TC
Supreme
2.law office
Mainly No: 2018/1306
Decision No: 2018/4719
Decision Date: 09.04.2018
CHANGING THE COMMON CHILD’S SURNAME TO THE MOTHER’S SURNAME
REQUEST – SURNAME OF THE CHILD COVERED BY THE RIGHT OF CUSTODY
– CHANGE ABOUT DETERMINING THE CUSTODY OF THE CHILD
IT HAS NOT BEEN FOUND CONTRARY TO THE BENEFIT OF THE SUPERIOR AS REQUIRED BY THE ACCEPTANCE OF THE CASE
VIOLATION OF THE PROVISION
SUMMARY:
The case relates to the request of the plaintiff mother, who has the right to custody, to change the surname of the joint child with her own surname. Replacing the surname of the child to be taken into custody with the requested surname that is within the scope of the authority to exercise the right of custody, including the right to determine the surname of the child under custody, a man who has the right of custody of the child in the same legal position, a progressive woman who also has a different treatment based on gender in terms of using the right of custody,
when the marriage union ends, the child is born in a family bearing her own surname, the child to be taken into custody is prohibited from changing her own surname, in the absence of a concrete case, it should be decided that the change is superior to the benefit of the child in question and that changing the child’s surname, taking into account the change of personal circumstances, should be accepted by taking into account the violation decisions of the Constitutional Court in similar cases.
(2709 PK m. 10, 20, 41) (4721 PK 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. 2013/3434 ON 25.06.2015) (ANY. MAH. 11.11.2015 T. 2013/9880 E.)
Case: At the end of the hearing of the case between the parties, the decision dated and numbered above, issued by the Dec. of the Supreme Court of the District Court of Justice, was appealed by the plaintiff, the documents were read and the necessary exchange of views were exchanged;
Verdict: Plaintiff B. The Police Department has opened the case dated 12.05.2016 and one of the defendants is Y.’is. He and Incel divorced with a final decision on 27.02.2015, their common child is A. Date 17.03.2011. E.that he was given custody of his partner’s child,
that their joint child started elementary school in a “very civilized” way, that his last name was “Police Station” before marriage, that he had to submit a birth certificate due to the problem he had with his mother during the divorce process due to the difference in surnames in daily functioning in relation to the child, that the defendant had been with a child for a long time who was the father of the child’s wife and had no kinship with the child, and that he did not pay child support,
that the child was uncomfortable with having different surnames with his mother, claiming that he wanted to carry the same surname as his parents, he requested that the surname of the common child be changed to “Karakol”, the surname of the plaintiff’s mother, and filed a lawsuit with the decision of the court of first instance dated 18.07.2017; “321 of the TMK numbered 4721.
according to the article, if the mother and father are married, the child will bear the family surname, as the father will understand from the expression “family”, in order to give the child a surname, check whether the parents are married on the date of birth of this child, the surname was born on 17.03.2011, when asked to change the date of birth, the surname of the child born in a marital union in which the parents are married is TMK.nun 321.
according to the article, if the father takes his own surname, the surname of the child must be changed on the basis of the right of custody after the surname of the child is determined in this way. 27 Of the Turkish Civil Code. in the article, it is stated that it is not possible to edit the child’s surname only after he becomes an adult. In the event of the existence of the conditions contained in the article, the custody of himself or his father is TMK.June 27th.
it is possible if he changes his surname by proving the conditions contained in the article, if these two situations do not occur, the child must bear his father’s surname …”it was decided to dismiss the case due to the appeal of the decision by the mother. Izmir Regional Court of Justice 2. According to the decision of the Legal Department dated 14.11.2017, “… a child born in a marital union is 321 of the Turkish Civil Code. subject to the article. According to the article ”Father, he has taken his surname …”, the plaintiff’s appeal request was rejected and the verdict was appealed by the plaintiff’s mother.
The case relates only to the replacement of the surname of the joint child of the plaintiff mother, who has the right of custody, with her own surname.
From the trial conducted and evidence collected, it is understood that the parties’ joint child AE was born on 17.03.2011 before the date of marriage, the defendant was recognized by the father on 18.03.2011 and paternity bond was established, the parties got married on 22.08.2011 and divorced with a finalized decision on 27.02.2015, joint child A was left to the plaintiff mother by the divorce decision, the plaintiff mother still has custody rights and responsibilities.
