Input for the Special Rapporteur on Violence Against Women, Its Causes and Consequences, on Custody Cases, Violence against Women and Violence against Children
This report is submitted by Mor Çatı Women’s Shelter Foundation to the United Nations Special Rapporteur on violence against women, its causes and consequences, Ms. Reem Alsalem to inform the Special Rapporteur on custody cases, violence against women and violence against children.
The allegations of parental alienation syndrome in custody cases in Turkey
In Turkey, the concept “parental alienation syndrome” is not commonly used as it is used in Europe and the United States. Instead, the experts’ and judges’ adoption of this concept’s point of view results in legal judgments that prioritize the interest and wellbeing of the family at the expense of the right of women and children to live free from male violence.
Although “parental alienation syndrome” is not a commonly used term in Turkey, it is encountered especially in contested divorce cases. In these cases, it is observed that men use the term “parental alienation syndrome”, by which they accuse women of alienating children from their fathers, in order to intimidate women and put pressure on them and demonstrate in court that she is at fault. Considering the traditional gender roles in Turkey, generally, it is normalized that men do not take responsibility for child care and well-being, and women bear the responsibility of the child almost all alone. The amount of alimony awarded by the courts for children is also low and disproportionate with the incomes of men, the needs of the children and the economic situation of the country. However, judges pay more attention to allegations that women alienate children from their fathers. The sexist judiciary remains insensitive to the effects of male violence against women on children and to psychological violence from men to children. The fact that the violence against women is also inflicted upon the child as well and that children are the direct victims of domestic violence in any case is ignored.[1] The judiciary’s patriarchal approach prevent them from taking children’s needs into consideration in their decisions; when assessing the allegations by fathers, it is observed that judiciary omit the assessment regarding the violence and its impact inflicted by fathers. Judges’ patriarchal prejudices against women lead to a kind of double standard. Therefore, the concept “parental alienation syndrome” can be used by men to manipulate the court by covering up the fact of domestic violence and neglect, and to gain the upper hand over women by making children a part of the contentious case. Women and their children are affected psychologically, socially and economically due to these decisions and they even face safety risks. In cases where men do not take responsibility for the upbringing of the child, or inflicts violence on the women and child, it is necessary to determine with qualified expert reports that the possible alienation is a result of violence rather than the influence of the women over the child.
It should be underlined that, despite the argument of “alienation from the father”, women make an effort to the last degree. They find it difficult to make the decision to separate, in the first place, and they continue to endure violence so that their children will not be separated from their father. Women even stay in a violent environment in order to help to repair the relationship of the father with the child.
In addition, during the separation process or after the divorce, despite the fact that there are assigned visitation days for men to visit the child, which is approved and accepted by the women, men do not even visit the child during the assigned visitation days. Men, on the other hand, have been observed attempting to kidnap the child outside of the scheduled visitation days, causing the child to fall behind in school and causing physical and mental harm to the child in the process. Therefore, it can be said that the fathers’ main purpose is not to maintain their bond with their children, but to use the “custody issue” as a means of inflicting violence against women and children.
Granting of the visitation rights to the father despite safety risks
In recent years, Turkish family courts have granted fathers custody and visitation rights in an effort to preserve the “integrity of the family,” but without having conducting any risk assessments for women and children or taking into account the effects of male violence against women on children or the best interests of the child.
The visiting days are also extra risky for the women and the children. Based on the experiences of the women who applied to Mor Çatı, it is observed that men threaten the women verbally or even with a gun, at the time of visiting the child, and in some cases men follow the women afterwards to find out women’s addresses. These are not isolated incidents. For example; in a recent case at the Constitutional Court (App. No: 2017/32972, dated on 29.9.2021)[2], it has been decided that the right to life, which is guaranteed in Article 17 of the Constitution, has been violated in terms of the obligation of protection and effective investigation. According to this case, S.E. was divorced from her husband V.A. in 2013. The Family Court ruled that the custody of the child belongs to the mother and that the father can visit the child every weekend. This decision was granted despite the fact that both during the trial and after the divorce, V.A. continued to inflict violence against S.E. and S.E. demanded the Court to terminate the father’s visitation rights considering this risk for her life. S.E. was killed by her ex-husband during the visitation of the child on the day her last injunction order expired.
During visitation days, men pressure the children to find out where the women live, and sometimes even kidnap the children and threaten the women to return. The men manipulate the children by accusing the mother or threatening to harm or kill the mother to learn the address of the shelter or the women’s place of residence that is protected by a confidentiality order. Violation of the confidentiality of address, especially in cases where women and children stay in the shelter, risks not only the safety of that women and children, but also all women and children staying in the shelter, as well as the shelter workers.
During their visits, while men do not take care of children, they also alienate children from their mothers by accusing the mother.
Turkey claims to establish child visitation exchange centers in order to overcome these issues; yet these centers are still not functioning properly in practice and the experts working in the field do not have sufficient knowledge and experience on the subject. In addition, considering that children continue to be exposed to violence during their visits with the father, child visitation exchange centers are not effective in reducing the security risk experienced by children and women.
Men use the custody demands as a medium to inflict psychological violence against women
Men use the children as a means of inflicting violence on women. It is observed that before separation, men threaten women to take children if they decide to separate, and after women decide to leave, they continue to control women and use children as a medium of violence by requesting custody. Men, who do not take any material or moral responsibility for the child during the marriage, make demands such as custody and visitation rights only in order to maintain the power and control over women during separation. However, because men normalize the violence they inflict, they think that they are treated unfairly in matters such as right to visitation and custody. In fact, as a reflection of the strengthening of the anti-gender movements specifically in the context of Turkey, these groups are organized around this discourse of “injustice” under the name of “men who are victims of alimony rights” or “divorced fathers”. However, in cases of domestic violence, children are exposed to violence as well as witnessing it. The women are blamed for protecting their children against the men’s violence as they deny the men’s request for visitation. For this reason, women feel obliged to accept this request.
