Abstract
Societies transfer their basic values to new generations through child custody within the family. Therefore, bringing up children in healthy families is beneficial to society. Despite the importance of maintaining the sustainability of the family, which is the basic unit of society, when family sustainability is not possible, a basic duty of the courts must be to provide the best custody model for the welfare of the child after the dissolution of a marriage. Studies have shown that children have a better psychological state and can more easily overcome the trauma of divorce when the courts rule for joint custody than when the courts rule for sole custody. Joint custody, provided for in many legal systems, is not regulated in Turkish law. Thus, requests for the enforcement of foreign joint custody judgments are rejected by Turkish courts for violating public policy. Turkish courts incorrectly consider foreign law, which provides different rules, as grounds for public policy intervention. In this study, it is found that Turkish courts can rule for joint custody by depending on international conventions. Within this framework, it is not possible to reject the enforcement of foreign joint custody judgments by depending on the public policy exception.
Highlights
States exercise their sovereignty through their legal branches
The applicant claimed that it is possible to rule for joint custody under Turkish Civil Code (TCC), sole custody was given by the court, and ECHR Additional Protocol 7 Article 5, which provides equality among spouses regarding their personal relationship with children, which became part of Turkish legal system, is violated
That is why it is suggested that instead of joint custody or sole custody being the principle under the TCC, right of discretion must be given to judges to rule for the best custody model in each specific case
Summary
States exercise their sovereignty through their legal branches. The legislative branch makes laws, the executive branch applies these laws, and the judiciary resolves conflicts within the framework of these laws to protect the public order. As rules regarding custody are mandatory, the Turkish Court of Cassation rejected to rule for enforcement of foreign joint custody judgments by depending on public policy exception. If it serves for the best interests of the child, joint custody may beneficial to children and parents, and decrease the number of international child abductions and human rights violations. Literature review includes previous research and academic studies and discussions on the scope of joint custody and public policy exception regarding enforcement of foreign custody judgments. The study focuses on the research subject from the private international law and civil law perspectives
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