The bond of honor Decoupled between the child and the mother is established by birth. kinship between the child and the father is established by marriage with the mother, recognition or a judge’s Decrees. The generation is also established through adoption (TMK m. 282). A child born outside of marriage shall be subject to the provisions relating to children born spontaneously within the marriage if the parents marry each other (TMK m. 292). If the child’s parents are married, his surname will be ta ir. However, if the mother has a double surname due to her previous marriage, the child can use ta ir, which is a single surname (TMK m. 321).
A name change can only be requested from the judge based on justified reasons. The name is registered and announced in the population register where it has been changed. Changing the name does not change the personal situation. A person who is harmed by the change of his name may sue for the cancellation of the decision to change the name within one year from the date of learning (TMK m.27). The surname is one of the most important elements in determining the identity of an individual as an individual and is an inalienable, inalienable, tightly bound uti right that has become an integral part of an individual’s identity and personality.
Guardianship is called the totality of the rights and obligations that parents, non-adult or restricted adult children have in relation to their assets, assets and representations in these two matters (AKINTÜRK, Turgut: Turkish Civil Code C.2, Family Law, Istanbul 2002, p. 400). Guardianship imposes responsibility on the parents and gives them the authority to make decisions that need to be made about the child until the child becomes an adult.
In this regard, custody in modern law is considered as a sum of rights and obligations, as it is a right, as well as includes the authority and responsibility to ensure the superior benefit of the child. The ultimate goal of custody is to ensure that a minor who is not yet an adult prepares for a future life as an adult in the future (AKYÜZ, Emine Child Law Protection of Child Rights, 2012 p.220). 335 of the Law No. 4721.
the article relates to the right of custody. In the article, the child who is not an adult is under the custody of his parents, the right to custody throughout the marital relationship and the use of powers within this scope together, indicating that custody cannot be obtained from the parents unless there is a legal reason; 336.
the article stipulates that parents will use custody together as long as the marriage continues, that the judge can grant custody to one of the spouses in case of termination of joint life or separation, that custody will belong to the survivor in case of death of one of the parents, the child will belong to the party left to him in case of divorce. The principle of equality of spouses, the right to custody and the use of the powers contained in it are also tried to be reflected in terms of the principle of equality of spouses, the right to custody and the use of the powers it contains.
in Article 4 of the Surname Law dated 21.6.1934 and numbered 2525, it is regulated that the determination of the surname of the child within the scope of the right of custody is regulated in the event of the termination of the marriage or divorce. In the second paragraph of the article, “In the event of the termination of the marriage or divorce, the child receives the name that the father has chosen or will choose, even if he has been transferred to his mother.”
the attached regulation, the Constitutional Court dated 8.12.2011 and E.2010/119, K.with reference to the annulment and justification of the annulment decision by decision No. 2011/165, the marriage of a man and a woman, the rights and obligations of spouses that must be terminated during the marriage and with it, as well as the provisions of international words, rights and obligations during marriage and divorce, which are in the same legal position in terms of child custody rights recognized only under a man’s last name, women’s progressive right to choose, Article 10 of the Constitution. in accordance with the article, the exercise of the right to custody, which will lead to discrimination based on gender, in terms of specifying the subject of the objection. and 41. it was stated that the cancellation decision was made on the grounds that it was considered contrary to the articles.
Decision of the Constitutional Court dated 25.06.2015 and numbered 2013/3434 Number, Date and numbered 11.11.2015 and numbered 2013/9880 and Decision of the individual application dated 20.07.2017 and numbered 2014/1826; To request the change of the surname deposited for the granting of custody of his child to him and to exercise the right of custody of the Constitution in this context is related to the authority of the 20. the article is a value that should be considered in the context of legal, protection, care and supervision rights expressed under custody or similar terms.
Deciding on the name of the child is also where the spouses have rights and obligations during the marriage, and the same legal position continues in terms of Bo’s rehabitation and the rights recognized under child custody, progressive in terms of the man’s right to determine the woman’s last name, progressive in terms of the woman’s right to custody for gender-based treatment, te, although the child and the public have a clear interest in ensuring the stability and reliability of records in a National Registry for the purpose of carrying a child belonging to a family with a surname, the mother’s last name belongs to the child, ensuring the interests of adverse effects on the property in question should be determined with certainty and moderation and in the judicial application of the issue.
