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Turkey Türk Medeni Kanunu — Velayet ve Kişisel İlişki (Verbatim)

TL;DR

Turkey's Türk Medeni Kanunu (Turkish Civil Code, Law No. 4721 of 22 November 2001, in force 1 January 2002) governs family law in Book Two, Part Two (Soybağı ve Velayet Hükümleri — Provisions on Descent and Custody), arts. 282 – 351. The child-parent contact regime sits in arts. 323 – 324 (kişisel ilişki kurma hakkı — right to establish personal relationship), and the substantive parental-authority regime sits in arts. 335 – 346 (velayet). Four provisions carry the operational anti-alienation weight: art. 323 (parent not vested with velayet, and the child, both hold the personal-relationship right); art. 324(1) (the residential/velayet parent may not obstruct the personal relationship and shall not harm the child's peace nor obstruct the child's education); art. 336 (velayet during marriage is joint; on divorce, the court entrusts velayet to one of the parents or, following the 2017 – 2023 doctrinal shift, to both jointly — ortak velayet); art. 346 (protective measures where velayet is exercised contrary to the child's interests). The Turkish text below is the consolidated version at mevzuat.gov.tr; the English is a working translation for research use. The Turkish original controls.

Ortak Velayet — the 2017 – 2023 Doctrinal Shift

TMK art. 336 does not textually provide for ortak velayet (joint custody) after divorce. For its first fifteen years the article was read as requiring single-parent velayet post-divorce. Beginning with Yargıtay 2. Hukuk Dairesi decision 2016/15771 E., 2017/1737 K. of 20 February 2017, the Turkish Court of Cassation recognised ortak velayet as available where it is in the child's best interests, on the basis of the direct effect of ECHR Protocol No. 7, art. 5 (equality of spouses) — ratified by Turkey on 6 April 2016 and entering into force 1 August 2016. The line has been consolidated by subsequent 2. HD decisions (2017 – 2023) and by the Yargıtay Hukuk Genel Kurulu (HGK) 2022/2-... K., which addressed ortak velayet in the framework of best-interests analysis and Protocol 7 art. 5 direct effect. Ortak velayet is therefore, as of the mid-2020s, a judicially available modality in Turkish practice notwithstanding the textual singular framing of art. 336. The verbatim below sets out the statutory text; the practical modality reads through the 2. HD/HGK line.

Statute — Verbatim Text

Art. 323 TMK — Kişisel ilişki (Personal relationship)

Turkish (consolidated text):

Ana ve babadan her biri, velâyeti altında bulunmayan veya kendisine bırakılmayan çocuk ile uygun kişisel ilişki kurulmasını isteme hakkına sahiptir.

English (working translation):

Each of the mother and the father shall have the right to request that an appropriate personal relationship be established with a child who is not under his or her velayet or has not been left with him or her.

Operational note: Art. 323 codifies the personal-relationship right of the parent who does not hold velayet. The Yargıtay reads the "uygun" (appropriate) modifier as substantive rather than restrictive: the court's task is to fix the relationship that is appropriate to the child's best interests, not to fix a minimalist relationship subject to expansion on demand. In practice this reads onto the art. 324(1) prohibition of obstruction as an anchor for expanded orders where the residential parent's pattern of obstruction has been documented.

Art. 324 TMK — Kişisel ilişkinin sınırları (Limits of the personal relationship)

Turkish:

(1) Ana ve babadan her biri, diğerinin çocuk ile kişisel ilişkisini zedelemekten, çocuğun eğitilmesi ve yetiştirilmesini engellemekten kaçınmakla yükümlüdür.

(2) Kişisel ilişki sebebiyle çocuğun huzuru tehlikeye girer veya ana ve baba bu haklarını birinci fıkrada öngörülen yükümlülüklerine aykırı olarak kullanırlar veya çocuk ile ciddî olarak ilgilenmezlerse ya da diğer önemli sebepler varsa, kişisel ilişki kurma hakkı reddedilebilir veya kendilerinden alınabilir.