In addition to the direct violence of the father, the neglect of the child by father is an important issue that is not recognized by law and is not penalized, but has a great impact on the psychology and well-being of the children. Even in cases of security risks, in order to protect the children’s bonds with the father, the women try to have the men to visit the child, yet fathers continue to neglect their children, to not take care of their children, to not come to visits or pay alimony.
The rights to temporary custody and temporary alimony, in the scope of Law No. 6284, are not granted
As Mor Çatı’s shadow report for the UN Committee for the Rights of the Child also states, rights such as temporary custody and temporary alimony that must be provided under the Law
No. 6284 are almost never granted in practice; the relevant demands are not accepted or
requesting these measures is prevented by intimidating attitudes. In our interviews with social workers, psychologists and lawyers, it is frequently stated that public officials (law enforcement, prosecutors, judges, etc.), who operate with a male-dominated understanding undertake the understanding of “integrity of the family” vis-a-vis children who are exposed to the effects of domestic violence. Most of the applications for temporary custody within the scope of Law No. 6284 are rejected by family court judges by unlawfully ignoring the women’s statements regarding their experiences of violence, on the grounds that the violence has not yet been proven and the custody request must be requested in the divorce case. However, according to the Law No. 6284, judges can issue protective and preventive orders without asking for any evidence as a preventive order before the divorce cases.
Specifically, for migrant women, the rejection of temporary custody requests creates an extra challenge. While it is being possible for migrant women to return to their home country with their children based on a temporary custody decision, they are forced to stay in Turkey for long periods of time because this order is not granted.
Respect for children’s views and the role of experts in custody cases
The principle of the best interest of the child is not observed in the processes related to the custody of children and determination of child support (alimony) in divorce cases. Although there is a regulation on Judicial Interview Rooms, the lack of legal ground of the regulation for these rooms in the Civil Code provides the judge with a wide discretion in listening to children. In the current practice, while the Judicial Interview Rooms are expected to meet the needs of all vulnerable groups, these rooms are only used in cases of children who have been sexually abused. In the cases involving domestic violence, the children may suffer from psychological difficulties in the courthouse environment, and the reports received by the experts are mostly only duly submitted to the case file and do not include detailed examinations. The experiences of lawyers working in the field of combating violence against women reveal that children’s mental health is not taken into consideration while listening to the children in the court. Even though there are psychologists, social workers and pedagogues available who are responsible to interview the children and write reports, the family court judges, at their own discretion, take the children’s statements in front of the parents during the hearings which put pressure on the children. The traumatic effects such as anxiety and fear that the child will experience when meeting with an abuser father are not taken into account in any way by the judges who prioritize family’s integrity over the child’s best interest. The opinions of the experts are not taken into consideration by the judges and there are practices in which the judges decide to grant visitation rights to the father without considering the best interests of the child, despite the expert opinion. Whereas, in other cases, it can be seen that the experts who prepare social examination reports about children conduct result-oriented interviews that force the children to choose between the mother and the father and that do not take into consideration the physical and mental well-being of children.
Recommendations
- Measures to be taken to ensure that the right of the child to have their best interests taken as a primary consideration, rather than the unity of the family, is integrated, consistently interpreted and applied in all legislative, administrative and judicial proceedings and decisions, in accordance with the no. 3(b) of the List of Issues in relation to the combined fourth and fifth periodic reports of Turkey by the UN Committee of the Rights of the Child.
- Measures to be taken to raise the awareness of relevant professionals, including social workers and teachers, to recognize and effectively respond to incidents of all forms of violence against children, in accordance with the no. 5(c) of the List of Issues in relation to the combined fourth and fifth periodic reports of Turkey by the UN Committee of the Rights of the Child.
- Measures to be taken to strengthen child-friendly investigations and services for children who experience violence through multi-agency collaboration, in particular by increasing the number and capacity of professionals, including social workers and psychologists, in accordance with the no. 5(d) of the List of Issues in relation to the combined fourth and fifth periodic reports of Turkey by the UN Committee of the Rights of the Child.
- The principle of best interest of the child should be observed in all the legal proceedings. It should be ensured that all children benefit from mechanisms such as Judicial Interview Rooms including the cases of domestic violence, and all kinds of measures should be taken to eliminate secondary victimization of children in judicial processes, and should any problem arise from practitioners, necessary sanctions should apply.
- Rights-based trainings on combating domestic violence and its effect on children should be given to all judicial personnel. A system should be established to measure and evaluate the effectiveness of these trainings.
- Divorce proceedings and other measures such as temporary custody, temporary alimony, and temporary financial aid (most particularly restraining orders and confidentiality orders) should be decided and implemented by considering the best interest
of the child, considering the fact that in cases of domestic violence, children are not only witnesses but also victims of domestic violence.
- In cases of alienation from the father due to the father’s neglect towards the child, measures should be taken to protect the child and expert to be appointed to accompany the child during the visit.
- In cases where the father neglects the child and does not fulfill his parental responsibilities, sanctions should be implemented.
- In cases where there are security risks, if the visitation right is granted, there should be models where the child meets with the father in the presence of an expert, where visits can be conducted to ensure that the child and mother are not harmed.
[1]https://en.morcati.org.tr/reports/the-effects-of-male-violence-and-mechanisms-to-combat-male-violence-on-childrens-rights/
[2] https://kararlarbilgibankasi.anayasa.gov.tr/BB/2017/32972
