Mainly No: 2018/1306
Decision No: 2018/4719
Date of Decision: 09.04.2018
REPLACING THE SURNAME OF THE COMMON CHILD WITH THE SURNAME OF THE MOTHER
CLAIM – THE SURNAME OF THE CHILD WITHIN THE SCOPE OF THE RIGHT OF CUSTODY
– AMENDMENT OF THE RIGHT TO DETERMINE THE CHILD’S
IT IS NOT FOUND CONTRARY TO THE BENEFIT OF THE SUPERIOR – AS REQUIRED BY THE ACCEPTANCE OF THE CASE
- VIOLATION OF THE PROVISION
ABSTRACT: The case is aimed exclusively at the replacement of the surname of the common child by the plaintiff mother, who has the right of custody, with her own surname. Your mother’s surname to be deposited for custody of their child’s last name be replaced with that of demand that are within the scope of the authority related to the use of the custody rights, including the right to determine the surname of the child under custody, in the same legal position under the surname of the child custody rights of Man, which recognized the right to determine the woman of progressive, in terms of the use of the right of custody for a different treatment based on gender Clay will te the marriage union is carrying the child born in the family’s last name, with the end of the marriage union to be deposited for custody himself prohibitive to change your mother’s surname own a legal regulation, in the absence of a concrete case the change is not contrary to the benefit of the child in question is superior and there will be a change of personal circumstances considering changing the child’s surname, given by considering the decisions of the Constitutional Court in similar cases regarding the violation, you need to decide upon the adoption of the case.
(2709 P. K. m. 10, 20, 41) (4721 P. K. m. 27, 282, 292, 321, 335, 336) (2525 P. K. m. 4) (6216 p. K. m. 50) (ANY. MAH. 08.12.2011 T. 2010/119 E. 2011/165 K.) (ANY. MAH. 25.06.2015 T. E. 2013/3434) (ANY. MAH. 11.11.2015 T. 2013/9880 E.)
Case: At the end of the procedure of the case between the parties, the judgment given by the Dec Office of the District Court of Justice, the date and number shown above, was appealed by the plaintiff, the documents were read and discussed as necessary and considered:
Verdict: Plaintiff B. The police station filed a lawsuit dated 12.05.2016; one of the defendants is Y. She and Incel divorced with a final decision on 27.02.2015, their common child was A. Dated 17.03.2011. E.’s custody was given to him, and that a common child starting school “very civil” of the surname last name before she was married, “the Outpost” because of the difference in daily operations of the last names in the problem about the kid through a divorce with her mother in the process he was forced to submit-birth certificate to prove that he, the defendant, his father’s partner that is unrelated to the child with the child it’s been a long time, and that has not been paying child support, the child with the mother the child is disturbed by having different last names, and wanted to carry the same surname with parents by claiming that, he requested that the surname of the common child be changed to “Karakol”, which is the surname of the plaintiff mother, and sued, with the decision of the court of first instance dated 18.07.2017; “TMK No. 4721.nun 321. according to the article, if the parents are married, the child will bear the family name of the family, the father will understand from the phrase “family”, in order to give the child a last name, it will be necessary to check whether the mother and father were married on the date of birth of this child, the last name was born on 17.03.2011, when it was requested to change A. E. I.as of the date of birth, the child born in a marital union in which his parents are married is TMK.nun 321.according to article 321 of the Turkish Civil Code, where the father takes his surname, after the child’s surname is determined in this way, it is necessary to change his surname on the basis of the right of custody. article 27 of the Turkish Civil Code states that it is not possible to edit the child’s last name only after he becomes an adult. in case of the presence of conditions in the article by himself or by the father’s TMK.june 27th. it is possible if he changes his surname by proving the conditions in the article, unless these two situations occur, the child must bear the father’s surname …”it was decided to dismiss the case on the grounds that the decision was appealed by the mother Izmir District Court of Justice 2. According to the decision of the Legal Department dated 14.11.2017 “… the child born in a marital union is subject to Article 321 of the Turkish Civil Code. in accordance with the article ”The father has taken his last name …”, the plaintiff’s request for an appeal was rejected on the basis of the fact, the verdict was appealed by the plaintiff’s mother.
The case is aimed exclusively at the replacement of the surname of the common child of the plaintiff mother, who has the right of custody, with her own surname.
