Cabranes said the "pivotal issue" in the case was whether the Turkish court actually exercised its authority as defined by the convention "either by granting sole custody to the Mother, or by redefining the parents' respective rights such that the Mother could take the children to the United States without breaching the Father's custody rights."
Swain's conclusion that the father retained custody rights under Turkish law, Cabranes said, was "well-founded," as the mother could not point to a Turkish court order "explicitly recognizing her sole custody of the children."
On the question of whether ICARA creates a federal right of action to pursue access rights, Cabranes said the Second Circuit disagreed with the Fourth in Cantor v. Cohen, 442 F.3d 196 (2006).
"The statutory basis for a federal right of action to enforce access rights under the Hague Convention could hardly be clearer," he said. "According to the enacting legislation, '[t]he courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the [Hague] Convention.'"
He also said that §11603(a) outlines actions falling within that category, including judicial proceedings "for the return of a child or for arrangement for organizing or securing the effective exercise of rights of access to a child."
The Fourth Circuit in Cohen, Cabranes said, interpreted Article 21 of the Hague Convention "as stating that access rights can only be vindicated by applying to the State Department."
"Article 21, however, provides that efforts to secure rights of access 'may' be initiated through an application to a country's Central Authority, not that they 'may only' be pursued in this way," he said, adding later, "Bolstering our conclusion is the apparent lack of any administrative apparatus for enforcing rights of access."
But the circuit held that awarding costs was "clearly inappropriate given the circumstances of this case," in part that there were several orders from more than one Turkish court.
Although the mother's removal of the children deprived the father of certain custody rights under Turkish law, Cabranes said, "Turkish courts repeatedly implied prior to the Mother's removal of the children from Turkey in November 2011 that the children could live with their mother in the United States."
While the orders of the Turkish courts "did not justify the Mother's removal of the children to the United States, they nonetheless suggest that her actions" were not motivated by the desire to shop for a friendlier forum, Cabranes said.