7 Steps to Obtaining Temporary Custody in a Divorce Case

7 Steps to Obtaining Temporary Custody in a Divorce Case. This research report examines “Temporary Custody” (Interim Custody), one of the most painful and legally complex dimensions of divorce cases within the Turkish Family Law system. It analyzes the subject in seven fundamental steps, in light of doctrinal discussions, current Court of Cassation (Yargıtay) precedents, and international conventions. Shaped around Article 169 of the Turkish Civil Code (TCC), this process is not merely a legal procedure but a multi-layered judicial activity containing socio-psychological dynamics. The report covers a wide spectrum, from measures taken ex officio by the judge upon the destabilization of the marital union to the application of the “best interests of the child” principle in concrete cases; from the determinative role of Social Investigation Reports (SIR) to the impact of the will of a child of “age of discretion” on the proceedings. Furthermore, objection mechanisms to interim decisions under Article 394 of the Code of Civil Procedure (CCP) and the new “child delivery” procedures introduced by Law No. 7343 are analyzed with details critical for practitioners. The study aims to create a reference resource for legal professionals, academics, and relevant stakeholders by blending theoretical knowledge with practical application examples.

The Place and Importance of Temporary Legal Protection in Family Law

A divorce case is legally constitutive in nature; meaning, with the acceptance of the case, an existing legal status (marriage) ends and a new status (divorced) begins. However, leaving the legal status of the parties and joint children in uncertainty during the period from the filing of the lawsuit until the finalization of the judgment creates a gap that modern legal systems cannot accept. To fill this gap, the legislator has foreseen “temporary legal protection” measures. The most vital of these measures is undoubtedly the “Temporary Custody” decision regarding who will have custody of the vulnerable joint children during the litigation process.

Temporary custody, unlike a final custody judgment, bears the character of a “precautionary measure” (injunction). Its purpose is not to resolve the substance of the dispute, but to protect the child’s physical, mental, and moral integrity during the time until the dispute is concluded. In this process, while the judge tries to strike a balance between the conflicting interests of the parties, they must absolutely place “the best interests of the child” at the center of the scale. This report addresses this delicate balance through a seven-stage methodology.

Step 1: Legal Basis and the Nature of Judicial Intervention (TCC Article 169)

The court’s power of intervention in divorce and separation cases is explicitly regulated in Article 169 of the Turkish Civil Code. This article constitutes the most important point where divorce proceedings diverge from the general principle of “adherence to demands” in procedural law.

1.1. Public Order and the Ex Officio Research Principle

The provision of TCC Art. 169 imposes a broad discretion and simultaneously a duty on the judge with the statement: “When a divorce or separation lawsuit is filed, the judge takes the necessary temporary measures ex officio regarding the continuation of the lawsuit, especially concerning the accommodation and livelihood of the spouses, the management of the spouses’ assets, and the care and protection of the children.”

The fact that this provision relates to “public order” means the following: Even if the parties (mother and father) have made a protocol between themselves regarding who the children will stay with, how much alimony will be paid, or how personal relations will be established, the judge is not bound by this agreement. If the judge concludes that the parties’ agreement is contrary to the child’s interest (for example, if custody is left to a parent known to neglect the child), they reject this agreement and apply the measures they determine themselves. Custody in divorce cases is not a subject of a private law contract that parties can freely dispose of; it is under the supervision and audit obligation of the state.

1.2. Scope of Temporary Measures

Measures taken under TCC Art. 169 are not limited to custody, but the custody decision lies at the center of all other measures:

• Accommodation (Allocation of the Family Residence): Based on the principle of not uprooting the child from their accustomed environment, the family residence may need to be allocated to whomever temporary custody is granted, and the other spouse may need to be removed from the house. This is an allocation of usage rights independent of property rights.
• Care and Supervision of Children (Temporary Custody): This is the determination of whom the child will physically stay with. This decision does not terminate the final custody right, it only grants the authority of usage temporarily to one party.
• Financial Measures (Temporary Alimony): It is ruled that a contribution fee be paid to the party undertaking the child’s care, in proportion to the other party’s financial power. This is to prevent the child from falling into economic deprivation during the litigation process.

