In Ozaltin v Ozaltin, 708 F.3d 355 (2d Cir. 2013), in
December 2010, when the Ozaltins stopped cohabitating in Turkey, the Mother took
the children to reside with her in New York City. ) Petitioner-appellee Nurettin
Ozaltin ("the Father") brought suit seeking the return of his two minor children
to Turkey, as well as an order enforcing his rights under Turkish law to visit
the children as long as they stayed in the United States with their mother,
respondent-appellant Zeynep Tekiner Ozaltin ("the Mother"). In an order dated
June 5, 2012, the district court ordered that the Mother return the children to
Turkey by July 15, 2012; allow the Father to visit with the children in the
United States on alternating weekends prior to their return to Turkey (the
"access order") in compliance with a prior order of a Turkish court; and (3) pay
the Father's necessary expenses in bringing the suit (the "costs award"). In re
S.E.O., 873 F.Supp.2d 536, 546 (S.D.N.Y.2012). Although the Mother returned the
children to Turkey on July 15, 2012, she appealed from the District Court's
order arguing that her removal of the children from Turkey in 2011 was not
"wrongful" under the terms of the Hague Convention because it was authorized by
the Third Family Court in Uskudar (the "Third Family Court")-a Turkish court
that has been handling the Ozaltins' divorce and child-custody proceedings since
February 9, 2011; that the District Court lacked jurisdiction to consider the
Father's claim for visitation; and that awarding necessary expenses would be
improper both because she should prevail on the merits with respect to the
return order, and because of the particular circumstances of this suit.
The Second Circuit affirmed the District Court's return order and vacated
the costs award. It held that (1) The petitioner met his burden of showing that
he retained custody rights under Turkish law, and that respondent ( Mother)
removed the children from Turkey in interference with his exercise of those
rights. (2) Federal law creates a private right of action to enforce access
rights protected under the Hague Convention. See 42 U.S.C. § 11603(b). (3) When
a district court considers awarding costs to a prevailing petitioner who obtains
a return order under the Hague Convention, the court shall award "necessary
expenses" relating to the action unless doing so would be "clearly
inappropriate." 42 U.S.C. § 11607(b)(3). This standard is discretionary in
nature and is governed by general equitable principles. (4) In the
circumstances of this case, an award of all necessary expenses would be "clearly
inappropriate."It remanded the cause to the District Court to determine
appropriate costs in the first instance.
Nurettin and Zeynep Ozaltin (the Father and Mother, respectively) were
dual citizens of Turkey and the United States. They were married in 2001 and had
two daughters, S.E.O. (age 9) and Y.O. (currently, age 7), who were also dual
citizens of Turkey and the United States. Prior to December 2010, the children
resided primarily in Turkey, where they attended school. The Mother alleged that
in December 2010, she and the Father got into a heated argument about his
purported drinking problem, and that during that argument he threatened her and
told her to take their two children and leave. Within a day, the Mother and the
children flew to New York City, where the Mother had family. The Mother alleged
that during a layover in Europe, she spoke on the phone with the Father, who
angrily told her that she and the children should stay in the United States.
About two weeks later, on January 7, 2011, the Father filed an application with
the Turkish Ministry of Justice seeking the return of the children to Turkey
pursuant to the Hague Convention. On February 9, 2011, the Mother initiated
divorce proceedings in the Third Family Court in Uskudar. In May 2011, the
Father petitioned the Third Family Court for "the court to provisionally grant
[him] the parental custody of the children." In the alternative, he requested
"an order that [would] require [ ] the children to be brought to Turkey and
[would] grant[ ] [him] visitation rights." On May 13, 2011, the Third Family
Court declared that the Father's "request for grant of provisionary parental
custody is rejected at this point," but it granted him "the possession of the
children from 10 am on Saturdays until 12 pm on Sundays every first and third
weeks of the month if he goes to the USA." The Father exercised his visitation
rights in New York several times between May and August 2011. On March 30, 2012,
the Third Family Court rejected another request by the Father for temporary
custody, but it ordered that he be allowed to visit with the children on
alternating weekends in the United States pursuant to the same visitation
schedule that the court had ordered on May 13, 2011.
