A. GUARDIANSHIP

           Custody is the rights that the parents have over the child in order to ensure the care and protection of the child who is under the custody of the parents.1 The right of custody covers the rights that the parents have over the minor children, provided that there is a genealogical relationship between them. Article 335 of the Turkish Civil Code stipulates that, as an exception, adult children may also be under the custody of their parents.2

      During the marriage, the right of custody over the children is exercised jointly by the mother and the father. With a divorce decree, the judge makes a decision on the custody of the children ex officio. The judge makes an assessment by taking into account the best interests of the child.

       In the event that a new child is born after the divorce decision rendered against the parties, a separate lawsuit must be filed for the custody of this child.3 According to Article 183 of the Turkish Civil Code, in cases where the mother or father marries someone else, moves to another place, or dies, it may be requested to remove or change the custody. In such cases, custody does not automatically pass to the other party. The judge may decide to change or remove the custody ex officio, and the parties may also request the change or removal of the custody.4

B. THE CONCEPT OF “BEST INTEREST OF THE CHILD”

         When deciding on the issue of custody, it is decided to whom it is more appropriate to award custody by evaluating who will provide better conditions for the care and education of the child in accordance with the best interests of the child rather than the economic or social conditions of the parties.5

         The concept of the best interests of the child is accepted as a criterion that should be taken as a basis in all proceedings and cases concerning the child. The legislative body, social service institutions, health institutions, education boards and other institutions authorized and responsible for the protection of the child, i.e. the executive body, courts and other judicial authorities are obliged to observe the best interests of the child in transactions and cases concerning the child. Since the child ceased to be an object subject to custody and became a subject to be protected and whose rights should be respected, the concern to protect the best interest of the child has manifested itself in societies and laws. The concept of the best interest of the child has emerged as a concept that aims to draw the boundaries of custody.

          The best interests of the child, as established in the doctrine and international legal texts, is a concept that is fundamental in terms of children’s rights and serves as a guide in many disputes. At the same time, it is a norm that commands that whatever is necessary for the well-being and welfare of the child should be done. Pursuant to this norm, the best interests of the child must be considered in all matters concerning the child. This obligation is based on international conventions, particularly the United Nations Convention on the Rights of the Child, and the provisions of national legislation. The principle of the best interest of the child is also mentioned in the Child Protection Law No. 5395 and the European Convention on the Protection of the Rights of the Child.

            Article 3 of the United Nations Convention on the Rights of the Child points to the principle of the best interests of the child by stating that “The best interests of the child shall be the primary consideration in all activities concerning children undertaken by public or private social welfare organizations, courts, administrative authorities or legislative bodies.”6

              In Turkish law, Article 317 of the TCC states “…if the interest of the minor will not be seriously harmed as a result of this…”, Article 325 states “…to the extent that it is in the best interest of the child…”, Article 324 states “…if the peace of the child is endangered…”, Article 337 states “…according to the best interest of the child…”, Article 339 states “…taking into account the interest of the child…”, Article 346 states “…if the peace of the child is endangered…”.”, in Article 337 “…in the best interests of the child…”, in Article 339 “…taking into account the best interests of the child…”, in Article 346 “…if the best interests and development of the child are jeopardized…” refer to the concept of the best interests of the child.7

C. SOCIAL INVESTIGATION REPORT

              A Social Investigation Report (SIR) is a report prepared by experts in the field and provides an opinion on who should be given custody of the child, taking into account the best interests of the child. It is a method used both in divorce cases and in cases on custody and personal relationship establishment to determine to whom the custody of the joint child will be given.

              As stated in the decision of the 2nd Civil Chamber of the Court of Cassation No. 2021/10606 Main, 2022/1746 Decision, dated 24/02/2022, “An examination and report should be requested from the experts consisting of psychologists, pedagogues and social workers within the family court, by interviewing both parents and the child; It is necessary to investigate whether there is an obstacle to assume custody for the healthy development of the child, and to make a decision on custody by determining which of the parents will be in the best interest of the child or children.” It should not be forgotten that Social Investigation Reports alone cannot be taken as a basis for the judgment.(8) The only issue that binds the judge is the best interest of the child.9 Therefore, Social Investigation Reports are an important element that will affect the judge’s conviction.

