image: Artville Illustration
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.
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