English:

(1) Each of the mother and the father shall be under a duty to refrain from impairing the other's personal relationship with the child, and from obstructing the child's education and upbringing.

(2) Where by reason of the personal relationship the child's peace is endangered, or where the mother and father use their rights contrary to the duties provided for in paragraph 1, or where they do not seriously concern themselves with the child, or where there are other important grounds, the right to establish the personal relationship may be refused or taken away from them.

Operational note: Article 324 is the operational anti-alienation core of the Turkish scheme. Two features:

  • Art. 324(1) — the residential/velayet parent has a positive duty of non-impairment toward the other parent's personal relationship AND a positive duty of non-obstruction of the child's education and upbringing. The "zedelemek" (impair, damage) verb is textually broader than "obstruct" — it catches conduct that reduces or degrades the quality of the relationship without formally denying contact. Denigration campaigns, information starvation, and scheduling gate-keeping all fall within the ambit.
  • Art. 324(2) — the personal-relationship right of a parent who abuses that right can be taken away (alınabilir) as a proportional sanction. But the same paragraph applies symmetrically: the residential parent who exercises velayet contrary to the art. 324(1) duty is exercising velayet against the child's peace and can be subjected to the art. 346 protective-measures regime.

Art. 335 TMK — Velayetin kapsamı (Scope of velayet)

Turkish:

(1) Ergin olmayan çocuk, ana ve babasının velâyeti altındadır. Yasal sebep olmadıkça velâyet ana ve babadan alınamaz.

(2) Hâkim vasi atanmasına gerek görmedikçe, kısıtlanan ergin çocuklar da ana ve babanın velâyeti altında kalırlar.

English:

(1) A child who has not attained majority shall be under the velayet of the mother and the father. Save on a legal ground, velayet may not be taken from the mother and the father.

(2) Adult children who are placed under restriction shall likewise remain under the velayet of the mother and the father, unless the judge sees a need to appoint a guardian.

Operational note: Art. 335(1) sentence 2 is the statutory anchor: velayet may not be taken from the parents save on a legal ground. Removal is exceptional and requires an affirmative statutory basis. This limits the field within which "sole velayet after divorce" (art. 336(3)) operates and provides the doctrinal footing for the 2017 – 2023 ortak-velayet line — since Protocol 7 art. 5 is a legal ground for equality of spouses in the exercise of parental responsibility, and art. 335(1) prohibits removal except on a legal ground, a rigid single-parent designation post-divorce sits in tension with the Protocol 7 baseline.

Art. 336 TMK — Evlilik devam ederken ve boşanmada velayet (Velayet during the marriage and on divorce)

Turkish (consolidated text):

(1) Evlilik devam ettiği sürece ana ve baba velâyeti birlikte kullanırlar.

(2) Ortak hayata son verilmiş veya ayrılık hâli gerçekleşmişse hâkim, velâyeti eşlerden birine verebilir.

(3) Velâyet, ana ve babadan birinin ölümü hâlinde sağ kalana, boşanmada ise çocuk kendisine bırakılan tarafa aittir.

English:

(1) So long as the marriage continues, the mother and the father shall exercise velayet jointly.

(2) Where common life has been ended or a state of separation has arisen, the judge may entrust velayet to one of the spouses.

(3) On the death of one of the mother and the father, velayet shall belong to the survivor; on divorce, velayet shall belong to the parent to whom the child has been left.

Operational note: Art. 336(1) codifies the joint-exercise default during marriage. Art. 336(2) grants the trial judge discretion to entrust velayet to one spouse where common life has ended or separation has arisen. Art. 336(3) is the textual anchor for the traditional "single-parent-post-divorce" reading. Since 2017, however, this reading is qualified: 2. HD reads art. 336(3) together with art. 335(1) and Protocol 7 art. 5 to permit ortak velayet where consistent with the child's best interests. In pleading practice, an application for ortak velayet is framed as an art. 336(3)-plus-Protocol-7-art.-5 application; opposition is framed as an art. 336(3) singular-reading application.

