JOINT CUSTODY IN THE CASE OF DIVORCE

According to the Article 336/III of Turkish Civil Code, in the case of divorce, the custody belongs “to the party who is given the custody”. This provision is interpreted for a longtime as a proof for the impossibility of joint custody in the case of divorce in Turkish law. However, after a while, in many countries legal revisions that allow for the joint custody have been done and in many international treaties the principle that the parents should have equal rights and obligations towards their child even after the divorce has been adopted. These developments caused the discussion about the possibility of the joint custody in the case of divorce in Turkish law. It is controversial whether the wording of the Article 336/III of Turkish Civil Code is clear, whether this provision is mandatory and appropriate, whether there is a lacuna in this provision. The Court of Appeals has begun to recognize the foreign judgements that award joint custody after the divorce in its latest jurisprudence. The legislator should revise the Article 336/III of Turkish Civil Code which regulates the problem of custody after divorce by taking the international treaties signed by Turkey and the principle of the best interests of the child into consideration. The legislator should allow for the joint custody after divorce in cases where the interest of the child requires this solution