On March 30, 2012 the Father filed this action under 42 U.S.C. § 11603(b),
seeking an order enforcing his visitation rights, pursuant to Article 21 of the
Hague Convention. Article 21 provides:
An application to make arrangements for organizing or securing the
effective exercise of rights of access may be presented to the Central
Authorities of the Contracting States in the same way as an application for the
return of a child. The Central Authorities are bound by the obligations of
co-operation which are set forth in Article 7 to promote the peaceful enjoyment
of access rights and the fulfillment of any conditions to which the exercise of
those rights may be subject. The Central Authorities shall take steps to remove,
as far as possible, all obstacles to the exercise of such rights. The Central
Authorities, either directly or through intermediaries, may initiate or assist
in the institution of proceedings with a view to organizing or protecting these
rights and securing respect for the conditions to which the exercise of these
rights may be subject.
The father also sought an order requiring the Mother to return the
children to Turkey, pursuant to Article 12 of the Hague Convention; and a costs
award in an amount to be determined at the end of the litigation, pursuant to
Article 26 of the Hague Convention. Article 26 provides, in relevant part:
Upon ordering the return of a child or issuing an order concerning rights
of access under this Convention, the judicial or administrative authorities may,
where appropriate, direct the person who removed or retained the child, or who
prevented the exercise of rights of access, to pay necessary expenses incurred
by or on behalf of the applicant, including travel expenses, any costs incurred
or payments made for locating the child, the costs of legal representation of
the applicant, and those of returning the child.
In April and May of 2012 the District Court held evidentiary hearings.
Both the Father and the Mother proffered testimony by Turkish legal experts as
to the parties' respective custody rights. The District Court issued it’s a
memorandum opinion and order on June 5, 2012, requiring the Mother to (1) comply
with the Turkish court's visitation order, (2) return the children to Turkey by
July 15, 2012, and (3) pay the Father for any "necessary expenses" incurred in
connection with the suit.
On July 15, 2012, the Mother returned the children to Turkey pursuant to
the District Court's order. Since then, Turkish courts have issued several
orders pertinent to questions raised in this appeal. On September 14, 2012, the
Court of Appeals granted the Father's unopposed motion to take judicial notice
of these recent Turkish orders.
The Court of Appeals observed that for the purposes of this appeal, the
pivotal issue was whether the Third Family Court actually exercised its
authority to award custody to one of the parties, either by granting sole
custody rights 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. (Turkish Civil Code available at http:// www. hcch. net/ upload/ abduct
2011 cp_ tr 1. pdf (website of the Hague Conference on Private International
Law). It found that the district Court's conclusion that the Father retained
custody rights under Turkish law was well-founded. The Turkish Ministry of
Justice-the Turkish "Central Authority" within the meaning of the Hague
Convention submitted a letter to the U.S. Department of State explaining that
"although there is a pending divorce case between the parents before the Family
Court in Uskudar, the parents still have joint-custody rights and at the time of
the wrongful removal they also use[d] to exercise those rights." The Ministry of
Justice explained that the Mother, therefore, was "in breach of [the Father's]
rights of [ ] custody under the law of Turkey in which the children were
habitually resident before the removal." The Mother disputed this conclusion,
arguing that the Ministry of Justice was not aware of the various orders of the
Third Family Court in Uskudar purportedly granting (or at least endorsing) her
custody of the children. Be that as it may,
a removal under the Hague Convention can still be "wrongful" even if it is
lawful. The evidence offered at trial showed that the Father retained custody
rights-including the right to determine the children's residence-under Turkish
law, even if the Mother had primary custody of the children. Most importantly,
the Mother did not point to an order of the Third Family Court explicitly
recognizing her sole custody of the children, or explicitly recognizing her
right to remove the children to the United States without breaching the custody
rights of the Father. The Court held that he children were wrongfully removed
under the Hague Convention, and it affirmed the District Court's return order.
The District Court awarded to the Father "any necessary costs ... incurred
in connection with this action. The Mother argued that "federal courts lack
subject matter jurisdiction over claims seeking to enforce rights of access."
