T.C.
SUPREME
2.law office
Mainly No: 2018/1306
Decision No: 2018/4719
Date of Decision: 09.04.2018
REPLACING THE SURNAME OF THE COMMON CHILD WITH THE SURNAME OF THE MOTHER
CLAIM – THE SURNAME OF THE CHILD WITHIN THE SCOPE OF THE RIGHT OF CUSTODY
– AMENDMENT OF THE RIGHT TO DETERMINE THE CHILD’S
IT IS NOT FOUND CONTRARY TO THE BENEFIT OF THE SUPERIOR – AS REQUIRED BY THE ACCEPTANCE OF THE CASE
– VIOLATION OF THE PROVISION
ABSTRACT: The case is aimed exclusively at the replacement of the surname of the common child by the plaintiff mother, who has the right of custody, with her own surname. Your mother’s surname to be deposited for custody of their child’s last name be replaced with that of demand that are within the scope of the authority related to the use of the custody rights, including the right to determine the surname of the child under custody, in the same legal position under the surname of the child custody rights of Man, which recognized the right to determine the woman of progressive, in terms of the use of the right of custody for a different treatment based on gender Clay will te the marriage union is carrying the child born in the family’s last name, with the end of the marriage union to be deposited for custody himself prohibitive to change your mother’s surname own a legal regulation, in the absence of a concrete case the change is not contrary to the benefit of the child in question is superior and there will be a change of personal circumstances considering changing the child’s surname, given by considering the decisions of the Constitutional Court in similar cases regarding the violation, you need to decide upon the adoption of the case.
(2709 P. K. m. 10, 20, 41) (4721 P. K. m. 27, 282, 292, 321, 335, 336) (2525 P. K. m. 4) (6216 p. K. m. 50) (ANY. MAH. 08.12.2011 T. 2010/119 E. 2011/165 K.) (ANY. MAH. 25.06.2015 T. E. 2013/3434) (ANY. MAH. 11.11.2015 T. 2013/9880 E.)
Case: At the end of the trial between the parties, the judgment given by the Legal Department of the Regional Court of Justice, the date and number shown above, was appealed by Dec plaintiff, the documents were read and discussed as necessary and considered:
Verdict: Plaintiff B. In the lawsuit petition dated 12.05.2016, the police station; one of the defendants is Y. She and Incel divorced with a final decision on 27.02.2015, their common child was A. Dated 17.03.2011. E.’s custody was given to him, and that a common child starting school “İncel” of the surname last name before she was married, “Karakol” because of the difference in daily operations of the last names in the problem about the kid through a divorce with her mother in the process he was forced to submit-birth certificate to prove that he, the defendant, his father’s partner that is unrelated to the child with the child it’s been a long time, and that has not been paying child support, the child with the mother the child is disturbed by having different last names, and wanted to carry the same surname with parents by claiming that, he requested that the surname of the common child be changed to “Karakol”, which is the surname of the plaintiff mother, and sued, with the decision of the court of first instance dated 18.07.2017; “TMK No. 4721.No. 321. according to the article, if the parents are married, the child will bear the family name of the family, the father will understand from the phrase “family”, in order to give the child a last name, it will be necessary to look at whether the mother and father were married on the date of birth of that child, the last name was born on 17.03.2011, when it was requested to change the last name A. E. I.as of the date of birth, the child born in a marital union in which his parents are married is TMK.No. 321.according to article 321 of the Turkish Civil Code, where the father takes his surname, after the child’s surname is determined in this way, it is necessary to change his surname on the basis of the right of custody. article 27 of the Turkish Civil Code states that it is not possible to edit the child’s last name only after he becomes an adult. if there are conditions in the article, it can be done by him or by the father’s TMK.june 27th. it is possible if he changes his last name by proving the conditions in the article, unless these two situations occur, the child must bear the father’s last name …”it was decided to dismiss the case on the grounds that the decision was appealed by the mother Izmir District Court of Justice 2. According to the decision of the Legal Department dated 14.11.2017 “… the child born in a marital union is subject to Article 321 of the Turkish Civil Code. in accordance with the article ”The father has taken his surname …”, he fundamentally rejected the plaintiff’s request for an appeal, and the verdict was appealed by the plaintiff’s mother.
