by a judge’s decision.
According to the Supreme Court General Assembly decision dated 15.04.1992 and numbered 1992/2-140 E; in order for custody to be changed through divorce, there must be fundamental changes in the situation of the party to whom custody has been granted or the child, and these changes must be permanent, not temporary. In accordance with Article 12 of the United Nations Convention on the Rights of the Child and Articles 3 and 6 of the European Convention on the Rights of the Child, if the child is capable of understanding the meaning and significance of the situation, the child’s opinion must also be taken into account.
Furthermore, if one of the reasons for removing custody mentioned above occurs in the spouse who has been granted custody, a decision must be made to change custody in the best interests of the child. For example, if the party who has been granted custody has a persistent and serious illness, it is possible to change custody.
As stated in the Supreme Court’s 2nd Civil Chamber Decision No. 2013/4764 K:2013/25031 and its precedent dated November 4, 2013, the remarriage of the mother or father who has custody is not considered sufficient grounds for changing custody alone. Custody may be changed if it is in the best interests of the child. For this, the person filing the custody change lawsuit must provide evidence that it is in the best interests of the child.
On the other hand, there is no set time limit for filing a custody modification case. The child’s best interests may be raised as soon as a situation arises that warrants filing such a case. This case may be filed not only by the person who does not have custody, but also by the person who has custody of the child.