Turkey is a signatory state to the “Hague Convention On The Civil Aspects Of International Child Abduction” starting from 2000. The essential aim of the Convention is the prompt return of the child to his/her state of habitual residence in case of wrongful removal or retention in breach of the custody right. In order to realize the implementation of the Convention accordingly, it is important to determine the scope of the terms of “habitual residence”, “law of the state of habitual residence”, “custody right” and “access right”. In this study, rights of custody and access are examined. 

In the Convention, the term of custody right is preferred to guardianship and described as “right relating to the personal care of the child and, in particular, the right to determine the child’s place of residence”. The legal systems may use different terminology for custody right like guardianship but, what matters is the rights and duties entitled to this right. The wrongful removal and retention, in other words, international child abduction act is detected upon the breach of the custody right as defined under the Convention. 

Access right, in other words, visitation right is another important term in the Convention and grants “the right to take the child for a limited period of time to a place other than the child’s habitual residence”. It is not clear from the related article that the child can be taken to a state which is not signatory to the Convention. If such case happens, it should be noted that both rights of custody and access cannot be protected by the Convention.

The right of custody may arise in particular by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under the law of that state. This list is not exhaustive. In ascertaining whether there has been a wrongful removal or retention, the judicial or administrative authorities of the requested state may ask a certificate or an affidavit from a central authority or other competent authority of the state of the child’s habitual residence or from any other qualified person regarding the relevant law of that state. Instead the judicial or administrative authorities of the requested state may take notice directly of the law and judicial or administrative decisions, formally recognized or not, of the state of the habitual residence of the child without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. The legal grounds of access right are not stated in the Convention. But, it is widely accepted that access right is also emaneted from a legal authority, a judicial or administrative decision, or an agreement having legal effect under the law of that state and the courts of the state of the child’s habitual residence have the authority to grant an access right. There appeared discrepancies among the court decisions in interpretation of rights of custody and access since the information and documents provided by the state of the child’s habitual residence are not binding.

It is not explicit in the Convention whether the conflict of law rules of the state of the child’s habitual residence will be applied as being the part of that state’s law. In principle, renvoi is not considered in international conventions. However, determination of the rights of custody and access by the substantive law referred to by the private international law of the state of the child’s habitual residence will better suit the main purpose of the Convention. 

The custody decision of the court of the state of the child’s habitual residence has importance in both determination of wrongful removal/retention and prevention of unfair and pointless restrictions on the travel rights of the child and the custodial parent. In passport and visa applications and in border controls the written approval of the noncustodial parent is required as a precaution to wrongful removal or retention even so the custodial parent has the right to take the child abroad temporarily or permanently within the right of custody granted by the state of the child’s habitual residence. As a solution, a protocol on international travel of the child can be agreed by the parents. In case no such agreement or approval of the non-custodial parent is obtained, the custodial parent can request a permission from the court of the state of the child’s habitual residence for the child’s travel abroad. In our opinion, these problems can easily be eliminated if the courts can state explicitly in their divorce or custody decisions that no approval is required from the non-custodial parent for international travel of the child.

The right of access is protected less comparing to the right of custody. Even if the parents signed an agreement stating that the approval of the non-custodial parent is compulsory for travel and change of residence of the child to abroad, the right of access is not protected effectively. Furthermore, the Convention does not provide convenience for court decisions on access rights like the automatic enforcement of the court decisions on custody rights without recourse to the specific procedures.

An application to make arrangements for organizing or securing the effective exercise of right of access may be presented to the central authorities of the contracting states in the same way as an application for the return of a child. However, habitual residence and breach of the custody right matters are not investigated since the return of the child cannot be claimed in this application.

In order to determine the international child abduction act, it is important to clarify the scope of the access right. According to the Turkish court practice, the visitation right should be used at the place of the child’s habitual residence on suspicion of abduction. Besides some other state courts decide on the performance of the access right under supervision to prevent such risk of kidnapping.