The case is aimed exclusively at the replacement of the surname of the common child of the plaintiff mother, who has the right of custody, with her own surname.
From the trial and the evidence collected; common child A. E.the parties were born on 17.03.2011 before the date of marriage, on 18.03.2011 the defendant was recognized by the father and the paternal bond was established, the parties were married on 22.08.2011 and divorced with a final decision on 27.02.2015, the common child A. With a divorce decision E.it is understood that the custody of the is left to the plaintiff mother, while the plaintiff mother still has the rights and responsibility for custody.
The Decency between the child and the mother is established by birth. The kinship between the child and the father is established by marriage with the mother, recognition or judge’s Decisionship. The lineage is also established through adoption (TMK m. 282). A child born outside of marriage is subject to the provisions related to children born spontaneously in marriage if his parents marry each other (TMK m. 292). If the child, parents are married, the family name is ta ir. However, if the mother has a double surname due to her previous marriage, the child can use her single surname ta ir (TMK m. 321).
The change of name can only be requested from the judge on the basis of justifiable reasons. Registration and announcement are made in the population register where the name has been changed. Changing the name does not change the personal situation. A person who has been harmed by the change of name can sue for the abolition of the decision to change it within a year, starting from the day he finds out about it (TMK m.27). The surname is one of the most important elements in determining identity as an individual and an indispensable, inalienable, which uti is a tightly bound right of the person, which has become an integral element of the identity and ki marrow of the individual.
Custody is called the totality of the rights and obligations that parents, non-adult children or restricted adult children have in relation to their existence, assets and representation of them on these two issues (AKINTÜRK, Turgut: Turkish Civil Code C.2, Family Law, Istanbul 2002, p. 400). Custody imposes responsibility on the parents and authorizes them to make the decisions that must be taken about the child until he becomes an adult. In this regard, in modern law, custody is considered to be the sum of rights and obligations, since it includes authority and responsibility for ensuring the superior benefit of the child, as well as a right. The ultimate goal of custody is to ensure that a minor who has not yet reached adulthood is prepared for future life as an adult in the future (AKYÜZ, Emine Child Law Protection of Children’s Rights, 2012 p.220). article 335 of the Law No. 4721 on the right to custody. in the article, it is pointed out that the child who is not an adult is under the custody of his parents, and custody cannot be taken from the parents unless there is a legal reason, indicating the joint use of the right of custody and the powers within this scope during the marriage relationship; 336. in the article, it is stipulated that the parents will use custody together as long as the marriage continues, that the judge may grant custody to one of the spouses in case of termination of joint life or separation, that custody belongs to the survivor in case of death of one of the parents, and in case of divorce, the child belongs to the party left to him, and the principle of equality of the spouses has been tried to be reflected in terms of the right of custody and the use of the powers it contains.
4 of the Surname Law No. 2525 of 21.6.1934, in which the issue of determining the surname of the child who is within the powers within the scope of the right of custody is regulated in cases of dissolution of marriage or divorce. in the second paragraph of the article “In cases of dissolution of marriage or divorce, the child receives the name that his father has chosen or will choose, even if it has been transferred to his mother.” the attached regulation is dated 8.12.2011 of the Constitutional Court and E.2010/119, K.in accordance with the decision No. 2011/165, which was canceled and on the grounds of the decision to cancel, the provisions of the international covenant on the need for men and women to have ethical rights and responsibilities during marriage and at the end of the marriage should also be referred to, and the spouses, the rights and obligations during marriage and divorce that are in the same legal position in terms of only the man who recognized under the surname of the child custody rights of women to choose the right progressive, the use of the right of custody that would lead to discrimination by gender in terms of indicating the subject of the appeal by Rule 10 of the Constitution. and 41. it was stated that the cancellation was decided due to the fact that it was considered contrary to the articles.
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