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Second Circuit Finds Right to Sue to Enforce Custody Treaty
New York Law Journal
A statute governing international child custody disputes creates a federal right of action to enforce access rights under an international convention, the U.S. Court of Appeals for the Second Circuit has ruled.
The circuit said that parents can sue in U.S. courts to vindicate access rights under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §11603(b), rejecting the argument that the U.S. State Department is the only avenue for pursuing a remedy under the Hague Convention's Civil Aspects of International Child Abduction.
Judges Pierre Leval, Jose Cabranes and Robert Sack held in Ozaltin v. Ozaltin, 12-2371-cv, that Southern District of New York Judge Laura Taylor Swain correctly ruled in favor of a father in Turkey who had joint custody of his two young children and wanted to visit them in the United States and in Turkey.
The mother, Zeynep Tekiner Ozaltin, had claimed that she left Turkey in November 2011 with her two daughters, now ages 7 and 9, after a heated argument over the alleged drinking problem of the father, Nurettin Ozaltin. She also claimed the father threatened her and told her to leave.
On March 30, 2012, a Turkish court held that the parents had joint custody, that the father could visit the children in the United States and that the children should be returned to Turkey temporarily to facilitate a personal relationship with the father.
The father filed suit to enforce the order in the Southern District, setting the stage for Swain's rulings. The judge ruled that the mother had to return the two children to Turkey on July 15, 2012, as well as allow the father to visit with the children on alternate weekends in the United States before their return to Turkey. Swain also ruled that the mother had to pay the father's necessary expenses in bringing the suit.
The mother abided by the order while she appealed to the Second Circuit, where she argued that her removal of the children from Turkey was not "wrongful," that Swain lacked jurisdiction to consider the access issue and that the awarding of expenses was improper.
After hearing oral arguments on October 23, 2012, the circuit on February 11 upheld Swain on the return of the children to Turkey and the access issue under ICARA, which implements the Hague Convention. The court reversed, however, on the awarding of expenses.
Writing for the panel, Cabranes explained that the provisions of the convention for the prompt return of wrongfully removed children are designed to avert forum-shopping by a parent who tries to take the children to a more favorable jurisdiction.
The focus, he said, is not on resolving the underlying custody dispute but on whether, out of deference to foreign legal systems, a child should be returned to his country of habitual residence for custody proceedings.
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.
Bonnie Rabin of Cohen Rabin Stine Schumann represented the father.
"We are immensely relieved for our clients and the children, but we are also very happy that the court focused on the notion of expanding custodial rights under the Hague," Rabin said on Wednesday. "Especially in the global society that we now have, this gives parents the protection they need against the fear of fleeing parents or parents who don't return after a vacation or another stay."
Arun S. Subramanian of Susman Godfrey represented Zeynep Tekiner Ozaltin.
Subramanian said the outcome was "very favorable for our clients" because the children, who are American citizens, had already returned to Turkey and Turkish courts will make the ultimate determination, "which is our clients' wish in the first place."
Subramanian said the other side had asked for "astronomical" costs in the neighborhood of $700,000 and, on remand, Swain has been directed to conduct a cost analysis that is tempered by the mitigating circumstances cited by the circuit.