Table 1: Structural Differences Between Temporary Custody and Final Custody

Step 2: The Determining Criteria: The Best Interests of the Child Principle

The sole compass the judge uses when making a decision under TCC 169 is the “Best Interests of the Child” principle. This concept has become part of our domestic law through the United Nations Convention on the Rights of the Child (Art. 3). “Best interests” is not an abstract wish, but the provision of the child’s physical, mental, spiritual, moral, and socio-economic development at the highest level in the concrete case.

2.1. Custody Preferences According to Age Groups (Court of Cassation Practices)

Established precedents of the 2nd Civil Chamber of the Court of Cassation show that the child’s age and developmental period play a critical role in custody discretion. This assessment is supported by pedagogical data.

2.1.1. 0-3 Years Period: Need for Maternal Care (Age of Tender Years)

This is a phase where the child absolutely needs the mother, and maternal care and affection are of “vital” importance. In legal practice, unless the mother has a severe psychological disorder threatening the child’s life or a factual impossibility (e.g., imprisonment, contagious disease), giving custody to the father is an extremely exceptional situation. The breastfeeding process and the formation of a basic sense of trust are effective in this decision. The mother’s insufficient economic status is not a reason alone to give custody to the father in this age group; because economic deficiency can be remedied with alimony.

2.1.2. 4-7 Years Period: Period of Affection and Interest

In this period covering preschool and the start of primary school, although the child has gained basic skills like eating and toileting, they are still in need of intense maternal interest and affection. In Court of Cassation decisions, taking a child in this age group (e.g., 6-7 years old) from the mother and giving them to the father is seen as an action that could disrupt the child’s psychological balance. No matter how interested the father is, he may not be able to meet the daily care needs (hair combing, dressing, emotional regulation) of a child in this age group as naturally as a mother. However, in cases that damage “best interests,” such as the mother leading an immoral life or inflicting violence on the child, custody may pass to the father.

2.1.3. School Age and Adolescence

With school age, balances begin to shift. The continuity of the child’s educational life, social circle, friends, and courses gains importance. The court approaches custody requests that would disrupt the child’s school order (e.g., requiring a city change) cautiously. Additionally, the gender factor may come into play during adolescence; the need for a male child to identify with the father and a female child with the mother may be considered, but this is not an absolute rule.

2.2. Material Possibilities and the “Fault” Fallacy

The common perception in society that “the wealthy one gets custody” or “the cheating spouse loses custody” is legally incorrect.

• Economic Power: Custody is not a wealth competition. The child’s need for love and attention cannot be bought with money. If the parent to whom custody should be given (e.g., a homemaker mother) has no income, the court provides this balance by ruling “temporary alimony” against the father. The Court of Cassation does not view economic insufficiency as a reason for loss of custody.
• Spousal Fault vs. Parental Fault: Being “at fault” in a divorce case (e.g., cheating on a spouse) does not automatically mean being a “bad parent.” Infidelity is an issue between spouses; as long as it does not involve neglect or abuse towards the child, it does not directly affect custody competence. The judge meticulously distinguishes the role of the spouse from the role of the parent.

2.3. Principle of Not Separating Siblings

The divorce process is already a traumatic experience for children. In this process, separating children from their siblings creates “trauma within trauma.” The Court of Cassation does not look favorably on splitting the custody of siblings (giving one to the mother, the other to the father) unless there is a mandatory reason. Siblings growing up together, supporting each other, and developing a sense of solidarity are evaluated within the scope of the child’s best interests.

Step 3: Evidence Collection and Scientific Data: Social Investigation Report (SIR)

Although the judge is an expert in legal science, they do not possess technical knowledge in the fields of child psychology, pedagogy, and social work. To remedy this deficiency and base their decision on scientific grounds, they apply for expert opinion pursuant to Article 5 of the Law No. 4787 on the Establishment, Duties, and Trial Procedures of Family Courts. The product of this process is the “Social Investigation Report” (SIR).

3.1. SIR Preparation Process and Methodology

The expert appointed by the court (psychologist, pedagogue, or social worker) conducts a comprehensive investigation process. This process is carried out not at a desk, but in the field and through face-to-face interviews.

1. Expert Interviews: The expert interviews both parents and the child separately. In these interviews, the parents’ approach to the child, educational visions, anger control, and attitudes towards each other are analyzed.
2. Home Visits (Field Scanning): When deemed necessary, the home environment where the child will live is visited. Whether the child has their own room, the hygiene conditions of the house, heating status, and safety are examined on-site.
3. Observation of the Child: Especially in small children who cannot express themselves, the level of “attachment” is determined by observing the interaction (playing games, eye contact, physical contact) between the parent and the child.

