In the globalizing world, relationships between citizens of different countries have become increasingly common. As a result, custody of children becomes a big problem after couples separate.
Of course, the custody situation of children born and unborn within the marriage will be different.
However, in both cases, problems arise such as which parent the children will stay with in which country or what their relationship with the other parent will be like after the separation.
Such problems have led to an increase in international child abduction cases.
Parents who may or may not have custody may abduct their children to their own countries or to third countries.
There are many international agreements aimed at protecting the best interests of the child and the child's relationship with the other parent.
Internationally Participated Agreements
The Hague Convention on the Legal Aspects of International Child Abduction, to which Turkey is a party, and the Law on the Legal Aspects and Scope of International Child Abduction, which regulates the procedures and principles to ensure the implementation of the Convention, are the main legal sources in Turkish law in cases of international child abduction.
Another important convention is the European Convention on the Recognition and Enforcement of Decisions Concerning the Custody of Children and the Return of Custody of Children.
The common purpose of these agreements is to prevent the abuse of the right of custody, to change the country against the interests of the child, and to establish the right of the other parent to establish a personal relationship with the child.
The General Directorate of Foreign Relations and European Union of the Ministry of Justice has been accepted as the central authority in Turkey for the implementation of the Hague Convention on the Civil Aspects of International Child Abduction.
Situations to be evaluated within the scope of kidnapping of a child
The mother or father who has been given custody of the joint child will of course be able to go abroad with the child.
In an ongoing marriage, custody of the child is shared. When a mother or father takes the child abroad without the knowledge of the other parent, the first thing to consider is whether the child's aim is to cut off the child's relationship with the other parent.
If the child is taken abroad temporarily, for example for holiday purposes, it cannot be considered an act of child abduction.
However, if the other parent does not have permission and the aim is to sever the child's relationship with the other parent, the act of child abduction can be considered.
With these two conditions, the following acts will be considered within the scope of child abduction:
- If the child who has joint custody rights has been taken to another country without the permission and approval of the other parent,
- If the parent who was not given custody took the child abroad while the divorce case was ongoing,
- If the parent who was not given custody rights took the child abroad.
However, the point that should not be forgotten is that although the parent with custody rights can make most decisions regarding the child without consulting the other parent, he does not have the right to prevent the other parent from establishing a personal relationship with the child.
If the parent who is given the right of custody takes the child abroad to avoid showing the other parent, this will mean abuse of the right of custody.
Applying Authority
Within the scope of the Hague Convention, the parent whose custody rights have been violated must first apply to the Chief Public Prosecutor's Office for the return of the child.
The Chief Public Prosecutor's Office will first examine whether the country where the child was abducted is a party state to the convention.
If it is understood that the country where the child was abducted is a party state, the prosecutor's office will forward the file to the Ministry of Justice in order to collect documents for the child's return procedure.
Responsible and Competent Court
In accordance with Article 6 of the Law No. 5717 on the Legal Aspects and Scope of International Child Abduction, the competent court is the family courts.
The competent court is the court of the place where the child resides at the time of the application for the return of the child or the establishment of a personal relationship or the place where the child is placed under temporary protection in accordance with Article 10 of the same law.
Can legal action be initiated in the country where the child was kidnapped?
First of all, the parent who has the right of custody must initiate the procedures for the return of the child in the country where he is located.
However, in some cases, initiating legal proceedings in the country where the child was abducted will provide a significant advantage in accelerating the process.