             The Social Investigation Report is issued by the Court decision in divorce cases with a request for custody and in cases related to custody. Since the change of custody is among the non-contentious judicial affairs, the principle of ex officio investigation is valid according to Article 285/2 of the Code of Civil Procedure. Since the principle of ex officio investigation is valid in cases considered to be of public order as required by the best interests of the child, the Judge may decide to issue a Social Investigation Report ex officio even if the parties do not rely on the evidence of the Social Investigation Report.10 The Judge may decide to issue a Social Investigation Report regarding the case in dispute at the preliminary examination stage with the end of the exchange of petitions, or may decide to issue a Social Investigation Report in the preliminary proceedings report by establishing an interim decision.

              Article 5 of the Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts titled “Utilization of Experts” defines the Social Investigation Experts to be assigned to Family Courts and specifies their duties. Pursuant to the relevant article, Family Courts preferably benefit from psychologists, pedagogues and social workers assigned by the Ministry of Justice among those who are married, have children, are over the age of thirty and have postgraduate education in the field of family problems. Therefore, Social Investigation Reports are issued by the Court by utilizing the psychologists, pedagogues and social workers assigned by the Ministry of Justice in the courthouses. If the Judge requests a Social Investigation Report to be prepared, the Social Investigation Expert prepares the report by interviewing the parties, relatives, the child, teachers and officials in the institution where the child is educated, and all persons deemed necessary, depending on the type of the case. During the court process, interviews are conducted in the courthouse or in the homes of the parties depending on the type of case and the person to be interviewed. After being assigned by the Court, the Social Investigation Specialist contacts the parties and determines the appropriate day and time for the interview. A home visit is made by the Social Investigation Specialist at the appointed time. In custody cases, in order to determine the best interest of the child more accurately, the Social Investigation Specialist usually conducts interviews at the homes of the parties and prepares a report.11 If there is a security risk, the parties are called to the courthouse and interviews are held in the courthouse environment. While the Social Investigation Report is being prepared by the Social Investigation Specialist, not only determinations are included. In the report of the Social Investigation Specialist, they also explain their own opinions with justification..12 The Social Investigation Report shall be submitted to the Court by the Social Investigation Specialist. Contradictions or deficiencies in the Social Investigation Report, the Judge may decide to prepare a new report upon the request and objections of the parties or ex officio.

D. CONSIDERATIONS IN SOCIAL INVESTIGATION REPORTS

           While preparing the social investigation report, the report is issued by the experts by considering the best interests of the child. The issues to be considered by experts at this stage are as follows:

1. The SIR report includes information about the personal characteristics of the

   • Name, surname, age, place and date of birth of the party, information about the relationship with the joint child,

   • Whether the party married or not, whether they currently seeing someone,

   • Whether the party has another child, if the party has another child, the name, surname, age, place and date of birth of the child, his/her relationship with the joint child, where he/she resides, his/her education, his/her relationship with his/her siblings, his/her relationship with the joint child, his/her relationship with the party,

   • The way the party dresses,

   • Personal care of the party,

   • The party’s behavior to the Social Investigator,

   • How the party is recognized by the people around them,

   • The manner and demeanor of the party during the meeting with the Social way he/she identifies and expresses himself/herself,

2. The SIR report includes information about the financial situation of the

   • Whether the party employed, whether has a permanent job, if so, where he/she works, between which hours he/she works, which days he/she is on leave,

   • How much the party’s income , what its sources of income ,

   • Whether the party is insured

   • Who owns house where the party resides and will reside,

   • Whether the party pays rent for the house where the party resides,

   • Whether the party has any debts

   • Whether there are other dependents of the party,

   • Assets held in the party’s bank accounts,

   • Whether there is any real estate/ movable property on the party,

3. The SIR report includes information on the education levels of the

   • Information on the party’s primary, secondary, high school and university education, his/her level of success in school, if he/she interrupted his/her education, for what reason he/she interrupted his/her education, and when he/she plans to continue his/her education,

