Under Which Law Do the Establishment of Parentage and Adoption Procedures of Foreign Nationals Fall? What Is the Jurisdiction of Turkish Courts?

In family law disputes involving a foreign element, the establishment of parentage, the effects of parentage, and adoption are among the important issues of private international law.

In particular, where the child, mother, or father are nationals of different states; where the child is born in one country and resides in another; where the parents have habitual residences in different countries; or where the adopter and the adoptee have different nationalities, it is necessary to determine the applicable law separately.

In such disputes, it is not sufficient to consider only the substantive provisions of Turkish law. First, the applicable law must be determined pursuant to the Turkish Act No. 5718 on Private International Law and International Civil Procedure (MÖHUK).

The principal provisions governing this area are Articles 16, 17, and 18 of MÖHUK. Article 16 regulates the establishment of parentage, Article 17 regulates the effects of parentage, and Article 18 regulates adoption.

In addition, it must be separately determined whether Turkish courts have international jurisdiction over disputes involving a foreign element.

1. What Is Parentage?

Parentage refers to the legal relationship between a child and his or her mother and father.

Under Turkish law, parentage between a child and the mother is established by birth, whereas parentage between a child and the father may be established through various legal means. The Directorate General of Population and Citizenship Affairs states that parentage between a child and the father may be established through marriage to the mother, acknowledgment, or a court judgment, and that parentage may also be established through adoption.

From the perspective of private international law, however, the principal question is:

Under the law of which country should it be determined whether parentage can be established in a case involving a foreign element?

The answer to this question is not derived directly from the Turkish Civil Code. Instead, the applicable law must first be determined pursuant to Article 16 of MÖHUK.

2. Which Law Applies to the Establishment of Parentage?

Article 16 of MÖHUK provides a cascading system of connecting factors for the establishment of parentage.

Accordingly, the first applicable law is the national law of the child at the time of birth.

If parentage cannot be established under that law, the law of the child’s habitual residence is taken into consideration as the second connecting factor.

If parentage cannot be established under that law either, the following laws may be applied successively:

• the national law of the mother at the time of the child’s birth,
• the national law of the father at the time of the child’s birth,
• the law of the parents’ common habitual residence at the time of the child’s birth,
• finally, the law of the place of the child’s birth.

Therefore, Article 16 of MÖHUK does not rely on a single connecting factor.

Instead, the law establishes alternative and successive connecting factors, designed to facilitate the establishment of parentage whenever possible.

3. The Child’s National Law at the Time of Birth

The first connecting factor under Article 16 of MÖHUK is the national law of the child at the time of birth.

For example, if a child born in Türkiye is a German national, the question of whether parentage can be established may initially be assessed under German law applicable at the time of the child’s birth.

What matters at this first stage is not the place where the child was born, but the child’s national law at the time of birth.

Therefore, the fact that a child was born in Türkiye does not, by itself, mean that Turkish law will apply.

However, if parentage cannot be established under the child’s national law, the other connecting factors provided for in Article 16 of MÖHUK must then be considered.

4. The Law of the Child’s Habitual Residence

The second connecting factor is the law of the child’s habitual residence.

If it is not possible to establish parentage under the child’s national law, the law of the place where the child actually and continuously resides may become relevant.

Here, a distinction must be made between habitual residence and a place where a person is merely staying temporarily.

For example, if a foreign child has been living in Türkiye with his or her family for a considerable period, attending school in Türkiye, and maintaining the center of his or her social life in Türkiye, Türkiye may have a strong connection with the child’s habitual residence.

By contrast, the same conclusion does not necessarily follow for a child who is only temporarily present in Türkiye.

5. The National Law of the Mother or Father

At the next stage under Article 16 of MÖHUK, the national law of the mother or father at the time of the child’s birth becomes relevant.

The purpose of this provision is to allow another significant legal connection that may facilitate the establishment of parentage to be taken into consideration.

For example, if parentage cannot be established under either the child’s national law or the law of the child’s habitual residence, it may be examined whether parentage can be established under the national law of the mother or father at the time of the child’s birth.

This system is particularly important in families consisting of persons holding different nationalities.

6. The Law of the Parents’ Common Habitual Residence

If parentage cannot be established under the national laws of the mother or father, Article 16 of MÖHUK provides for consideration of the law of the parents’ common habitual residence at the time of the child’s birth.

For example, if the mother is a French national and the father is a Turkish national, but both had their habitual residence in Germany at the time of the child’s birth, German law may become a relevant connecting factor if the statutory conditions are satisfied.

What matters here is not merely that the parents were present in the same country, but that they had a common habitual residence.

