Removal of a Child from Turkey Without Permission by a Foreign Parent: International Child Abduction Case

The removal of the joint child from Turkey in violation of the other parent's custody rights, or the failure to return the child to Turkey at the agreed time after being taken abroad for a holiday, visit, or similar temporary permission, constitutes, if the conditions are met, under the Hague Convention on the Civil Aspects of International Child Abduction dated October 25, 1980, wrongful removal or wrongful retention may constitute.

Immediately prior to the wrongful removal or retention of the child if their habitual residence is in Turkey and the Convention applies to the relations between the two states concerned, the return of the child to the country of habitual residence may be requested before a decision is rendered on the merits of custody. The purpose of the international child abduction mechanism is to prevent the creation of a factual superiority regarding custody through wrongful removal or retention, and to ensure that the primary dispute concerning custody is resolved, as a rule, before the competent authorities connected with the child's habitual residence.

For Turkey, the process is governed by the 1980 Hague Child Abduction Convention and the Law No. 5717 on the Legal Aspects and Scope of International Child Abduction shall be evaluated within the framework of.

, which regulates the procedures and principles regarding the application of the Convention in Turkey. Turkey signed the Convention on January 21, 1998, ratified it on May 31, 2000, and the Convention entered into force for Turkey on August 1, 2000. Current state parties and entry-into-force relations should be verified additionally from the HCCH status table prior to application.

For the general legal framework regarding foreign spouses or family relations with foreign elements, please see divorce of foreign nationals in Turkey, and regarding custody and interim measures during the divorce process, please see divorce process statements regarding the matter may also be examined.

What Is International Child Abduction?

The concept of international child abduction does not merely refer to the forcible abduction of a child by a stranger or a third party. The removal of a child to another state by a mother or father in violation of the custody rights of the other person or institution, or the wrongful retention of the child there, may also fall within the scope of the Convention.

Difference Between Wrongful Removal and Wrongful Retention

Wrongful removal, is the removal of a child from their country of habitual residence to another country in violation of existing custody rights.

Wrongful retention , on the other hand, is when an initially lawful trip abroad subsequently becomes unlawful. For example, a child may have been taken to another country for a two-week vacation with the consent of the other parent, but not returned on the agreed return date.

Pursuant to Law No. 4721, Türk Medeni Kanunu as a rule, a minor child is under the custody of their mother and father. While the marriage continues, the mother and father exercise custody jointly. In the specific case, the scope of custody rights and the authority to determine the child's residence must be evaluated separately.

Is the Hague Convention a Custody Proceeding?

No. The return proceedings conducted under the Hague Convention and a traditional custody lawsuit do not constitute the same legal dispute.

During the return proceedings, the court primarily examines the child's habitual residence, whether the removal or retention was wrongful, the applicant's custody rights, and whether any grounds for refusal of return under the Convention exist. The court's duty is not to decide which parent is “better”.

For the general framework of traditional custody and divorce disputes in Turkey, divorce and family law page can be visited.

To Whom Does Law No. 5717 Apply?

Pursuant to Article 3 of Law No. 5717, a “child” is defined as a person under the age of 16 . Therefore, the age limit of 16 is significant regarding the Hague return mechanism.

Law No. 5717 also defines the right of custody as the right to care for, supervise, and protect the child, as well as to determine their place of residence.

Essential Conditions Required for the Return of the Child to Turkey

1. The Child's Habitual Residence Being Turkey

In terms of requesting the return to Turkey of a child taken from Turkey to another country, the primary connecting factor is not citizenship, but rather habitual residence.

The concept of habitual residence is not determined solely by population registration or citizenship information in a passport. Where the child's daily life is actually spent; their school or nursery life, family and social environment, the nature of the duration of their stay, and other characteristics of the specific case are evaluated together.

Example: A Turkish citizen mother and a foreign citizen father live together in Istanbul, and their joint child attends school in Istanbul. While the center of the child's daily and social life is in Turkey, if the father takes the child to another country in violation of the other parent's custody right, provided that other conditions are also met, wrongful removal may come into question within the scope of the Hague Convention.

2. Violation of Custody Rights

For the purposes of the Convention, the removal or retention of the child must breach the right of custody existing immediately before the wrongful act.

While the marriage continues, mother and father exercise custody jointly pursuant to Article 336 of the Turkish Civil Code. After divorce, the scope of the custody right is determined according to the rendered court decision and the specifics of the case.

