Ortak Velayet

Abstract

The Turkish Civil Code (TCC) clearly states that the parents shall exercise joint custody in a marriage union. There is no provision in the TCC about joint custody after divorce and in cases of extramarital intercourse. In the doctrine, it has been discussed for years whether joint custody is possible or not on the basis of Art. 336/3, Art. 182/3 and Art. 337 of the TCC. Judicial decisions show that joint custody was not accepted until recently on the grounds that it is contrary to public order. However, with the entry into force of Additional Protocol No. 7 to the European Convention on Human Rights, the Court of Cassation reversed its established practice and decided that joint custody is applicable in our law. Thus, the debate on whether joint custody is possible or not has been replaced by a new debate on how to regulate joint custody. Joint custody has become a part of the legal systems of many countries and it is encouraged by many international conventions to which Turkey is a party. However, the implementation of joint custody based on the general provisions of international conventions without any legal regulation is an important deficiency in the rule of law. In order to clarify the many controversial issues regarding the implementation of joint custody and to ensure uniformity in judicial decisions, a detailed legal regulation on joint custody is urgently needed.