Art. 337 TMK — Evlilik dışı doğan çocukların velayeti (Velayet over children born out of wedlock)

Turkish:

(1) Ana ve baba evli değilse velâyet anaya aittir.

(2) Ana küçük, kısıtlı veya ölmüş ya da velâyet kendisinden alınmışsa hâkim, çocuğun menfaatine göre, vasi atar veya velâyeti babaya verir.

English:

(1) Where the mother and the father are not married, velayet shall belong to the mother.

(2) Where the mother is a minor, is placed under restriction or has died, or where velayet has been taken from her, the judge shall, having regard to the child's interest, appoint a guardian or entrust velayet to the father.

Operational note: Art. 337(1) is the default rule for out-of-wedlock children — velayet belongs to the mother by operation of law. Art. 337(2) provides the residual court-transfer jurisdiction. The father who has not been granted velayet under art. 337 retains the art. 323 personal-relationship right and the art. 324 non-impairment protection. In pleading practice out-of-wedlock fathers seeking expanded rights work through art. 323 (personal relationship) rather than art. 337 (which sets a high threshold for transfer to the father).

Art. 339 TMK — Velayetin kullanılması (Exercise of velayet)

Turkish (extracts):

(1) Ana ve baba, çocuğun bakım ve eğitimi konusunda onun menfaatini göz önünde tutarak gerekli kararları alır ve uygularlar.

(2) Çocuk, ana ve babasının sözünü dinlemekle yükümlüdür.

(3) Ana ve baba, olgunluğu ölçüsünde çocuğa hayatını düzenleme olanağı tanırlar; önemli konularda olabildiğince onun düşüncesini göz önünde tutarlar.

(4) Çocuk, ana ve babasının rızası dışında evi terkedemez ve yasal sebep olmaksızın onlardan alınamaz.

English:

(1) The mother and the father shall, having regard to the child's interest, take and apply the decisions necessary in respect of the child's care and education.

(2) The child shall be under a duty to obey the mother and the father.

(3) The mother and the father shall, to the extent of the child's maturity, give the child the opportunity to arrange the child's life; on important matters they shall as far as possible have regard to the child's views.

(4) The child shall not, without the consent of the mother and the father, leave the home and shall not, save on a legal ground, be taken from them.

Operational note: Art. 339(1) is the substantive standard for the exercise of velayet — decisions must be taken "having regard to the child's interest" (menfaatini göz önünde tutarak). Art. 339(3) codifies the child's participation right graduated by maturity. Art. 339(4) is the anti-abduction sentence — the child cannot be taken from the parents save on a legal ground — which reads onto the Hague 1980 cross-border architecture and onto the domestic art. 346 protective measures.

Art. 342 TMK — Çocuğun temsili (Representation of the child)

Turkish:

(1) Ana ve baba, velâyetleri altındaki çocuğun yasal temsilcisidirler.

(2) İyiniyetli üçüncü kişiler, eşlerden her birinin diğerinin rızasıyla işlem yaptığını varsayabilirler.

(3) Vesayet makamlarının iznine bağlı hususlar dışında kısıtlıların temsiline ilişkin hükümler velâyetteki temsilde de uygulanır.

English:

(1) The mother and the father shall be the legal representatives of the child who is under their velayet.

(2) Good-faith third parties may assume that either of the spouses is acting with the consent of the other.

(3) Save in matters requiring the authorisation of the guardianship authorities, the provisions concerning the representation of persons under restriction shall also apply to representation in velayet.

Operational note: Art. 342(1) makes both parents legal representatives where velayet is joint. Art. 342(2) is the third-party-good-faith presumption: a school, health service, or bank may act on either parent's instruction, but only bona fide. Where the third party has notice of a lack of consent from the other parent, the good-faith presumption does not apply and the third party acts at its own risk. In pleading practice this generates a distinct cause of action against third parties who continue to act on the residential parent's sole instruction after formal notice from the non-residential parent.