It was decided that the application was not accepted and the concrete Article 20 of the Constitution related to the incident was adopted. stating that its article constitutes the subject of judicial decisions of a similar nature, Article 10 of the Constitution. it was decided that the prohibition of discrimination provided for in the article taken together with the article was violated, and in the same decisions, it was also decided to send the file to the relevant court for retrial in order to eliminate the violation and its consequences.
Contrary to abstract and concrete norm control, violation decisions made by the Constitutional Court as a result of an individual application are valid and binding only in terms of the applicant and the administrative action or decision subject to the application. 50 Of the Constitutional Court Board of Directors Law, which determines that the violation of rights determined by the Constitutional Court occurred by a court decision. its substance. (2.) in the face of the decision “retrial for the elimination of the violation and its consequences” taken on the basis of the paragraph, it is no longer possible for the courts of first instance to decide otherwise in terms of the concrete event and person subject of the application.
As explained above, it seems certain that a retrial will be opened only in the application made by the Supreme Court to determine the subject of the individual application and eliminate the consequences of the violation of rights in order to replace the surname of the spouse, the custody authority of the mother of his child with similar judicial decisions in the other case. In accordance with the Constitution and the European Convention on Human Rights to which Turkey is a party, as well as protocols in the field of Public Security, cases filed for “alleged violation of fundamental rights and freedoms” must first be appealed to global judicial authorities to be resolved in the usual way.
Within the scope of these decisions of the Constitutional Court, the principle of “Superior Benefit of the Child” should also be examined. The most general definition of this principle is the protection of the benefit of the child at all times and under all circumstances, it is the most superior principle that guides officials and officials in all problems encountered in child law, orders the choice of solutions for the benefit of the child, protects the weak against the strong (AKYUZ, Emine Child Law Protection of Child Rights, 2012 p. 10). The best interest of the child is a criterion, a guide that should be taken into account in everything that concerns the child, and it is taken into account in determining what is best for the child in a particular concrete event.
The superior benefit of the child also performs a function that guarantees the rights of the child (YUCEL, Journal of the Faculty of Law of Ozge Ufuk University Volume 1 Issue 2, December 2013, p. 117-137). Giving the necessary importance to the superior benefit of the child is in the superior benefit not only of the child or parents, but also of society. Because the positive development of the child in social, cultural, physical and psychological aspects will also prevent the emergence of harmful behaviors in society in the future (BAKTIR, Çetiner Selma, Custody Law, Ankara 2000 p.33).
In the concrete case, the plaintiff’s mother claimed that the custody right was uncomfortable with the child having different surnames, while the defendant claimed that the prosecutor wanted the child’s father to bear the same surname as his parents, who were not related to him for about three years, did not want to see the father of his child, the child’s mother felt uncomfortable bearing the same surname where she lived, the mother constantly called out demanding to share the same surname, when introducing the surname, the mother’s surname was “Outpost” and declared as expressed. Although it is not suggested that if the child’s surname is changed to his mother’s surname, the child’s mental development will be negatively affected in terms of superior benefit, it is understood from the witness statements just described that changing the child’s surname to his mother’s surname may be in the child’s best interest.
In the light of all these explanations; Changing the mother’s surname to be kept for the custody of her child with the requested surname that is within the scope of the authority to exercise the right of custody, including the right to determine the surname of the child covered by the right of custody, within the scope of the authority to exercise the right of custody, under the surname of a man who is in the same legal position of the child’s right of custody, granting the progressive woman the right to determine, gender-based treatment in terms of the use of the right of custody,
if Clay carries a child who will give birth to the marital union in the family surname, at the termination of the marriage union, there is no legal regulation preventing the mother whose custody right has been transferred to her from changing her surname, this change is not contrary to the superior benefit of the child in the concrete case, the child’s personal situation will not change by changing her surname (TMK m. 27) taking into account the decisions of the Constitutional Court regarding the violation of rights in similar cases, it was necessary to decide on the acceptance of the case, it was not correct to establish a written judgment, it was necessary to decide on the violation of the judgment.
Conclusion:
Izmir Regional Court of Justice 2. Izmir court of first instance 8 with the decision of the Legal Department dated 14.11.2017 for the reason explained above. CANCELLATION of the Legal Department. It was UNANIMOUSLY decided to OVERTURN the decision of the Family Court No. 523/2017 dated 18/12/2017 numbered 2017/2017/11, to send the file to the said court of first instance, to send a sample of the decision to the said regional court of justice legal department and to return the appeal fee to the depositor if requested. 09.04.2018