The Surname Problem of Mutual Children of Divorced Parents: An Analysis of a Decision in Line With Dictate of Reason and its Reflection on Administrative Law

The subject of this study is; the question of which surname the child carrying the father’s surname within the marriage union will take after divorce, given under custody of the mother. The fact that the child does not hold the same last name as his/her mother causes trouble for both the child and the mother at different stages of community life. In this present case, the mother filed a lawsuit in a family court to give her surname to their children claiming that her custody right should include giving her surname to their children on the basis of “Annulment decision of the Constituti-onal Court in 2011 regarding the article of surname law which states that the child must use father’s surname even if the parents are divorced even if the mother keeps the custody”. The case has been rejected on the grounds that tangible provisions concerning this issue have not been made yet. An individual application was lodged to the Constitutional Court against the decision approved by the Court of Cassation. The Constitutional Court has stated that there are inter-national norms on the subject and it is not necessary to make a new arrangement in place of the revoked provision of the Surname Law in accordance with the article 90/5 of the Constitution which the international treaties have in force of law. In this present case, the Constitutional Court ruled that there had been a violation of the prohibition of discrimi-nation in respect of Articles 20 and 10 of the Constitution.In this study, the reflection of this issue to administrative law shall be discussed on the basis of judicial process.