TC
YÜCE
LAW FIRM
2016/15771 E. 2017/1737 K. 20.2.2017 T
CASE: The plaintiff’s father appealed the decision rendered by the local court in the dispute between the parties, dated and numbered as above. The document was read, discussed, and deemed necessary:
DECISION: The parties are British citizens. The plaintiff father is the co-parent of Chelsea Lynsey B., born on 10/24/2003 out of wedlock. He requested that joint custody arrangements be made, with the mother and father being dismissed.
In summary, the Court decided to dismiss the case on the grounds that, even if joint custody arrangements were possible for children born out of wedlock under the parties’ national laws, joint custody arrangements were contrary to Turkish public policy.
Theft provisions are governed by the law regulating theft. However, if there is a common national law between the mother, father, and child, this law applies to theft provisions; if there is no common law, customary law applies (MÖHUK m. 17/1).
If the provision of the competent foreign law applicable to a specific case is clearly contrary to Turkish public policy, this provision shall not be applied; if necessary, Turkish law shall be applied. (MÖHUK m.5/1)
The dispute to be resolved in a specific case aims to determine whether the “joint custody” arrangement is clearly contrary to Turkish public policy.
In this context, it is necessary to first examine the legal regulations in our domestic law. The legal regulations in our domestic law relevant to our subject are as follows:
When issuing a divorce or separation decision, the court shall, after hearing the parents as much as possible and, if the child is under guardianship, obtaining the opinion of the guardian and the guardianship authority, regulate the rights of the parents and their personal relations with the child.
The use of custody in regulating the spouse’s personal relationship with the child is based on the principle that the interests of the child, particularly in terms of health, education, and morality, are paramount in cases where custody is not granted to the spouse. This spouse is obliged to contribute to the child’s care and education expenses to the extent of their ability (TMK m. 182/1-2).
A minor child is under the custody of his/her parents. Custody cannot be taken away from the parents without a legal reason.
Adult children subject to restrictions also remain under the custody of their parents unless the judge deems it necessary to appoint a guardian (TMK m. 335).
As long as the marriage continues, the mother and father exercise joint custody.
In the event of the end of cohabitation or separation, the judge may grant custody to one of the spouses.
In the event of the death of one of the parents, custody belongs to the surviving spouse, and in the event of divorce, the child belongs to the party who inherits from the deceased parent (TMK Art. 336).
If the mother and father are not married, custody belongs to the mother.
If the mother is a minor, incapacitated, deceased, or has had custody removed, the judge appoints a guardian or grants custody to the father, taking into account the best interests of the child (TMK m.337).
Protocol No. 11 and Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, dated March 14, 1985, were signed on behalf of the Republic of Turkey, published in the Official Gazette dated March 25, 2016, and entered into force. and ratified by Law No. 6684 dated October 5, 2016, becoming part of our domestic law. According to Article 5 of Protocol No. 7, “spouses shall be equal in their relations with each other and in their rights and responsibilities of a private legal nature in respect of their children during marriage, during the duration of the marriage, and upon its dissolution. This article does not prevent states from taking necessary measures in the interests of children.”
International agreements that have entered into force in accordance with the proper procedure are in accordance with the law. They cannot be challenged before the Constitutional Court on the grounds of unconstitutionality. In disputes arising from differences between international agreements on fundamental rights and freedoms that have entered into force in accordance with the procedure and laws on the same subject, the provisions of the international agreement shall prevail. (Constitution of the Republic of Turkey, Art. 90/last).
After examining the legal regulations related to domestic law, it would be useful to focus on the concept of “public order” (ordre public) in dispute resolution.
It is not easy to provide a comprehensive definition that encompasses all the characteristics of public order. According to Dekjul-de-Sacre, “public order rules are all the institutions and foundations that ensure the proper functioning of public services in a country, the security and public order of the state, and compliance with the principles of peace and morality in relations between individuals.” Within this general framework, public order rules can be explained as rules that protect the fundamental structure and fundamental interests of a society. (Prof. Dr. Aysel Çelikel-Prof. Dr. B. Bahadır Erdem, International Private Law, 11th edition-page:149).
In general, the application of foreign legal provisions that are incompatible with the fundamental principles of the Constitution and the fundamental principles and values of today’s society, that are clearly inconsistent with traditional legal rules, and that violate public order is prohibited, as it aims to protect personal rights and freedoms and promote the social development of the legal system. If the outcome of applying foreign legal provisions or rules in a specific case would create a situation that is intolerable in light of the fundamental principles and values mentioned above, the foreign law will not be applied because it clearly violates public order. Here, we are referring to the “beneficial effect” of public order that prevents the application of foreign law. The concept of public order is broad, vague, arbitrary, and variable (Prof. Dr. Cemal Şanlı-Assoc. Prof. Dr. Emre Esen – Assistant Prof. İnci Ataman-fIganmeshe, International Private Law-4th Edition-pages: 72-73-78).
In Turkish law, public policy has an exceptional function of preventing the application of foreign law. Foreign law authorized by our state law is applicable as long as it is not “clearly” contrary to the public policy of the country (MÖHUK Art. 5). Currently, public policy is not a unilateral “binding basis” for us and does not belong to conflict of laws. On the contrary, conflict of laws is an exception to the principle of applying the foreign legal system indicated by our state law (Prof. Dr. Ergin Nomer-Prof. Cemal Şanlı, State Law, 18th edition, p. 159).
“…The enforcement of a foreign decision cannot be refused on the grounds that the law applied is different from Turkish law or that it is contrary to the mandatory rules of Turkish law. The criterion to be considered here is whether the provisions of a foreign decision under Turkish law are contrary to the fundamental values of Turkish law, Turkish general morality and civil rules, fundamental justice and legal policy, the fundamental rights and freedoms enshrined in the Constitution, internationally accepted common legal principles, bilateral agreements accepted in developed societies, common morality and understanding of justice, the political and economic regime, and the level of civilization.”
(Supreme Court Decision dated 10.02.2012 and numbered 2010/1 E, 2012/1 K, on the Consolidation of Precedents).
In light of the above explanations regarding our domestic law and the concept of public order, when considering a specific case, it is not possible to say that the “joint custody” arrangement is “clearly” contrary to Turkish public order or violates the fundamental structure and fundamental interests of Turkish society.
In this case, within the scope of the joint custody arrangements for British citizens in the national law of the parties, after evaluating all the evidence presented regarding “joint custody” under Article 17/1 of the MÖHUK, the court must render a decision on the case when a written warning stating that the decision is contrary to Turkish public policy is requested, taking into account the merits.
CONCLUSION:
Based on the reasons explained above, the objections regarding corruption and damage, and the examination of other reasons for the appeal, regardless of whether a request for prior return was made, an application will be filed within 15 days of the unanimous decision taken on February 20, 2017, to open the way for the decision to be corrected.