7. The Final Connecting Factor: The Law of the Place of Birth

The final connecting factor provided by Article 16 of MÖHUK is the law of the place of the child’s birth.

If parentage cannot be established under the preceding connecting factors, the law of the country in which the child was born may be applied.

For example, if a child of foreign nationals is born in Türkiye and parentage cannot be established under the laws referred to in the preceding stages of Article 16 of MÖHUK, Turkish law may become applicable as the final connecting factor.

Accordingly, the place of birth functions as a supplementary connecting factor within the system established by MÖHUK.

8. Which Law Governs the Disavowal or Annulment of Parentage?

The second paragraph of Article 16 of MÖHUK contains a specific rule on this issue.

Accordingly:

The law under which parentage was established also governs the annulment or disavowal of that parentage.

This provision is particularly important in practice.

For example, if the parentage between a child and a father was established under the law of a particular foreign country, the conditions for subsequently challenging or terminating that parentage will, as a rule, also be assessed under the same law.

Therefore, there is a direct connection between the establishment of parentage and the annulment or disavowal of parentage.

9. Which Law Applies to the Effects of Parentage?

The establishment of parentage and the effects of parentage are not the same issue.

The establishment of parentage concerns whether a legal relationship between the child and the mother or father comes into existence.

The effects of parentage, on the other hand, concern the legal consequences arising after that relationship has been established.

Article 17 of MÖHUK regulates the effects of parentage.

As a general rule, the effects of parentage are governed by the law that established the parentage.

However, the law provides an important exception.

If the mother, father, and child have a common national law, that common national law applies to the effects of parentage.

If there is no common national law, the law of their common habitual residence applies.

10. What Issues May Fall Within the Effects of Parentage?

The effects of parentage concern the consequences of the legal relationship between the mother, father, and child following the establishment of parentage.

Depending on the circumstances of the particular case, these may include:

• the child’s rights vis-à-vis the mother and father,
• the rights and obligations of the parents toward the child,
• the care and protection of the child,
• issues relating to legal representation,
• matters connected with parental responsibility or custody,
• personal legal consequences arising from parentage.

However, it must be determined separately in each case whether a particular dispute actually falls within the effects of parentage.

In particular, it should be remembered that matters such as custody, maintenance, and succession may be subject to separate choice-of-law rules under MÖHUK.

11. The Common National Law of the Mother, Father, and Child

Under Article 17 of MÖHUK, the first special connecting factor is the common national law of the mother, father, and child.

For example, if the mother, father, and child are all nationals of the same country, that common national law may apply to the effects of parentage.

This provision considerably simplifies the determination of the applicable law where all members of the family have the same nationality.

However, where the parties have different nationalities, there is no common national law.

In that case, the next connecting factor must be considered.

12. The Law of the Common Habitual Residence

Where the mother, father, and child do not have a common national law, the law of their common habitual residence becomes relevant.

For example, if the mother and father are nationals of different countries but have been living in Türkiye with their child for a considerable period, Turkish law may become applicable as the law of their common habitual residence with respect to the effects of parentage.

The circumstances of the particular case remain important.

Mere presence in Türkiye is not necessarily equivalent to Türkiye being the family’s common habitual residence.

13. What Is Adoption?

Adoption is a legal institution that establishes a legal parent-child relationship between the adopter and the adoptee.

The Directorate General of Population and Citizenship Affairs describes adoption as a personal status event that establishes parentage between the adoptee and the adopter through a court judgment.

Where an adoption involves a foreign element, the applicable law is determined under Article 18 of MÖHUK.

14. Capacity and Requirements for Adoption

Pursuant to Article 18(1) of MÖHUK, the capacity and requirements for adoption are governed by the national law of each party at the time of adoption.

This provision is particularly important.

The law of only one person is not applied to the adoption relationship.

The capacity and requirements of the adopter are assessed under the adopter’s national law, while the capacity and requirements of the adoptee are assessed under the adoptee’s national law.

Therefore, more than one national law may apply simultaneously to the same adoption proceeding.

15. The National Law of the Adopter

Whether a foreign person wishing to adopt has the legal capacity to adopt is, as a general rule, determined under the person’s national law at the time of adoption.

For example, if the capacity of a French national residing in Türkiye to adopt is being assessed, the relevant provisions of French law will initially be considered pursuant to Article 18 of MÖHUK.

However, this does not mean that the entire adoption proceeding is governed by French law.

The legal status of the adoptee must also be considered separately.

16. The National Law of the Adoptee

Article 18(1) of MÖHUK provides that the capacity and requirements of the person being adopted are also determined under the adoptee’s own national law.