Art. 346 TMK — Çocuğun korunması (Protection of the child)

Turkish:

Çocuğun menfaati ve gelişmesi tehlikeye düştüğü takdirde, ana ve baba duruma çare bulamaz veya buna güçleri yetmezse hâkim, çocuğun korunması için uygun önlemleri alır.

English:

Where the interest and development of the child are endangered, and the mother and the father do not find a remedy or their strength does not suffice for this, the judge shall take appropriate measures for the protection of the child.

Operational note: Art. 346 is the general protective-measures jurisdiction. In alienation practice its principal use is where the residential parent's exercise of velayet is itself the source of the endangerment — obstruction that produces developmental harm to the child. The 2. HD line reads art. 346 broadly to include restructuring of the velayet regime (limitation, transfer, ortak velayet on court order) as a "protective measure" where the exercising parent's conduct endangers the child's development.

Art. 4787 sayılı Ailenin Korunması ve Kadına Karşı Şiddetin Önlenmesine Dair Kanun — Protection Framework Note

Turkey's framework Law No. 6284 (Ailenin Korunması ve Kadına Karşı Şiddetin Önlenmesine Dair Kanun, 2012) operates alongside the TMK and provides the protective-order infrastructure for family-court proceedings. In alienation practice the interaction between Law 6284 protective orders and TMK velayet/kişisel ilişki decisions is a substantive issue: Law 6284 orders are protective and can operate as a provisional limitation on the personal-relationship right under TMK 324(2), but they are not a substitute for a substantive velayet decision and are subject to periodic review.

Structural Reading

Seven moving parts:

  1. Art. 335(1) — Velayet may not be taken from parents save on a legal ground; the removal power is exceptional.
  2. Art. 336(1) — Joint exercise during marriage.
  3. Art. 336(2)–(3) — On separation or divorce, judge may entrust velayet to one spouse; traditional single-parent reading has been qualified since 2017 by 2. HD/HGK line recognising ortak velayet on Protocol 7 art. 5 direct effect.
  4. Art. 337 — Out-of-wedlock children: velayet to mother by default; court-transfer jurisdiction to father.
  5. Art. 339 — Substantive standard for exercise (child's interest); child's participation right graduated by maturity; anti-abduction sentence (339(4)).
  6. Arts. 323 – 324 — Personal-relationship right of the non-velayet parent; residential/velayet parent's positive duty of non-impairment; loss of personal-relationship right for abuse under 324(2).
  7. Art. 346 — General protective-measures jurisdiction, used where the residential parent's exercise of velayet is itself the source of endangerment.

Two distinguishing features of the Turkish scheme:

  • The "zedelemek" (impair) verb of art. 324(1). Textually broader than "obstruct". Catches degradation of the relationship without formal contact denial: denigration, information starvation, scheduling gate-keeping. In comparative terms this is the closest textual analogue to Estonia's § 143(2) ("acts which harm the relations").
  • Ortak velayet via Protocol 7 art. 5 direct effect (2017 – 2023 doctrinal shift). Turkey now has ortak velayet as a judicially available modality notwithstanding the singular textual framing of art. 336(3). The pleading route is through Protocol 7 art. 5 combined with art. 335(1) and best-interests analysis under art. 339(1).

Yargıtay (Court of Cassation) — Interpretive Line

The Yargıtay 2. Hukuk Dairesi (2. Civil Chamber) has jurisdiction over family-law matters at cassation. Case-identifiers are in the format E. YYYY/NNNNN K. YYYY/NNNNN (E. = Esas, K. = Karar). Doctrinal points on velayet and kişisel ilişki:

