TURKISH COURT OF CASSATION 2nd CIVIL CHAMBER E. 2015/7575, K. 2015/23897, T. 14.12.2015
The child, whose custody was granted to the mother, states that he/she does not want to see his/her father (Considering the child’s mental and moral development and physical health, the court has reached the conclusion that a personal relationship should be established with the child. According to the expert report on the health conditions of the parties, a personal relationship should not be established with the child at this stage, as he/she has not yet reached the age of understanding).
THE CHILD’S OPINION ON CUSTODY (Expert Report on the Deficiencies of the Parties in the Hearing and Court; According to the Opinions of the Experts Appointed by the Court, the Court States that the Child Does Not Want to See His Father and that, Taking into Account the Best Interests of the Child, a Personal Relationship with the Plaintiff Father Should Not Be Established at This Stage)
ESTABLISHING A PERSONAL RELATIONSHIP WITH THE CHILD (The child heard by the experts appointed by the court during the hearing is of an age to understand and does not wish to see his father / Expert Report on the Parties’ Deficiencies by the Court, is the opinion of the child of joint custody who is of an age to understand, and considering the best interests of the child, it is necessary not to establish a personal relationship with the plaintiff father at this stage)
Alimony amount (Divorce/Separation – Especially in the lawsuit process where temporary measures must be taken to ensure the care of spouses and children and to protect the parties to the lawsuit, alimony will be awarded in an appropriate amount in favor of the defendant, taking into account the economic and social circumstances of the woman.)
ABSTRACT:
1-When establishing a personal relationship with children, it is necessary to observe the high benefit of the child’s physical, intellectual, and moral development, as well as the satisfaction of maternal and paternal feelings, when establishing a personal relationship with children. It is always desirable in changing years. The court should not establish a personal relationship with the plaintiff father at this stage, taking into account the defect situations of the parties, the expert report, the opinion expressed by the common child of the age of understanding, and the best interests of the child.
2-When a divorce or separation case is filed, the judge must take the necessary, especially temporary measures related to the housing of the spouses, livelihood, property management (and the care and protection of children) on his own (if necessary) during the continuation of the case. Taking into account the economic and social situation of the parties, it is necessary to decide on the appropriate amount of alimony for the benefit of the defendant woman, effective from the date of the case.
CASE:
At the conclusion of the trial between the parties, the judgment rendered by the local court, the date and number of which are indicated above, was appealed by the defendant woman in terms of personal relations, child support, and compensation for determining a defect; a request was made for the appeal review to be held decisively; the defendant and the opposing plaintiff’s attorney, who appealed on the 14.12.2015 date set for the hearing, arrived. After hearing the statements of those present, it was deemed appropriate to postpone the case until after the hearing for the matter to be examined and decided. Today, all the documents in the file have been read, discussed, and considered as necessary:
Decision:
1- The decision is based on the evidence in the file and, in particular, on the woman’s complaint against the defendant. The plaintiff is not considered at fault in the incident where the defendant exercised his constitutional rights against her. T he woman’s disturbing behavior in the events leading to the divorce is, in the defendant’s opinion, entirely at fault. The defendant’s objections fall outside the scope of the following article, and the woman’s objections are unjustified.
2- The child, born in 2004, is of middle age and custody has been granted to the mother. During the hearing, the statements of the experts appointed by the court were heard, and the child stated that he/she did not want to see his/her father. When establishing personal relations with children, the high benefit to the child’s physical, mental, and moral development, as well as the satisfaction of the mother’s and father’s feelings, should be taken into account.
This is always desirable at different ages. The court stated that the parties’ fault, the expert report, the opinion expressed by the child of joint custody who has reached the age of understanding, and the child’s best interests indicate that the plaintiff should not establish a personal relationship with the father at this stage (TMK.md.324) and that this ruling should not be overturned in writing.
3-
When divorce or separation proceedings are initiated, the judge shall, during the proceedings, particularly consider the spouses’ housing (Turkish Civil Code, Article 186/1), maintenance (Turkish Civil Code, Article 185/3), property management (TMK Articles 223, 242, 244, 262, 263, 264, 267, 215), and the care and protection of children (TMK Article 185/2).
If the judge deems it necessary, he/she may take temporary measures on his/her own initiative (TMK Article 169). In this case, in accordance with Articles 185/3 and 186/3 of the Turkish Civil Code, taking into account the economic and social circumstances of the parties, it is necessary to determine appropriate child support in favor of the defendant woman, effective from the date of the lawsuit. However, if the written decision is found to be contrary to procedure and law;
CONCLUSION:
Regarding the invalidation of the other parts of the appeal mentioned in Article 1, which are not covered by the scope of the violation, based on the reasons stated in the paragraphs, in relation to the above-mentioned 2nd and 3rd appeal provisions, On 14.12.2015, it was unanimously decided to APPROVE for the reasons stated in the paragraph, to refund the advance fee paid for the appeal upon request, and to open the way for the correction of the decision within 15 days from the notification of this decision.