3.2. Content of the Report and Judicial Discretion

The prepared report includes the socio-economic status of the family, psychological profiles of the parents, developmental needs of the child, and the expert’s final opinion on custody.

• Bindingness: SIR is “discretionary evidence” by its legal nature. The judge is not absolutely bound by the result in the report. However, according to Court of Cassation practice, if the judge is to make a decision contrary to the expert report, they must state the reason for this (material error in the report, suspicion of bias, contradiction, etc.) explicitly and in a manner suitable for audit in their decision. Otherwise, establishing a judgment contrary to the report is grounds for reversal.
• Right to Object: Parties can submit their statements against the report, claim the report is insufficient or biased, and request an “additional report” or the formation of a new expert panel.

Table 2: Key Factors Evaluated in the Social Investigation Report (SIR)

Step 4: Child’s Right to Participate: Age of Discretion and Being Heard

The child is not an “object” of the divorce case, but a “subject” with rights. Article 12 of the United Nations Convention on the Rights of the Child, to which Turkey is a party, and the European Convention on the Exercise of Children’s Rights make it mandatory for a child capable of forming views to be heard in judicial proceedings affecting them.

4.1. Concept of “Age of Discretion” and Court of Cassation Criteria

There is no definite age limit specified in Turkish legislation for the “age of discretion” (idrak çağı). However, in the established precedents of the 2nd Civil Chamber of the Court of Cassation, children generally aged 8 and above (in some decisions 10 years) are considered to be of the age of discretion. A child reaching this age is assumed to have the ability to perceive events, establish cause-effect relationships, understand the concept of time, and comprehend the consequences of their preferences.

4.2. Procedure for Hearing the Child

Hearing the child in court cannot be done like hearing an adult witness. This process is subject to special procedures to prevent the child from being traumatized (secondary trauma):

• Judicial Interview Rooms (AGO): Children are not forced to choose sides in front of their mothers and fathers in the gloomy atmosphere of the courtroom. Interviews are conducted in AGOs, which are specially designed to resemble a home environment, accompanied only by an expert (psychologist/pedagogue). The judge and lawyers follow the interview from behind a mirrored room or via audio/video systems; they convey their questions to the expert via headphones.
• Value of the Child’s Statement: The statement of a child of discretion age is very important, but not solely binding. The expert analyzes whether the child gave this statement with “free will.” If the child makes a choice under the pressure, threat, or promises (e.g., “I will take you to Disneyland”) of a parent, the expert reports this situation, and the judge may decide contrary to the child’s statement. However, if the child’s preference is not contrary to their best interests, the court must prioritize this preference.

Step 5: Construction of the Interim Decision: Entrustment of Custody and Personal Relations

The court creates an “interim decision” in light of the collected evidence, the SIR report, and the child’s statement, if any. This decision draws the roadmap for the parties and the child until the end of the case.

5.1. Temporary Granting of Custody

The judge grants the “temporary custody” right to the parent they deem most suitable for the child’s interest. With this decision, that parent becomes the primary authority regarding the child’s care, education, and health decisions. While the other parent’s custody right continues, their actual usage is restricted.

5.2. Establishment of Personal Relations (Visitation Schedule)

Establishing a regular personal relationship between the parent who is not granted custody and the child is a constitutional right (TCC Art. 323, 326). The purpose of this relationship is to ensure the child does not break away from or become alienated from the parent. While regulating personal relations, the court should produce “boutique” solutions suitable for the child’s age and needs instead of using standard templates.

Examples of Personal Relations by Age Group:

• Breastfeeding Infants (0-2 Years): Since the baby needs maternal care, overnightvisitation with the father is generally not granted. Visits are arranged at frequent intervals but for short durations (e.g., every weekend on Saturday or Sunday between 10:00 – 17:00). The aim is for the father to bond with the baby without disrupting the baby’s feeding schedule.
• Preschool and School Age (3+ Years): When the child reaches the maturity to stay apart from the mother, overnight personal relations begin.
  • Weekends: Specific weekends of the month (Usually the 1st and 3rd weekends) from Friday evening to Sunday evening.
  • Religious Holidays: The 2nd or 3rd day of the holiday.
  • Summer Vacation and Semester: Continuous visitation between 15 days to 1 month in July or August; one week of the semester break.
  • Special Days: Visitation with the father is ensured on days like Father’s Day.

