Why not enforce? a critical analysis of the refusal to enforce foreign joint custody judgments in turkish courts

Abstract

The purpose of this article is to encourage the Turkish courts to eliminate their presumption against the enforcement of joint custody judgments, a presumption which is based on public policy grounds, so that these judgments are enforced in appropriate circumstances. As the number of marriages between Turkish and foreign nationals increases, more international family law conflicts will come into the picture. The termination of marriages by divorce brings with it many problems, among which custody of the children has great importance. Joint custody decisions are an important type of custody decisions, and the Turkish courts' approach to such decisions needs to be analysed from an international perspective. It is recommended that the Turkish Courts change their tendency to argue that custody is a subject which is directly connected to public policy and that foreign joint custody judgments cannot be enforced in Turkey since, under Turkish Civil Law, joint custody is not accepted. Our main conclusion is that, in cases where the parents are able to communicate effectively and to collaborate in a civilized manner for the sake of their child, and considering that such co-operation is in the interests of the child, public policy intervention should not occur, and the foreign joint custody judgment should be enforced. © The Author 2013. Published by Oxford University Press. All rights reserved.