The effect in Turkey of a foreign court's decision regarding custody may additionally invoke private international law rules. In this regard, the article on recognition and enforcement of foreign court judgments in Turkey can be examined.

3. Actual Exercise of Custody Rights

The applicant must have been actually exercising the right of custody prior to the wrongful removal or retention, or would have exercised it had the wrongful act not occurred.

This assessment is not limited solely to the existence of a custody order. The actual situation regarding the child's care, supervision, and life may also be significant.

4. Applicability of the Hague Convention Between the Relevant States

It must also be verified whether the State to which the child has been taken is a Contracting State to the Convention, and particularly in the case of acceding States, whether a Convention relationship has entered into force between Turkey and that State.

Therefore, one should not proceed solely based on the information that “the country is a party to the Convention”; the current status from the current status table of the Hague Conference on Private International Law must be verified.

If the Convention does not apply to the country in question, an international return request shall be separately evaluated within the framework of the domestic law of the relevant country, applicable bilateral or multilateral agreements, recognition and enforcement rules, and diplomatic/judicial cooperation mechanisms.

What Is the One-Year Period in International Child Abduction?

Pursuant to Article 12 of the Hague Convention, the one-year period is neither a statute of limitations nor a forfeiture period..

If proceedings are initiated before the competent judicial or administrative authority within less than one year from the date of the wrongful removal or retention, the Convention mandates the immediate return of the child, provided that the conditions are met.

Filing an application after one year does not automatically eliminate the right of return. However, in such cases, proof that the child has settled in their new environment may be subject to further evaluation under Article 12 of the Convention.

Therefore, taking action without delay in international child abduction cases is crucial in practice.

Six-Week Expedited Rule

Article 11 of the Hague Convention requires the authorities concerned to act expeditiously regarding the return of the child. If the relevant judicial or administrative authority has not reached a decision within six weeks from the commencement of the proceedings, the applicant or the relevant Central Authority may request a statement of the reasons for the delay.

This the six-week period is neither a strict time limit for concluding the lawsuit nor a forfeiture period; It is a special mechanism supporting the objective of expedited proceedings of the Convention.

Pursuant to Article 9 of Law No. 5717, statutory matters in Turkey are handled as a matter of priority and with urgency in accordance with the simple trial procedure. Pursuant to Article 16 of the same Law, such lawsuits and proceedings are also heard during the judicial recess.

How to File an Application for a Child Abducted from Turkey?

Application Through the Turkish Central Authority

Central Authority Pursuant to Law No. 5717 It is the Ministry of Justice. In practice, the central authority duties regarding the Convention are carried out by the Directorate General for Foreign Relations and European Union of the Ministry of Justice.

of the Ministry of Justice international child abduction and custody proceedings page, it is explained that the duty of the Central Authority is fulfilled through local Offices of the Chief Public Prosecutor.

Pursuant to Article 7 of Law No. 5717, the applicant may apply to the central authority of the place where the child's habitual residence is located, to the Turkish Central Authority, or to the central authority of another state party to the Convention.

Documents That Can Be Used in the Application

• The child's identity, birth, and passport information,
• Recent photographs of the child,
• School, health, residence, or similar records showing the child's habitual residence in Turkey,
• Civil registry and court documents showing the basis of custody rights,
• If any, divorce, custody, or personal contact decisions,
• Current information regarding the child's travel and exit abroad,
• Known address and contact information of the abducting or retaining parent,
• Documents indicating the scope and duration of consent, if any, regarding the temporary travel,
• Correspondence and documents that may demonstrate that the return was agreed upon or that consent was not given for the removal.

The required document list is not the same in every file. The country where the application will be made, the need for translation, and the forms requested by the Central Authority must also be checked.

Direct Application in the Country Where the Child Is Located

Article 29 of the Hague Convention stipulates that the Central Authority mechanism under the Convention does not preclude individuals from applying directly to competent judicial or administrative authorities.

Therefore, to the extent permitted by the law of the state where the child is located, it may also be possible to conduct a direct return proceeding before the competent authority in that country. The court having jurisdiction, representation requirements, legal aid, and provisional protective measures are additionally determined according to the law of the country where the child is located.