From the trial and the evidence collected; common child A. E.that the parties were born on 17.03.2011 before the date of marriage, on 18.03.2011 the defendant was recognized by the father and the paternal bond was established, the parties were married on 22.08.2011 and divorced with a final decision on 27.02.2015, the common child A with a divorce decision. E.it is understood that the custody of the is left to the plaintiff mother, the plaintiff mother still has the rights and responsibility for custody.
The decency between the child and the mother is established by birth. The kinship between the child and the father is established by marriage with the mother, recognition or judge’s decisionship. The lineage is also established through adoption (TMK m. 282). A child born outside of marriage is subject to the provisions related to children born spontaneously in marriage if his parents marry each other (TMK m. 292). If the child, parents are married, the family name is ta ir. However, if the mother has a double surname due to her previous marriage, the child can use her single surname ta ir (TMK m. 321).
The change of name can only be requested from the judge on the basis of justifiable reasons. Registration and announcement are made in the population register where the name has been changed. Changing the name does not change the personal situation. A person who has suffered damage from changing the name can sue for the abolition of the decision to change it within a year, starting from the day he finds out about it (TMK m.27). The surname is one of the most important elements in determining the identity of the individual as an individual and is an indispensable, inalienable, strictly adhered to uti right of the person, which has become an integral element of the identity and ki marrow of the individual.
Custody is called the totality of the rights and obligations that parents, non-adult children or restricted adult children have in relation to their existence, assets and representation of them on these two issues (AKINTÜRK, Turgut: Turkish Civil Code C.2, Family Law, Istanbul 2002, p. 400). Custody imposes responsibility on parents and authorizes them to make decisions that must be taken about the child until he is an adult. In this regard, in modern law, custody is considered to be the sum of rights and obligations, since it includes authority and responsibility for ensuring the superior benefit of the child, as well as a right. The ultimate goal of custody is to ensure that a minor who has not yet reached adulthood is prepared for future life as an adult in the future (AKYÜZ, Emine Child Law Protection of Children’s Rights, 2012 p.220). article 335 of the Law No. 4721 on the right to custody. in the article, it is pointed out that the child who is not an adult is under the custody of his parents, and custody cannot be taken from the parents unless there is a legal reason, indicating the joint use of the right of custody and the powers within this scope during the marriage relationship; 336. in the article, it is stipulated that the parents will use custody together as long as the marriage continues, that the judge may grant custody to one of the spouses in case of ending the joint life or separation, that custody belongs to the survivor in case of the death of one of the parents, and in case of divorce, the child belongs to the party left to him, and the principle of equality of the spouses is also tried to reflect in terms of the right of custody and the use of the powers it contains.
4 of the Surname Law No. 2525 of 21.6.1934, in which the issue of determining the surname of the child who is within the powers within the scope of the right of custody is regulated in cases of dissolution of marriage or divorce. in the second paragraph of the article “In cases of dissolution of marriage or divorce, the child receives the name that his father has chosen or will choose, even if it has been transferred to his mother.” the attached regulation is dated 8.12.2011 of the Constitutional Court and E.2010/119, K.2011/165 revoked and the revocation decision by the decision of the justification of a man and a woman in marriage, during marriage, and with it the end of which should be E the rights and responsibilities of spouses and also referred to the provisions of International words me, the rights and obligations during marriage and divorce that are in the same legal position in terms of only the man who recognized under the surname of the child custody rights of women to choose the right progressive, the use of the right of custody that would lead to discrimination by gender in terms of indicating the subject of the appeal by Rule 10 of the Constitution. and 41. it was stated that the cancellation was decided due to the fact that it was considered contrary to the articles.
25.06.2015 and 2013/3434 of the Constitutional Court Number, Date and 11.11.2015 2013/9880 number, date and reference number of the individual in the decision 20.07.2017 2014/1826; deposited for custody of their child’s last name to demand that it be replaced with surname, and in this context the use of the right to custody of the Constitution because it is related to authority 20. the item is a value that needs to be addressed in the context of legal, protection, maintenance and inspection rights under custody or similar terms expressed in the name of the child-determination is also located where the rights and obligations of the spouses during the marriage and Bo relive the continuation of the same legal position in terms of the rights recognized under the custody of the child of the man that the right to determine the surname of the woman of progressive, in terms of the use of the right of custody for a different treatment based on gender clay that te, a family with a surname belonging to carry the child for purposes of determining a National Register in ensuring the stability and reliability of the records in the child and the public has an interest in open, although the mother’s surname to the child, ensuring the interests of the adverse effects on the property in question should be determined with certainty, and in moderation and judicial practice of the subject of the application is not accepted, noting that references to the event at hand concrete 20 of the Constitution is subject to judicial decisions of a similar nature. article 10 of the Constitution, which is considered together with its article. it was decided that the non-discrimination prohibition provided for in the article had been violated, and in the same decisions it also decided that the file should be sent to the relevant court for a retrial to eliminate the violation and its consequences.