  • 2. HD 2016/15771 E., 2017/1737 K. (20 February 2017) — The foundational decision recognising ortak velayet on Protocol 7 art. 5 direct effect. Subsequent decisions consolidate the reasoning.
  • Art. 324(1) "zedelemek" as an operational duty. The 2. HD reads the non-impairment duty as extending to conduct that degrades the quality of the relationship, not merely conduct that formally denies contact.
  • Art. 336(2)–(3) best-interests requirement. Trial courts must reason the velayet assignment substantively; where evidence of obstruction under art. 324(1) is documented, the trial court must engage that evidence.
  • Art. 346 as restructuring jurisdiction. Where the residential parent's exercise of velayet endangers the child's development, art. 346 supports restructuring — limitation, transfer, or the imposition of ortak velayet on court order.
  • Child's expressed refusal and induced influence. Under art. 339(3) the child's views are considered on important matters; the 2. HD requires trial courts to assess whether an expressed refusal reflects the child's own view or is a product of induced influence, especially where the residential parent's pattern of obstruction is documented.

Anayasa Mahkemesi (Constitutional Court) — Framing

The Anayasa Mahkemesi (Constitutional Court of Turkey) exercises both abstract review and, since the 2012 individual-application reform, individual-complaint jurisdiction. Individual applications alleging violation of the right to family life (Anayasa art. 20) and the protection of the child (Anayasa art. 41) generate a growing body of parallel-obligations jurisprudence. The framing tracks the wider European pattern: formally correct contact orders that are not enforced do not discharge the State's obligation. Effectiveness of enforcement is a constitutional as well as a Convention requirement.

ECHR Application to Turkey

Turkey is a party to the ECHR (ratified 1954) and to Protocol No. 7 (ratified 6 April 2016, in force 1 August 2016). Protocol 7 art. 5 (equality of spouses) is the direct-effect anchor for the 2. HD ortak-velayet line. Relevant Article 8 jurisprudence for alienation practice:

  • Onur v Turkey (2011) — Article 8 violation in a contact-enforcement context; foundational Turkish contact-enforcement decision.
  • Cengiz Kılıç v Turkey (2011) — Article 8 violation for prolonged failure to enforce a contact regime.
  • Karadağ v Turkey (2010) — Article 8 issue in a domestic contact context.
  • Süß v Germany (2005) and Neulinger and Shuruk v Switzerland [GC] (2010) — general positive-obligations line applied by Turkish courts as binding interpretive authority.

Cross-Border Framework

  • EU frameworks. Turkey is not an EU Member State; Brussels IIb does not apply to Turkey. In EU-forum proceedings involving Turkish nationals, Brussels IIb applies to the EU-forum decision and Turkey is treated as a third state.
  • Hague Convention on the Civil Aspects of International Child Abduction 1980 — Turkey is a party; central authority is the Adalet Bakanlığı Uluslararası Hukuk ve Dış İlişkiler Genel Müdürlüğü (General Directorate for International Law and Foreign Relations of the Ministry of Justice).
  • Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 — Turkey is a party.
  • Bilateral cooperation — Turkish diaspora concentrations in Germany (~3 million), the Netherlands (~500,000), France (~800,000), Austria (~350,000), Belgium (~250,000), Switzerland (~130,000), the United States, the United Kingdom. Cross-border alienation practice involving Turkish nationals is one of the highest-volume streams in European family courts, particularly in Germany (BGB §§ 1626/1684 in interaction with Turkish TMK arts. 336/323 – 324) and the Netherlands (BW Book 1 arts. 251/253 in interaction with Turkish TMK).

Practical Application

Motion Language (Turkish, statute-anchored)

"Davalı, Türk Medeni Kanunu 324. maddesinin 1. fıkrasına aykırı olarak davacının çocuk ile kişisel ilişkisini sistematik olarak zedelemekte ve çocuğun eğitilmesini ve yetiştirilmesini engellemektedir. Bu tutum, TMK 346. maddesi anlamında çocuğun menfaatini ve gelişmesini tehlikeye düşürmektedir. Davacı mahkemeden şunları talep eder: (i) TMK 323. maddesi uyarınca kişisel ilişki kurma hakkının uygun şekilde ve genişletilmiş kapsamda düzenlenmesi; (ii) TMK 324. maddesinin 1. fıkrasına aykırı davranışlar için TMK 346. maddesi çerçevesinde koruyucu tedbirlerin alınması; (iii) gerekli görüldüğü takdirde, Ek 7 No.lu Protokolün 5. maddesi ve Yargıtay 2. HD 2016/15771 E. 2017/1737 K. sayılı kararında somutlaşan içtihat doğrultusunda ortak velayetin tesis edilmesi."