5.3. Temporary Alimony

Along with temporary custody, “Affiliation Alimony” (Temporary Alimony during the lawsuit) is ruled in favor of the party receiving custody, to be spent on the child’s expenses. In determining the amount; the child’s age, education expenses, special needs, and the economic power (payroll, assets, standard of living) of the alimony obligor (the other parent) are taken into account.

Step 6: Legal Remedies: Objection, Modification, and Revocation

Since the temporary custody decision is not a finalized judgment, it can always be changed if conditions change or if it is understood that the decision was erroneous.

6.1. Objection Procedure to Interim Decision (CCP Article 394)

Pursuant to CCP Art. 394, the temporary custody decision, which is in the nature of a precautionary measure, can be subject to objection within one week (7 days) from the date of pronouncement in the hearing or notification. The objection is made with a petition to the court that gave the decision.

• Examination of the Objection: The court examines the objection over the file or by hearing the parties if necessary. Upon objection, it may change the measure decision, lift it, or decide to continue it as is.
• Is There a Time Limitation? The 1-week period in the CCP is a procedural rule. However, since the “best interests of the child” is considered public order in Family Law, the time limit does not practically operate in custody-related requests. Parties can request the modification of temporary custody at every stage of the case (until the decision is finalized) by putting forward changing conditions (new evidence, claim of neglect, etc.).

6.2. Request for Custody Modification in Changing Conditions

New situations emerging after the temporary custody decision is given may require custody to change hands:

• The custodial parent moving abroad or changing cities (if it will prevent the child’s relationship with the other parent).
• The custodial parent remarrying and the stepparent treating the child badly.
• The child being subjected to violence, neglected, or not sent to school.
• The custodial parent persistently failing to comply with the personal relationship decision and not letting the child see the other parent (This is accepted as a just cause for changing custody – TCC Art. 324).

Step 7: Execution and Enforcement: Child Delivery Reform

It is essential for legal security that temporary custody and personal relationship decisions do not remain on paper but can be effectively enforced. A radical reform was made in Turkey regarding this issue in 2021.

7.1. Transition from Enforcement System to “Judicial Support” System

Previously, under the Execution and Bankruptcy Law, the child was taken delivery of by force through enforcement officers and police in the status of a “movable property.” This situation caused great trauma in children. With Law No. 7343, the articles regarding child delivery in the Execution and Bankruptcy Law were repealed, and the process was taken under the scope of the Child Protection Law.

• Child Delivery Centers: Transactions are now carried out in special centers established within the Ministry of Justice Directorates of Judicial Support and Victim Services (ADM).
• Expert-Oriented Approach: Delivery procedures are carried out not by police force, but accompanied by psychologists, pedagogues, and social workers, observing the child’s psychology.
• Free Service: Fees or expenses are no longer charged for child delivery procedures; expenses are covered by the state.

7.2. Sanctions for Non-Compliance with the Decision

In the new system, Disciplinary Imprisonment (Coercive Imprisonment) can be applied upon the complaint of the other party against the parent who does not deliver the child or prevents the personal relationship despite the court decision. Furthermore, the custodial parent continuously not showing the child constitutes a strong ground for custody to be taken from them and given to the other party (TCC Art. 182, 324).

7.3. Effect on Final Decision

The temporary custody process is actually a rehearsal for the final decision. If the child has established an order, gone to school, and been happy with a parent during the lawsuit (which can take 1.5 – 3 years for contested divorce cases in Turkey), the court does not want to disrupt this “established order” (status quo) when giving the final decision. Therefore, obtaining temporary custody and taking good care of the child during this process is the most important step to winning final custody. However, this does not mean the person with temporary custody has definitely won the case; it can change at any moment as a result of SIR reports and developments in the judicial process.

The temporary custody decision in a divorce case is the most critical point where legal technique intersects with human psychology. The seven steps presented in this report show that the process is not merely about articles of law; it is a complex judicial activity where the child’s age, development, expert opinions, and parenting skills are evaluated as a whole. In this process, which starts with TCC Article 169, deepens with social investigation reports, takes shape with the child’s discretion, and moves to a humane dimension with the new child delivery model, the main goal is not to satisfy the egos of the parents, but to protect the “best interests” of the child, who is the most innocent party of the divorce. It is of vital importance for the child’s future that legal practitioners and parents carefully follow these seven steps.