The Rights of Custody and Access in the Framework of the Hague Convention on the Civil Aspects of International Child Abduction

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". For the application of the Convention, the habitual residence of the child -which refers to the actual place of residence right before the removal- should be located in a contracting state. However, the term of habitual residence is not defined in the Convention unlike the rights of custody and access. 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. 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. 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.