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An Example of Joint Custody in Turkish Law

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An Example of Joint Custody in Turkish Law sustainability Article The Role of Public Policy in the Enforcement of Foreign Custody Judgments: An Example of Joint Custody in Turkish Law Arzu Alibaba * and Emine Kocano Rodoslu Faculty of Law, Eastern Mediterranean University, 99628 Mersin 10, Turkey; [email protected] * Correspondence: [email protected]; Tel.: +90-548-861-9494; Fax: +90-392-365-4910 Received: 3 January 2020; Accepted: 5 March 2020; Published: 7 March 2020 Abstract: Societies transfer their basic values to new generations through child custody within the family. Therefore, bringing up children in healthy families is beneficial to society. Despite the importance of maintaining the sustainability of the family, which is the basic unit of society, when family sustainability is not possible, a basic duty of the courts must be to provide the best custody model for the welfare of the child after the dissolution of a marriage. Studies have shown that children have a better psychological state and can more easily overcome the trauma of divorce when the courts rule for joint custody than when the courts rule for sole custody. Joint custody, provided for in many legal systems, is not regulated in Turkish law. Thus, requests for the enforcement of foreign joint custody judgments are rejected by Turkish courts for violating public policy. Turkish courts incorrectly consider foreign law, which provides different rules, as grounds for public policy intervention. In this study, it is found that Turkish courts can rule for joint custody by depending on international conventions. Within this framework, it is not possible to reject the enforcement of foreign joint custody judgments by depending on the public policy exception. Keywords: the best interests of the child; joint custody; public policy; enforcement of foreign judgments; Turkish law 1. Introduction States exercise their sovereignty through their legal branches. The legislative branch makes laws, the executive branch applies these laws, and the judiciary resolves conflicts within the framework of these laws to protect the public order. These branches act in the name of the state’s sovereignty. For this reason, states do not allow other states’ legal institutions to intervene or participate in the functioning of their country’s legal branches [1–3]. Consequently, the judgments of courts have an effect only in the countries in which they are given [4–6] and cannot be enforced in other countries. It is not possible for the courts of a country to directly give instructions to the public officers of another country, i.e., the executive branch of a country does not function by depending on a judgment given in a foreign country [7,8]. When a judgment is obtained from a court, parties may wish the mentioned judgment to be recognized and/or enforced in a foreign country. The aim is to achieve transnational legal certainty and to avoid repeated litigation. This will also prevent expenses for re-litigation and would promote a stable and uniform international order [9]. Some perspectives suggest that with regard to the recognition of foreign judgments, a foreign forum may be considered more appropriate. Furthermore, recognizing foreign judgments may lead to “the implementation of a policy that does not make the plaintiff’s choice of forum depend on the availability of local enforcement” [10] (p. 972). Although this is the case, we cannot expect the judgments of one state’s courts to automatically have an effect in another state. Sustainability 2020, 12, 2060; doi:10.3390/su12052060 www.mdpi.com/journal/sustainability Sustainability 2020, 12, 2060 2 of 28 This is contrary to states’ sensitivity regarding their sovereignty [11]. Therefore, states use recognition and enforcement procedures to ensure that foreign judgments that will have the same force as their own judgments [10] are not the result of a deficient foreign procedure or that the outcome of the foreign judgment will not be objectionable [12]. In other words, if the requested court is convinced that a matter has been adequately decided by a foreign court and there is no need for further litigation, the foreign judgment can be recognized [10]. It should also be noted that states are not under an obligation to recognize or to enforce foreign judgments because of the principle of the equality of states [13]. It is possible to discuss two different effects of foreign judgments. With recognition, it is accepted that the foreign judgment presents a fact or has a conclusive effect [1,4,5,9,14–17]. In other words, “recognition of a judgment means treating the claim which was adjudicated as having been determined once and for all” [11] (p. 115). Recognition can also be expressed as a foreign judgment becoming legally valid in the country where it is recognized [18]. On the other hand, with the decision of enforcement (exequatur), the successful plaintiff enforces his judgment in another country. Enforcement can also be defined as “...a procedure securing the enforceability of a foreign court judgment as if it is a judicial decision given by the courts of the country undertaking the enforcement action” [19] (p. 57). It should be noted that foreign judgments that require the defendant to give something (dare), to do something (facere), or not to do something (nonfacere) require a judgment of enforcement, while foreign judgments that show the existence or nonexistence of a right or a legal relationship only require recognition. It is also possible to say that foreign judgments on the creation of a new legal situation or a change of content to or termination of an existing legal situation require recognition [8]. In a globalized world, persons and assets can easily move from one country to another, which makes the law of the recognition and enforcement of judgments more important. With the growing importance of recognition and enforcement, the number of bilateral and multilateral treaties regarding recognition and enforcement has increased. With the increase in the number of child abductions and to protect the best interests of the child, efforts regarding the recognition and enforcement of foreign judgments on custody have also increased. Nevertheless, it should be emphasized that conventional law and domestic laws provide different rules regarding recognition and enforcement. Exceptions to the recognition and enforcement of foreign judgments are narrowly interpreted in treaties, so a more liberal tendency can be observed. In contrast to treaties, states rely significantly on public policy exceptions when they believe that a foreign judgment is incompatible with domestic law [12]. Statistics indicate an increase of divorce rate in Turkey which will be 1.93 per thousand in 2023 [20] (p. 45) that is believed to be a social problem. Unfortunately children are the victims of the whole divorce process. Studies have shown that children have a better psychological state and can more easily overcome the trauma of divorce when the courts rule for joint custody than when the courts rule for sole custody. In the Turkish Civil Code (TCC) there is no provision regarding joint custody and this leads to discussions whether it is possible for Turkish Courts to rule for joint custody. On the other hand, as rules regarding custody are mandatory, the Turkish Court of Cassation rejected to rule for enforcement of foreign joint custody judgments by depending on public policy exception. If it serves for the best interests of the child, joint custody may not only beneficial to children and parents, but also decrease the number of international child abductions and human rights violations. The aim of this study is to show that to rule for joint custody under Turkish legal system is possible and foreign joint custody judgments can be recognized as long as the best interests of child are taken into consideration. It should be noted that oral and/or physical violence is a frequently observed ground for divorce in Turkey. In a research made by Aktas 69.3% of woman declared oral and/or physical violence as a ground for their divorce [21] (p. 55). That is why Turkish courts should pay great attention while deciding the model of custody. For this reason it is suggested that instead of amending the TCC in a way regulating either sole custody or joint custody as a principle and the other as an exception, right of discretion must be given to judge to choose the best for children. Sustainability 2020, 12, 2060 3 of 28 In this study, how the public policy exception is regulated in international law with regard to custody judgments is analyzed. Within this framework, special attention is given to the concept of public policy in private international law. The conditions required for the enforcement of foreign judgments under Turkish law are also discussed. Because the main concern of this paper is to examine foreign joint custody judgments, this study examines the concepts of custody and joint custody, how custody is regulated under Turkish law, including international conventions on joint custody in cases of divorce and the principle of the best interests of the child. Finally, this paper discusses whether foreign joint custody judgments violate Turkish public policy and whether it is possible to enforce such judgments. The research encompasses two research approaches including literature review, legal documents and court decisions analysis. Literature review includes previous research and academic studies and discussions on the scope of joint custody and public policy exception regarding enforcement of foreign custody judgments. The study focuses on the research subject from the private international law and civil law perspectives. 2. Public Policy Exception in International Conventions Regarding Custody The European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children was adopted in Luxemburg on 20 May 1980 [22].
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