Individual Application of Gülbu Özgüler

Ms. Özgüler had a child with her husband. After the finalization of her divorce and custody proceedings, which gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance rejected her petition on the grounds that the transfer of custody to the mother was not grounds for changing a child’s last name. The Court of First Instance found that a child’s last name could only be changed if the father consented or if the child, when he/she reached a lawful age, duly filed a petition for such change. The Court of Appeals approved the lower court’s decision. After Ms. Özgüler’s individual application, the Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for retrial. The Constitutional Court dismissed that the applicant’s claim that her right to a fair trial had been violated by an unjustified judgement because of inadequate evidence. However, the Constitutional Court accepted her claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Özgüler the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of that Constitution.