English (working translation for pleading-support purposes)

"The respondent, contrary to Turkish Civil Code art. 324(1), is systematically impairing the applicant's personal relationship with the child and is obstructing the child's education and upbringing. This conduct endangers the child's interest and development within the meaning of TMK art. 346. The applicant requests that the court: (i) regulate the right to establish the personal relationship under TMK art. 323 in an appropriate and expanded scope; (ii) take protective measures under TMK art. 346 in respect of conduct contrary to TMK art. 324(1); (iii) as necessary, establish ortak velayet on the basis of Protocol No. 7 art. 5 and the doctrine crystallised in Yargıtay 2. HD decision 2016/15771 E., 2017/1737 K."

Pleading Sequence

  1. Anchor the removal-exception rule via art. 335(1) — velayet cannot be reduced or restructured save on a legal ground.
  2. Document breach of art. 324(1) — the "zedelemek" (impair) verb catches degradation of the relationship without formal contact denial.
  3. Seek expanded regulation of the personal relationship under art. 323 ("uygun" as substantive, not restrictive).
  4. Where the residential parent's conduct endangers the child's development, invoke art. 346 protective-measures jurisdiction.
  5. Where appropriate, plead for ortak velayet on the basis of Protocol 7 art. 5 direct effect, combined with art. 335(1) and best-interests analysis under art. 339(1), citing the 2. HD 2016/15771 E., 2017/1737 K. line.
  6. Where third-party institutions (schools, health services, banks) are continuing to act on the residential parent's sole instruction after formal notice, plead the art. 342(2) limit on good-faith presumption.
  7. Anchor the Article 8 layer with Onur v Turkey (2011), Cengiz Kılıç v Turkey (2011), and the general positive-obligations line.

Cross-Border Layer

Where the family is displaced or one parent has removed the child cross-border:

  1. Preserve the Turkish order and file it in the EU forum via appropriate recognition-and-enforcement channels; note that Brussels IIb does not apply to Turkey and instead national recognition-and-enforcement law governs.
  2. Where unilateral cross-border removal has occurred, run Hague 1980 through the Adalet Bakanlığı central authority.
  3. In the receiving EU forum, plead the substantive Turkish order together with the ortak-velayet doctrine as evidence of the equality baseline in Turkish law post-2017.

Citing Posts on antialienate.com

Post URL
Turkey + Turkish diaspora PA guide https://antialienate.com/blog/turkey-turkish-diaspora-parental-alienation
Germany-Turkey cross-border PA https://antialienate.com/blog/germany-turkey-cross-border-parental-alienation
Netherlands-Turkey cross-border PA https://antialienate.com/blog/netherlands-turkey-cross-border-parental-alienation
Article 8 ECHR — the operational stack https://antialienate.com/blog/article-8-echr-parental-alienation
International custody battles — cross-border rights https://antialienate.com/blog/international-custody-battles-your-rights

Sources

By Alan Markson. Licensed under CC BY 4.0.

Disclaimer. This is a research summary of Turkish statute text with a working English translation. It is not legal advice, it is not an official translation, and it is not a substitute for a Turkish family-law avukat (aile hukuku alanında uzmanlaşmış avukat). The Turkish text at mevzuat.gov.tr is the authoritative source; where the working English rendering diverges from the Turkish original, the Turkish controls. Case-number identifiers in the Yargıtay and Anayasa Mahkemesi sections must be verified against the Yargıtay Karar Arama and the Anayasa Mahkemesi Kararlar Bilgi Bankası before pleading.