In contrast to the abstract and concrete norm control, the violation decisions made by the Constitutional Court as a result of an individual application are valid and binding only in terms of the applicant and the administrative action or decision subject to the application. Article 50 of the Law of the Board of Directors, which determines that the violation of rights determined by the Constitutional Court is caused by a court decision. (2.) in the face of the kin decision on the “retrial to eliminate the violation and its consequences” taken on the basis of the paragraph, it is no longer possible for the courts of first instance to decide otherwise in terms of the concrete event and person that is the subject of the application. As described above, but their partner’s last name surname the child the mother’s parental authority for a replacement with similar judicial decisions in the other case is opened, the individual is made by the High Court in the case where the subject of the application to detect and to eliminate the consequences of the violation of the rights violation sure that the retrial will be opened up the path seems. With the Constitution and the European Convention on human rights to which Turkey is a party of the protocols in the area of Public Protection okt, “of alleged violations of fundamental rights and freedoms” law be resolved in the ordinary way, it is essential that the first global jurisdictions.
Within the scope of these decisions of the Constitutional Court, the principle of “Superior Benefit of the Child” should also be examined. The most general definition of this principle is the protection of the child’s benefits at all times and under all circumstances, and it is the highest principle that guides officials and officials in all problems encountered in children’s law, orders the choice of a solution for the benefit of the child, protects the weak against the strong (AKYÜZ, Emine Child Law Protection of Children’s Rights, 2012 p. 10). The superior benefit of the child is a criterion, a guideline that must be taken into account in everything that concerns the child and is taken into account in determining what is best for the child in a particular concrete event. The superior benefit of the child also performs a function that guarantees the rights of the child (YÜCEL, Özge Ufuk University Journal of the Faculty of Law Volume 1 Issue 2, December 2013, p. 117-137). It is in the best interests of not only the child or the parents, but also of society that the necessary importance is given to the best interests of the child. Because the positive development of the child in social, cultural, physical and psychological aspects will also prevent the emergence of harmful behaviors in society in the future (BAKTIR, Çetiner Selma, Custody Law, Ankara 2000 p.33).
In a concrete case, the plaintiff’s mother’s parental authority, the child is uncomfortable by having different last names, and the defendant asserts that the prosecutor wants to carry the same surname with parents and witnesses of the father of the child is unrelated to that for about three years, didn’t want to see a father his child, the child’s mother, where he lived with being uncomfortable carry the same surname, mom sharing the same last name with continuous request voiced himself, when introducing the last name Mother’s last name, which is “Outpost” and declared that as it was expressed. It is not suggested that if the child’s last name is replaced with the mother’s last name, the child’s mental development will be negatively affected in terms of the superior benefit, as well as from the witness statements just described, it is understood that changing the child’s last name to the mother’s last name may be in the best interest of the child
In the light of all these explanations; your mother’s surname to be deposited for custody of their child’s last name be replaced with that of demand that are within the scope of the authority related to the use of the custody rights, including the right to determine the surname of the child under custody, in the same legal position under the surname of the child custody rights of Man, which recognized the right to determine the woman of progressive, in terms of the use of the right of custody for a different treatment based on gender Clay will te the marriage union is carrying the child born in the family’s last name, at the end of the marriage union, there is no legal regulation preventing the mother, to whom the right of custody has been transferred, from changing her last name, this change in a concrete case is also not contrary to the best interests of the child, and the child’s personal status will not change by changing the last name (TMK m. 27) taking into account, it was necessary to decide on the acceptance of the case, taking into account the decisions of the Constitutional Court on the violation of rights in similar cases, while it was not correct to establish a provision in writing, it was necessary to decide on the violation of the provision.
Conclusion: Izmir Regional Court of Justice 2 for the reason described above. The decision of the Law Department dated 14.11.2017 to ABOLISH the Izmir court of first instance 8. It was UNANIMOUSLY decided that the Family Court’s decision No. 18 of 2017/2017 of 2017/11 th, decision No. 523/2017 should be OVERTURNED, the file should be sent to the said court of first instance, a sample of the decision should also be sent to the law department of the said district court of justice, and if requested, the appeal fee should be returned to the depositor. 09.04.2018