If the Child Has Been Brought to Turkey from a Foreign Country

In the event that a child is wrongfully removed from a foreign state to Turkey or retained in Turkey, pursuant to Article 6 of Law No. 5717, the court having jurisdiction is the Family CourtJurisdiction is determined based on the place where the child habitually resides at the time of the application or where the child is placed under protection pursuant to Article 10 of the Law.

Pursuant to Article 7/2 of Law No. 5717, the lawsuit regarding the return of the child is filed by the local Office of the Chief Public Prosecutor on behalf of the Central Authority.

Circumstances Under Which the Return of the Child May Be Refused

While prompt return is the core mechanism under the Hague Convention, the return is not absolute and without exception. The Convention contains provisions, particularly in Articles 12, 13, and 20, that allow for the refusal of return under certain conditions.

Grave Physical or Psychological Risk – Article 13(1)(b) of the Convention

This exception may be evaluated if the person opposing the return establishes that there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

However, this provision does not mean that custody proceedings are to be retried within the context of the return action. The nature of the concrete risk, available protective measures, and the child's circumstances are examined collectively.

Objection of the Child to Return

The Convention empowers the court to refuse the return in cases where the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views.

There is no fixed statutory age limit such as "10 years of age," "12 years of age," or the like established for this purpose. The age and maturity of the child are evaluated on a case-by-case basis.

Non-Exercise of Custody Rights or Consent

If the party opposing the return proves that the applicant was not actually exercising custody rights at the time of the removal or retention, or had consented to or subsequently acquiesced in the removal or retention, the refusal of return may come into question pursuant to Article 13(1)(a) of the Convention.

The scope of consent is particularly important during temporary vacations. Permitting a child to stay in another country until a specific date does not, in any case, imply consent to the child remaining in that country indefinitely.

Differences Between Hague Return Proceedings and Classic Custody Cases

Scroll horizontally to view the full table

International Child Abduction in Court of Cassation (Yargıtay) Precedents

Yargıtay 2nd Civil Chamber, E. 2024/1655, K. 2024/4965, 27.06.2024

The decision of the Yargıtay 2nd Civil Chamber dated June 27, 2024, numbered E.2024/1655 and K.2024/4965, concerns a dispute regarding the allegation of wrongful retention in Turkey through the violation of custody rights.

The decision is particularly significant in terms of distinguishing between the scope of permission granted for the temporary removal of the child to another country and the phenomenon of wrongful retention that may arise in the event of the child's non-return.

The citation has been verified: Court of Cassation 2nd Civil Chamber, E.2024/1655, K.2024/4965, D.27.06.2024.

Court of Cassation General Assembly of Civil Chambers, E. 2024/255, K. 2024/245, 15.05.2024

In the decision of the Court of Cassation General Assembly of Civil Chambers dated May 15, 2024, numbered E.2024/255 and K.2024/245, the dispute relates to the request for the return to the habitual residence.

In the decision, the procedural history of the file was evaluated; it was concluded that the decision rendered by the Court of First Instance, due to collecting new evidence and establishing new reasoning following the reversal, was not a true persistence decision (direnme kararı), and it was ruled that the file be sent to the Court of Cassation 2nd Civil Chamber for appellate review.

Therefore, it is not accurate to report the aforementioned General Assembly of Civil Chambers decision directly as "The General Assembly of Civil Chambers ordered the return of the child to Germany." The decision is essentially procedural in nature regarding the distinction between a persistence decision/new judgment and the chamber that will conduct the appellate review. Nevertheless, the text of the decision includes evaluations by the previous Court of Cassation 2nd Civil Chamber and explanations regarding the return principles of the Hague Convention.

What Measures Can Be Taken Before the Child Is Removed from Turkey?

If there is a concrete and imminent risk of abduction, interim legal remedies aimed at protecting the child in an ongoing divorce or custody dispute may be evaluated.

Article 169 and Article 346 of the Turkish Civil Code, and, where conditions are met, numbered 6100 Code of Civil Procedure provisions on interim legal protection within its scope may come into play depending on the specific dispute.

The necessity and proportionality of the measure regarding the restriction of the child's travel abroad must be evaluated by the court on a case-by-case basis. It cannot be said that such a measure will be automatically applied in every family dispute.

regarding interim measures and custody issues in divorce cases guide to the divorce process with custody and personal relationship arrangements in uncontested divorce content regarding them may also be examined.