   • Information on the education that the party is currently receiving,

   • Whether the party has any expertise,

   • Training certificates, certificates of participation, certificates of expertise held by the party,

4. The SIR report includes information about the health status of the

   • Whether the party has a chronic illness,

   • Whether the party is taking any medication,

   • Whether the party has previously diagnosed, ongoing or terminated condition, and if so, by whom the treatment was terminated,

   • Psychological behavior of the party when meeting with the Social Investigating Specialist, even if not diagnosed,

   • Whether the party has undergone any surgery,

   • Whether the party has a contagious disease,

   • Whether the party has any physical or mental disability, whether the party uses prostheses,

5. The SIR report includes information on whether there are any enforcement criminal lawsuit files on the parties and the persons with whom the parties live.

   • Whether the party has any enforcement file, if so, which party is involved, and what the subject matter is,

   • Whether the party has any case file, if so, in which party, and what the subject matter is,

   • Whether the party is in any investigation file or criminal case, and if so, in which party capacity, and what the subject matter is,

   • Whether the party has a criminal record,

6. About the real properties where the parties reside and declare that they will reside in the SIR report

   • The address of the real properties, (If there is a protection order against the party within the scope of Law 6284, the address information of the real property should not be provided)

   • Who owns real property, whether rent paid, the cost of rent, whether there is a plan to change the residence address,

   • Whether the real property benefits from municipal services,

   • Socio/economic status of the region where the real property is located,

   • The number of rooms of the real property, whether the persons residing in the real property have a private area of their own, the maintenance status of the real property, whether it needs renovation, whether there is a minimum level of tools and equipment necessary for daily life in the real property,

   • Whether the necessary measures have been taken for the safety of the child in the real property, taking into account the age of the joint child,

   • Whether the child has a room of his/her own within the real property, and if the child has a room of his/her own, whether the child’s personal belongings (clothes, toys, educational tools and grounds, bed, etc.) are included in it,

   • Who else resides or will reside in the real property

   • How heating takes place in the real property,

   • Whether there is enough food in the kitchen cupboard,

   • Whether the interior of the real property clean and organized,

   • Whether alcohol or tobacco products or any harmful are present in the real property,

   • Whether there are any objects in the real property that may adversely affect the psychological development of the child,

7. The SIR report includes information on whether the parties have alcohol, tobacco or harmful habits.

8. The SIR report includes information on whether the parties have any plans for the future regarding the child’s development.

• • Whether the parties can support the joint child with any education, courses, habits,

  • Whether the parties can direct the joint child to sports,

  • How the parties will support the joint child in the face of possible failures in his/her education,

  • Whether the parties can contribute to the language education of the joint child,

  • How the parties contribute to the cultural development of the joint child,

9. The SIR report includes the child’s current physical and psychological

   • How old the joint child is,

   • Whether the joint child can express himself or herself,

   • Whether the joint child has any mental or physical disability, and if so, by whom the child has been cared for until now,

   • Whether the physical characteristics of the joint child age-appropriate, and if not, what is the reason,

   • Whether the mental characteristics of the joint child age-appropriate, and if not, what is the reason,

   • whether the joint child has any illness, whether he/she is taking any medication,

   • With whom the joint child and where/what education he/she received during the period of the lawsuit,

         issues must be included in the Social Investigation Report. While preparing the Social Investigation Report, Social Investigation Specialist will not only make determinations, but will include his/her own opinion on the situations that may occur if the custody is given to the person examined by evaluating these criteria.