She claimed, petitioners may seek to enforce rights of access only in state
court or through the State Department, which is the United States's designated
"Central Authority" under the Hague Convention. The Court found that the
Mother's argument was not jurisdictional in nature but instead goes to whether
42 USC § 11603(b) creates a federal right of action. Disagreeing with the Fourth
Circuit, which held that it does not, (Cantor v. Cohen, 442 F.3d 196 (4th
Cir.2006), it found that the statutory basis for a federal right of action to
enforce access rights under the Hague Convention was in the implementing
legislation. 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." 42 U.S.C. §
11603(a). The statute then announces the actions falling within that category:
Any person seeking to initiate judicial proceedings under the Convention for the
return of a child or for arrangements for organizing or securing the effective
exercise of rights of access to a child may do so by commencing a civil action
by filing a petition for the relief sought in any court which has jurisdiction
of such action and which is authorized to exercise its jurisdiction in the place
where the child is located at the time the petition is filed.. 42 USC §
11603(b). The statute provides for the relevant burden of proof in access cases:
"A petitioner in an action brought under subsection (b) of this section shall
establish by a preponderance of the evidence ...in the case of an action for
arrangements for organizing or securing the effective exercise of rights of
access, that the petitioner has such rights." 42 USC § 11603(e)(1)(B) These
statutory provisions straightforwardly establish that a petitioner may "initiate
judicial proceedings under the Convention ... for organizing or securing the
effective exercise of rights of access to a child," and that "United States
district courts shall have concurrent original jurisdiction" over such actions.
Moreover, § 11603(e)(1)(B) underscores that actions arising under the Convention
include "an action for arrangements for organizing or securing the effective
exercise of rights of access." Accordingly, s 11603 unambiguously creates a
federal right of action to secure the effective exercise of rights of access
protected under the Hague Convention. The Hague Convention explicitly recognizes
that if a Contracting State provides a judicial forum, petitioners seeking to
enforce access rights may initiate judicial proceedings directly: This
Convention shall not preclude any person ... who claims that there has been a
breach of custody or access rights within the meaning of Article 3 or 21 from
applying directly to the judicial or administrative authorities of a Contracting
State, whether or not under the provisions of this Convention. Hague Convention,
art. 29. Thus, initiating a petition with a State's Central Authority "is a
nonexclusive remedy" for enforcing access rights. Article 29 permits the person
who claims a breach of custody or access rights, as defined by Articles 3 and
21, to bypass the Convention completely,
by invoking other applicable laws or procedures, such as provisions in
ICARA. In sum, even though not required under Article 21, federal law in the
United States provides an avenue for aggrieved parties to seek judicial relief
directly in a federal district court or an appropriate state court.
The Court of Appeals observed that the Hague Convention provides that "[u]pon
ordering the return of a child or issuing an order concerning rights of access
under this Convention, the judicial or administrative authorities may, where
appropriate, direct the person who removed or retained the child ... to pay
necessary expenses incurred by ... the applicant." Hague Convention, art. 26.
These "necessary expenses" may include "travel expenses, any costs incurred or
payments made for locating the child, the costs of legal representation of the
applicant, and those of returning the child." ICARA provides that: Any court
ordering the return of a child pursuant to an action brought under section 11603
of this title shall order the respondent to pay necessary expenses incurred by
or on behalf of the petitioner, including court costs, legal fees, foster home
or other care during the course of proceedings in the action, and transportation
costs related to the return of the child, unless the respondent establishes that
such order would be clearly inappropriate. Although Article 26 of the Hague
Convention provides that a court "may" award "necessary expenses" to a
prevailing petitioner, § 11607(b)(3) shifts the burden onto a losing respondent
in a return action to show why an award of "necessary expenses" would be
"clearly inappropriate." Nonetheless, § 11607(b)(3) retains what we the Court
had previously described as the "equitable" nature of cost awards. Accordingly,
a prevailing petitioner in a return action is presumptively entitled to
necessary costs, subject to the application of equitable principles by the
district court. Absent any statutory guidance to the contrary, the
appropriateness of such costs depends on the same general standards that apply
when "attorney's fees are to be awarded to prevailing parties only as a matter
of the court's discretion." There is no precise rule or formula for making these
determinations, but instead equitable discretion should be exercised in light of
the relevant considerations. It vacated the District Court's award of "any
necessary costs [that the Father] incurred in connection with this action," In
re S.E.O., 873 F.Supp.2d at 546, because the Mother had a reasonable basis for
removing the children to the United States. It also had concerns that, contrary
to the spirit of the Hague Convention, the Father may have engaged in forum
shopping with respect to certain aspects of the suit. While the Turkish court
orders did not justify the Mother's removal of the children to the United
States, they nonetheless suggested that her actions did not "run counter to the
Convention's purpose of deterring child abductions by parents who attempt to
find a friendlier forum for deciding custodial disputes." In its view, an award
of full expenses was unwarranted in light of the Mother's reasonable basis for
thinking that she could remove the children from Turkey
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