Deciphering the concept of habitual residence between Türkiye and Germany involves nuanced evaluations shaped by jurisdictional and cultural differences, with Turkish courts emphasizing pre-abduction social environments and German courts relying on a minimum six-month stay rule, highlighting unique approaches in cases of international child abduction.
In international law, child abduction refers to the removing of a child from his/her home and its unrightful removal to a foreign country. This action is generally carried out by family members of a different nationality or someone who knows the child. Child abduction can be based on many reasons, but the reason for the child's abduction is often attributed to custody rights.
The person(s) whose custody rights have been violated, the parent who has the right to establish a personal relationship, and the institutions responsible for care and supervision may request the implementation of the Convention. For instance, the child is removed to the hometown of one of his/her parents due to divorce, or for a holiday. The Convention On Civil Aspects Of International Child Abduction of 1980 was concluded primarily considering the best interests of the child and based on two foundations: To protect children from the harmful effects of their unjust displacement and retention in the field of international law and to ensure their prompt return to the state of their habitual residence. In this context, Article 5
of the mentioned Convention states that the person with custody has the right to determine the habitual residence of the child based on the right of custody. However, this article does not imply that the child's habitual residence can be changed as desired. Thus, changing the place of residence should not jeopardize the best interests of the child. It should also be noted that as per to its Article 4
, the Convention is only applicable to all children up to the age of sixteen
who have their residence in the state that is party to this convention. The important concept of habitual residence is also closely related to the meaning that contracting states attach.
In this note, a brief highlight shall be made on the importance of habitual residence in context of in international child abduction in Türkiye and Germany.
The concept of habitual residence is a concept that may vary from country to country, and since it must be determined according to the characteristics of the concrete case, it is not defined in the Convention. Examining the concept of habitual residence is important in terms of the authority of the Member State courts, which are parties to the agreement on the return of the child, to decide on the child's return to his/her habitual residence. In this context, the court of the place where the child's habitual residence is located will have jurisdiction in the dispute. According to Article 9 of the Fiscal Code of Germany (Abgabenordnung) Article 9
, stays of not less than six months shall be considered a person’s habitual residence, despite short interruptions. This law describes the habitual residence of adult persons, i.e., taxpayers. In detail, it is seen that a child's habitual residence is elaborated by the German courts. OLG Karlsruhe, decision of 5 June 2015 – 18 UF 265/14
– makes this clear. As stated in this case law, the child's habitual residence is not related to that of its parents; is determined independently of this.
According to this jurisprudence, it is decided that a 2.5-year-old child will become accustomed to staying at his place of residence after 6 months. This may also be valid if the parent with custody is studying abroad, whether for a short or long term. Abduction of a child does not change the habitual residence, no matter how much time passes.
Therefore, in Germany, the child's habitual residence is not directly linked to custody rather than Türkiye.
In Supreme Court decisions of Türkiye, the child's habitual residence is understood as “Where the child lived and had a social circle before being abducted".
The importance of the place where the child lives its daily life is emphasized. "The habitual residence for breastfed children is the mother's habitual residence (Supreme Court Decision - General Assembly Decision of the Civil Assembly, E. 2010/628 K. 2010/693 T. 22.12.2010)".
This decision is a point that must be taken into consideration when evaluating the child's conditions when returning the child to his/her habitual residence. The important aspect of that decision in determining the habitual residence of breastfed children or who are still dependent on their mothers because of their circumstances.
In such decisions, the Supreme Court has ruled that the return of breastfed children to their habitual residence is a condition for the physical and emotional development of the infant. Within the scope of the Convention, it is aimed to protect the physical and psychological health of the children. The child and this situation will also be evaluated in terms of the scope of decision.
Although there is no law on this matter in either Türkiye or Germany, the child's habitual residence is determined according to their jurisprudence. In international law, child abduction has become an increasingly examined and discussed topic due to factors such as the rise in divorce rates and the prevalence of domestic violence. Currently, there is no existing statutory provision addressing this issue with the aim of optimizing the number of beneficial outcomes by adopting different perspectives. It is observed, based on precedent decisions, that habitual residence is not uniform across jurisdictions; while in Germany it is not tied to custody, in Turkey it is. The absence of a legal provision on this matter leads to significant discrepancies in decision-making and is likely to continue to do so. When evaluating human rights from a global perspective, general standards should be established and applied to address and regulate this issue.
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Supreme Court Decision - 2nd Civil Chamber., E. 2012/20591 K. 13.11.2012 - 2012/26899. Regional Court of Justice Decision - Istanbul BAM, 10th HD., E. 2018/1708 K. 2018/965 T. 3.7.2018)