For example, where a child residing in Türkiye is an Italian national, Italian law may become relevant in determining the requirements concerning the child’s capacity to be adopted.

Therefore, in adoption proceedings, it is important to establish separately the nationality of the adopter and the nationality of the adoptee.

17. Consent of the Other Spouse

Whether the consent of the other spouse is required in an adoption is also specifically regulated under private international law.

Article 18(2) of MÖHUK provides that, with respect to the consent of the other spouse to the adoption, the national laws of the spouses shall be applied together.

Accordingly, where one of the spouses is a foreign national, it is not sufficient to consider only the national law of the adopter.

The national laws of both spouses must be taken into consideration together.

18. Joint Adoption by Spouses

Article 18(3) of MÖHUK contains a special rule where spouses jointly adopt a child.

In such cases, the effects of the adoption are governed by the law governing the general effects of marriage.

Therefore, where spouses jointly adopt a child, it is also important to determine which law governs the general effects of their marriage.

This provision is particularly relevant where spouses holding different nationalities wish to adopt jointly.

19. Which Law Governs the Effects of Adoption?

Under Article 18(3) of MÖHUK, the effects of adoption are, as a general rule, governed by the national law of the adopter.

However, where spouses jointly adopt a child, the law governing the general effects of marriage applies.

Accordingly, the following distinctions should be made in adoption matters:

Capacity and requirements for adoption → the respective national laws of the parties

Consent of the other spouse → the national laws of the spouses applied together

Effects of adoption → the national law of the adopter

Joint adoption by spouses → the law governing the general effects of marriage

This distinction is extremely important in practice.

20. Adoption by Foreign Nationals in Türkiye

In adoption applications made by foreign nationals residing in Türkiye, the presence of a foreign element means that the applicable law must first be determined under Article 18 of MÖHUK.

In addition, the substantive provisions of Turkish law become relevant where Turkish law is determined to be the applicable law.

Under Turkish law, the requirements for adoption are regulated by the relevant provisions of the Turkish Civil Code.

The Directorate General of Population and Citizenship Affairs also states that various requirements apply to joint adoption of minors, adoption by a single person, and adoption of the spouse’s child.

Therefore, in adoption applications by foreign nationals in Türkiye, it is not sufficient merely to determine whether the parties are present in Türkiye.

21. International Conventions on Intercountry Adoption

Adoption is also an area in which international conventions play an important role.

In particular, the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption establishes important rules concerning intercountry adoptions between Contracting States.

The Convention contains specific provisions concerning the protection of the best interests of the child, obtaining the necessary consents, cooperation between Central Authorities, and recognition of adoptions in other countries.

Therefore, when examining the provisions of MÖHUK, any applicable international conventions to which Türkiye is a party must also be considered separately.

22. When Do Turkish Courts Have Jurisdiction?

The applicable law and the international jurisdiction of Turkish courts are two separate issues.

The fact that a foreign law must be applied in a dispute does not necessarily mean that Turkish courts lack jurisdiction.

Article 40 of MÖHUK provides that the international jurisdiction of Turkish courts is, as a general rule, determined according to the domestic rules governing territorial jurisdiction.

Accordingly, two separate questions must be asked in a dispute concerning parentage or adoption:

Do Turkish courts have international jurisdiction to hear this dispute?

and

If Turkish courts have jurisdiction, which country’s law should they apply?

The answers to these two questions may be different.

23. Jurisdiction of Turkish Courts in Adoption Proceedings

With respect to the international jurisdiction of Turkish courts in adoption proceedings, Article 40 and the following provisions of MÖHUK should first be considered.

Article 40 of MÖHUK connects the international jurisdiction of Turkish courts to the domestic rules on territorial jurisdiction. In adoption proceedings, Article 315 of the Turkish Civil Code is particularly relevant with respect to territorial jurisdiction. This issue has also been specifically emphasized in academic legal studies.

Accordingly, factors such as the foreign national’s presence in Türkiye or the child’s residence in Türkiye may be relevant when determining whether Turkish courts have jurisdiction in a particular case.

24. Jurisdiction of Turkish Courts in Parentage Proceedings

The international jurisdiction of Turkish courts in disputes concerning parentage is likewise generally assessed within the framework of Article 40 and the following provisions of MÖHUK.

The nature of the particular action is important.

For example:

• determination of paternity,
• denial or disavowal of paternity,
• validity of acknowledgment,
• annulment of parentage,
• other claims concerning the establishment of parentage

do not necessarily have to be classified under exactly the same legal category.