Is TCK Art. 234 Always Applicable in International Child Abduction?

No. International child abduction and criminal liability under the Turkish Penal Code must be evaluated separately.

Turkish Penal Code Art. 234/1; penalizes a parent or mother/father whose custody right has been revoked, or a blood relative up to the third degree, who abducts or detains a child who has not completed the age of sixteen from the side of the custodian, guardian, or person under care and supervision, without using force or threats.

Therefore, one of the parents who jointly exercise custody during the marriage taking the child abroad without the other's consent does not alone and automatically mean that the offense under TCK Art. 234/1 has been committed. Criminal liability must be evaluated separately within the framework of the perpetrator's legal status and the specific circumstances of the case.

Can an INTERPOL Yellow Notice Be Used If the Child's Whereabouts Are Unknown?

INTERPOL's Yellow Notice system is an international police alert for locating missing persons and may also be used in cases involving parental child abduction.

However, individuals cannot directly issue a Yellow Notice through INTERPOL. In appropriate cases, the request is processed through the competent law enforcement authorities of the member state and the INTERPOL National Central Bureau. Therefore, it is crucial to inform the relevant law enforcement and judicial authorities without delay in cases where the whereabouts of the child are unknown.

How Is a Return Order Executed?

According to the current version of Article 18 of Law No. 5717, rulings regarding the return of the child or the establishment of personal relations pursuant to the provisions of the Fourth Part of the Child Protection Law No. 5395 are executed without serving a delivery order.

Judicial Support and Victim Services Directorate Offices are tasked with enforcing decisions regarding the handover of children and personal contact with children. The Ministry of Justice Judicial Support and Victim Services page provides up-to-date information regarding this system.

Frequently Asked Questions

Can I request the return of my child to Turkey if the child is a foreign national?

Yes, foreign citizenship alone does not constitute an obstacle to an extradition request. Under the Hague Convention, the primary connecting factor is the habitual residence of the child immediately before the wrongful removal or retention, rather than the child's citizenship.

Regarding family disputes involving foreign elements, you may also refer to the article titled Divorce of Foreign Nationals in Turkey .

Does the return request terminate if the foreign parent obtains a custody order in their own country?

No. Pursuant to Article 17 of the Hague Convention, the existence of a custody order issued in the requested State is not, in itself, sufficient to refuse the return. Similarly, Article 13 of Law No. 5717 stipulates for Turkey that a custody order rendered after the application for return does not constitute grounds for refusing the return request.

Does a return order also grant me custody?

No. The return process and the custody lawsuit are distinct from one another. Pursuant to Article 12 of Law No. 5717, when a return order is issued, a custody ruling is not concurrently rendered within that provision.

If I missed the one-year period, can I no longer apply?

No. One year is not a statute of limitations (peremptory time limit). A return request is also possible after one year. However, whether the child has settled into their new environment may additionally come into question pursuant to Article 12 of the Convention.

Is the child's objection to being returned sufficient on its own?

Not in every case. The court assesses whether the child objects to the return and whether they have attained the age and level of maturity that would warrant taking their views into consideration. There is no fixed age limit prescribed in the legislation for this purpose.

What can I do if I do not know which country the child is in?

The Central Authority process and law enforcement agencies can be simultaneously important. An INTERPOL Yellow Notice is also one of the law enforcement mechanisms that, if conditions are met, assists in locating missing and parentally abducted children.

Which court has jurisdiction if a child is abducted from a foreign country to Turkey?

Pursuant to Article 6 of Law No. 5717, the Family Court has jurisdiction. The competent court is determined by taking into consideration the residence of the child at the time of the application or the place where the child is placed under protection pursuant to Article 10 of the Law.

Conclusion

In international child abduction disputes, rather than nationality, the habitual residence, the scope of custody rights, the actual exercise of such rights, the date of the removal or retention, and the applicability of the Hague Convention between the states concerned are decisive.

Although the one-year period is not a statute of limitations (time bar), delay may give rise to the claim that the child has settled into their new environment and may complicate the collection of evidence. Therefore, it is important to evaluate legal remedies without delay after learning that the child has been removed to another country or has not been returned.

In cases involving foreign-element family disputes where custody and private international law issues must be evaluated together, immigration law, family and divorce law and the effect of foreign court judgments in Turkey may arise within the same dispute.