             In custody cases, where domestic law recognizes that the child has the capacity to understand, the views of the child with the capacity be taken into account in accordance with Article 12 of the Convention on the Rights of the Child and Articles 3 and 6 of the European Convention on the Exercise of the Rights of the Child. The opinions of the child should be given importance by the Court to the extent that they do not contradict the interests of the child. Establishing a judgment without consulting the opinions of the children of cognitive age and without obtaining the Social Investigation Report by the Court requires reversal on the grounds of incomplete examination in accordance with the established Court of Appeal decisions.(13)

          It is possible for the parties to object to the Social Investigation Reports as of the notification of the Social Investigation Reports issued by the experts. Objections can be made about the contradictory situations and unfavorable issues in the Social Investigation Report, provided that they are in accordance with the procedure and in due time.

CONCLUSION

            Custody is the rights that the parents have over the child in order to ensure the care and protection of the child under their custody. With the divorce of the parents, the problem of who will have custody of the child arises. In Turkish Law, the judge is given a wide discretionary power regarding the custody of the child. The judge will make an assessment in accordance with the best interests of the child regarding to whom the custody will be given. The judge may, ex officio or upon request, decide to prepare a Social Investigation Report at every stage of the proceedings. Social Investigation Specialists prepare and submit the Social Investigation Report to the Court by making determinations on issues such as the personal characteristics of the parties, their financial situation, their level of education, health problems, whether there are any criminal, enforcement, civil cases, whether they have harmful habits, the physical condition of the real property and its suitability for the child. The Social Investigation Report submitted to the Court is notified to the parties and the parties have the right to object to this Social Investigation Report. The judge may decide in accordance with the Social Investigation Report by using his/her discretionary power, or he/she may decide otherwise by explaining his/her reasoning. In cases where the recognizes that the child has the capacity to comprehend, the Court must also consult the views of the child. Otherwise, the judgment established on the grounds of incomplete examination will be overturned by the Court of Appeal. If there is a contradiction between the Social Investigation Report and the statements of the child or if the Social Investigation Reports contain inaccuracies, the Judge may decide to prepare a new Social Investigation Report upon request or ex officio. The Judge is not bound by the Social Investigation Report submitted to the Court, but in divorce cases with a request for custody or personal relationship, it forms the opinion of the Judge about the person to whom custody will be left or the establishment of personal relationship. Since it is the strongest evidence that will affect the Judge’s opinion at the trial stage, it is important that the Social Investigation Reports are carefully prepared by experts and that the parties make statements against the Social Investigation Reports in order to clarify the missing or incorrect issues. Although a decision is made by the courts by considering the best interest of the child, it is necessary to act diligently to observe the best interest of the child at the trial stage and to expedite the proceedings within the framework of procedural economy. However, considering the recent statistical increase in the number of divorce cases and the resulting number of cases on custody, it is determined that the workload of the Courts has increased at the same rate. The interests of the child are harmed due to the fact that the Social Investigation Reports, which are the justification of the decision made by the judges custody, are decided to be issued at different stages of the proceedings and there is no consensus in practice on this issue. As such, it becomes obligatory for the Courts decide on the immediate issuance of the Social Investigation Reports by considering the best interests of the child in the custody cases. We are of the opinion that it is appropriate for plaintiff to pay the evidence fee to be used in the preparation of the Social Investigation Reports as well as the lawsuit fee. In this way, the Courts will be able to appoint a Social Investigator by deciding to prepare the Social Investigation Report with the evidence fee deposited while the case is substituted without giving the plaintiff time to deposit the evidence fee together with the Preliminary Proceeding Report. However, due to the lack of any regulation or consensus in practice regarding the examination made by the Specialists as a basis for the Social Investigation Reports, Social Investigation Reports may be issued with inaccuracies or deficiencies, and for this reason, the parties object to the reports and request a decision to issue a new report.

             In order the Social Investigation Reports are of a quality that can be taken as a basis for the judgment, Regulations will be issued and a consensus will be achieved regarding the mandatory elements that must be included in the Social Investigation Reports, the powers of the Social Investigation Experts, and the areas/information/documents that can be examined. We are of the opinion that this step, which will ensure more effective use of the powers of Social Investigation Specialists and speed up the proceedings, will be more suitable for the benefit of the child in cases on custody.