Therefore, in a particular case, the legal nature of the action must first be determined, followed by the rules concerning subject-matter and territorial jurisdiction.

25. Recognition of Foreign Court Judgments in Türkiye

Where a foreign court has issued a judgment concerning parentage or adoption and that judgment is intended to be used in Türkiye, the mere existence of the judgment is not necessarily sufficient.

For the judgment to produce legal effects in Türkiye, the requirements for recognition or enforcement must be assessed in light of the circumstances of the particular case.

In particular, the provisions of MÖHUK concerning the recognition of foreign court judgments are important in determining whether a foreign judgment will have the effect of a final and binding judgment or conclusive evidence under Turkish law.

In adoption cases, any applicable international conventions must also be taken into consideration.

26. Effect of a Judgment Issued in Türkiye in a Foreign Country

The reverse situation may also arise.

If a parentage or adoption judgment issued in Türkiye is intended to be used in another country, the recognition and acceptance requirements under the law of the country in which the judgment will be used may need to be examined separately.

For example, if an adoption judgment is issued in Türkiye concerning a foreign family residing in Türkiye, additional procedures may be required under the law of the relevant country before the judgment can be entered into the family’s or child’s civil-status records or used for other official purposes.

Therefore:

The issuance of a judgment in Türkiye

and

the automatic validity of that judgment in another country

are not the same thing.

27. Which Documents May Be Important in Practice?

Depending on the circumstances of the case, various documents may be required in parentage and adoption proceedings involving foreign nationals.

These may include:

• passports and identity documents,
• birth records,
• marriage certificates,
• divorce judgments,
• civil-status records issued by foreign authorities,
• court judgments concerning parentage,
• acknowledgment documents,
• adoption judgments,
• documents demonstrating residence and habitual residence,
• documents concerning foreign law,
• apostilled documents,
• notarized or sworn translations.

Where foreign law is applicable, it is particularly important to establish the content of the relevant foreign law in a procedurally appropriate manner.

28. The Difference Between Articles 16, 17, and 18 of MÖHUK

For a clearer understanding of the subject, the differences between the three provisions can be summarized as follows:

This system demonstrates that MÖHUK uses different connecting factors depending on the nature of the dispute, rather than applying a single law to all matters concerning parentage and adoption.

Conclusion

In parentage and adoption disputes involving a foreign element, the first step is to determine the applicable law.

The principal provision concerning the establishment of parentage is Article 16 of MÖHUK.

Under this provision, the national law of the child at the time of birth is considered first. If parentage cannot be established under that law, the law of the child’s habitual residence, followed successively by the national law of the mother or father at the time of birth, the law of the parents’ common habitual residence, and finally the law of the child’s place of birth, may become applicable. Where parentage has been established under a particular law, its annulment or disavowal is, as a general rule, also governed by that law.

Following the establishment of parentage, the consequences arising from that relationship are governed by Article 17 of MÖHUK. As a general rule, the law that established the parentage applies. However, where the mother, father, and child have a common national law, that law applies; where there is no common national law, the law of their common habitual residence applies.

Article 18 of MÖHUK establishes a separate system for adoption.

The capacity and requirements for adoption are governed by the national law of each party at the time of adoption. With respect to the consent of the other spouse, the national laws of the spouses are applied together. The effects of adoption are, as a general rule, governed by the national law of the adopter. Where spouses jointly adopt a child, the law governing the general effects of marriage applies.

The international jurisdiction of Turkish courts must be examined separately from the applicable law. Article 40 of MÖHUK provides, as a general rule, that the international jurisdiction of Turkish courts is determined according to the domestic Turkish rules on territorial jurisdiction.

Accordingly, the correct approach in a parentage or adoption dispute involving a foreign element is:

First, the legal nature of the dispute is determined → the applicable law is identified under MÖHUK → the international jurisdiction of Turkish courts is examined → the substantive provisions of the applicable law are assessed → and, if a foreign court or administrative authority’s decision must be relied upon, the rules on recognition are examined separately.

In particular, the following factors should be considered together:

the child’s nationality, the nationalities of the mother and father, the child’s place of birth, the habitual residences of the child and parents, the marital status of the parties, and any existing foreign court judgments.

Therefore, it would not be correct to conclude generally that “the child lives in Türkiye, therefore Turkish law applies” or that “the parties are foreign nationals, therefore foreign law must apply.”

Under private international law, the connecting factors of each individual case must be assessed separately.

Important Note: The application of international conventions to which Türkiye is a party may alter the outcome in matters concerning parentage and adoption. In particular, in cases of intercountry adoption, the relevant international conventions should be examined separately.