UNDER WHAT CIRCUMSTANCES CAN MINORS BE PLACED UNDER GUARDIANSHIP?
UNDER WHICH CIRCUMSTANCES CAN MINORS BE PLACED UNDER GUARDIANSHIP?
In this week’s section allocated to me in the newspaper, I will try to explain a very important issue. As you are aware, being a guardian carries significant responsibilities. Upon request, it may be decided that a fee be paid to the person appointed as a guardian by the guardianship authority. I will attempt to provide information regarding the circumstances under which minors can be placed under guardianship.
The primary priority is the protection of the minor’s interests. For this reason, the most important factor is that minors should be under parental custody. Every minor not under parental custody must have a guardian appointed by the guardianship authority. However, the most important point to note here is that the appointment of a guardian for a minor by the guardianship authority does not mean that the minor is restricted (under legal disability). A guardian may be appointed for those who are not yet of legal age, to take effect when they reach the age of majority. The primary purpose here is not to restrict the child, but to ensure that guardianship provisions come into effect without creating a gap when the child reaches the age of majority, thereby preventing potential harm. Restriction only takes effect and produces legal consequences after the minor reaches the age of majority.
The guardian’s fee is regulated in detail in the Turkish Civil Code. Specifically;
Turkish Civil Code Article 419- The guardianship authority is obliged to appoint a guardian without delay. When necessary, a decision may be made to restrict those who are not yet of legal age; however, the restriction decision produces results after they reach the age of majority. As a rule, restricted adult children are not placed under guardianship but remain under parental custody.
As seen in Article 419 of the Turkish Civil Code, it is stipulated that a restriction decision can be rendered if it is in the legal interest of the minor.
Minors are placed under guardianship if they cannot be protected by their mother and/or father, if the parents are unknown, if the parents are deceased or if a declaration of absence has been issued, or if the parental right cannot be exercised by the mother and/or father due to reasons such as the parents’ inexperience, illness, absence in another location, or similar circumstances.
The guardian’s fee is regulated in detail in the Turkish Civil Code. Specifically;
Turkish Civil Code Article 335- A child who is not of legal age is under the parental custody of their mother and father. Parental custody cannot be taken from the mother and father unless there is a legal reason. Unless the judge deems it necessary to appoint a guardian, restricted adult children also remain under the parental custody of their mother and father.
As seen in Article 335 of the Turkish Civil Code, it is established that children who are not of legal age shall be under the parental custody of their mother and father, and that parental custody can only be taken from the parents if there is a legal reason. During the continuation of the marital union, parental custody is exercised jointly by the mother and father; in the event of divorce, the judge decides which party will be granted custody or whether the parties will continue to exercise custody jointly. Since parental custody is a right that can only be exercised by the mother and father, the exercise of parental rights by anyone other than the parents can only occur through a court order. In accordance with the established case law of the Court of Cassation, it has been ruled that a stepmother cannot exercise the right of parental custody either. A guardian will also be appointed for a minor if the mother or father cannot exercise the right of custody due to reasons such as being in prison, being under legal disability, or suffering from a severe illness.
a) A minor who cannot be protected by the parent holding custody: In the event of the death of the parent who was granted custody of the minor, custody does not automatically pass to the other parent. The Family Court must render a decision on this matter. For a decision to terminate parental custody to be made, it must be understood in advance that the measures taken for the protection of the child have been ineffective, will not be effective, or will remain insufficient.
b) A minor who cannot be placed under parental custody: If the Family Court has decided that custody cannot be granted to the mother or father or both (if it is understood that it would not be appropriate to grant custody to either party during divorce, or if neither party has requested custody, or if the court has ruled that custody cannot be granted to either party due to the invalidity of the marriage), then a guardian is appointed for the minor.
c) An adopted minor who lacks parental custody: With the establishment of an adoption relationship, the rights and obligations belonging to the parents pass to the adoptive parent. For this reason, in the event of the cancellation or invalidity of the adoption process, the death of the adoptive parent, or the removal of the adoptive parent’s right of custody, a guardian will be appointed for the minor who is deprived of parental custody. In the cases mentioned above, the Family Court must make a ruling on whether the minor will be placed under the parental custody of their biological parents, and if they are not, the file must be sent to the guardianship authority for the appointment of a guardian. Upon the death of the adoptive parent, the custody of the adoptee does not automatically pass to their biological parents. In order for a minor to be placed under guardianship while their parents or one of their parents has custody, a decision regarding the termination of parental custody must first be made. A guardian can only be appointed after the decision to terminate parental custody. Since parental custody is a matter closely related to public order, the judge is obliged to take the necessary measures upon request or ex officio. Therefore, not only the mother, father, or relatives but anyone concerned has the right to file an application regarding this matter. When an application is made to the Civil Court of Peace to appoint a guardian for a child, the Civil Court of Peace should wait for the Family Court’s decision regarding the termination of parental custody; if an application has been made to the Family Court for the termination of custody, the court sends the file to the guardianship authority upon the finalization of the decision to terminate custody. If a guardian has been appointed for a child and the mother or father requests that custody be granted to them, the file must first be sent to the Family Court for the termination of guardianship and then for custody to be granted to the mother/father.