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Monday, June 18, 2012

Ozaltin v Ozaltin, Slip Copy, 2012 WL 2026443 (S.D.N.Y.) [Turkey] [Well-Settled] [Rights of access]

In Ozaltin v Ozaltin, Slip Copy, 2012 WL 2026443 (S.D.N.Y.) Nurettin Ozaltin filed a Petition on March 30,2012 for the return of his two minor children, S.E.O. and Y.O., to Turkey, and the enforcement of court-ordered visitation so long as the children remain in the United States. On April 2, 2012, the Court issued an order, directing Respondent Zeynep Tekiner Ozaltin to show cause as to why the Petition should not be granted. On April 30, 2012, and May 1, 2012, the parties appeared before the Court for an evidentiary hearing.

Both Petitioner and Respondent were dual citizens of Turkey and the United States. They were married on March 24, 2001, and had two daughters, S.E.O. (aged 8) and Y.O. (aged 6). Both children were born in New York and were also dual citizens of Turkey and the United States. Until December 22, 2010, the parties and the Children resided primarily in Turkey, first in Ankara and then in Istanbul. The Children regularly attended school in Turkey.

Respondent alleged that, on December 21, 2010, she and Petitioner had an argument about his drinking problem. During the argument, Petitioner told Respondent to take the Children and get out of the house. He warned her that, if  she did not do so, he would fire the staff, close the house and cut her off financially. In her testimony at the hearing, Respondent further alleged that Petitioner shoved
her and threatened to kill her. The next day, December 22, 2010, Respondent decided to take the Children to New York for the holidays, and purchased round trip tickets for a flight out of Turkey. Respondent alleged that she called Petitioner from the Frankfurt airport during a layover to inform him that she was taking the Children to New York, and that Petitioner responded with words to the effect of "fine, stay there." Petitioner denied that the December 21, 2010, encounter and December 22, 2010, conversation ever took place. Since December 22, 2010, Respondent and the Children had been living in New York City.

On January 7, 2011, Petitioner filed an application, pursuant to the Hague  Convention, with the Turkish Ministry of Justice, seeking the return of the Children from the United States to Turkey. On January 11, 2011, Respondent, acting through her Turkish attorney, applied for an order of protection against Petitioner. The 2d Uskudar Family Court issued an ex parte order of protection, directing Petitioner to refrain from using violence or threatening language against Respondent, from damaging the personal belongings of other family members, and from disturbing either Respondent or the Children by communication. On February 9, 2011, Respondent commenced a divorce action against Petitioner in the 3d Uskudar Family Court. Petitioner filed a cross-complaint for divorce. The divorce proceedings were currently pending.

On March 22, 2011, the Turkish Court ordered Petitioner to pay Respondent temporary alimony, of 4000 TL for the Respondent, and 3000 TL for each of the children. On May 13, 2011, Petitioner requested that the Turkish Court grant him provisional custody of the Children. The court rejected this request, but issued an order granting Petitioner overnight visitation with the Children, in the United States. Petitioner exercised his visitation rights several times between May 13, 2011, and August 2011, traveling to the United States to see the Children. On July 28, 2011, the Turkish Court issued an order granting Petitioner a two-week visitation period with the Children. On August 12, 2011, the Turkish Court issued an additional order, allowing Petitioner to take the Children outside the United States during the two weeks of visitation, and directing Respondent to give Petitioner the Children's passports. In a September 14, 2011, order, the Turkish Court specifically found that Petitioner "behaved contrary to good will and intentions by not delivering the children [to Respondent] on the appointed date, and that the children needs [sic] the care and compassion of their mothers [sic]." Petitioner ultimately turned the Children over to Respondent's representative on September 18, 2011, but the Children and Respondent remained in Turkey until November 4, 2011. On March 30, 2012, the Turkish Court again denied Petitioner's request for provisional custody of the Children, but reaffirmed the previously established visitation arrangements.

Throughout their lives, the Children had regularly traveled to and spent extended periods of time in New York. The Children were currently enrolled in school in New York and were also involved in various extracurricular activities. They had a close network of friends and family in New York, including Respondent's mother and sisters. Petitioner presently seeks the following permanent relief: 1) An order, pursuant to Article 12 of the Convention, directing the return of the Children to Turkey; 2) an order, pursuant to Article 21 of the Convention, enforcing, so long as the Children remain in the United States, Petitioner's rights of access to the Children (as granted by the Turkish Court); and 3) an order, pursuant to Article 26 of the Convention, directing Respondent to pay the costs incurred by Petitioner in connection with this action.

The Court found that, until December 22, 2010, Turkey was the Children's habitual residence. While the children traveled regularly to the United States, their primary residence was in Turkey, they attended school in Turkey, and their physicians, caretakers, and several extended family members were located in Turkey, The Court further finds that, despite a heavy business travel schedule, Petitioner was exercising custody rights at the time of the alleged wrongful retention.

The first issue was whether Respondent's removal of the children on December 22, 2010, and subsequent retention of them in the United States was wrongful. All of the proffered evidence indicated that Petitioner at no time consented to relocation of the Children's residence to New York. Petitioner has contacted the Turkish Ministry of Justice, sought custody of the Children in Turkish courts, and pursued his petition in the Court. Even if Petitioner approved the continuation of the Children's travel to New York, which was already in progress at the time Respondent allegedly placed the call from the Frankfurt airport, it was clear from the record that Petitioner neither consented or acquiesced in Respondent's subsequent retention of the Children in New York since that time.

Respondent's next argument was that her retention of the Children in New York was not wrongful because she had provisional custody of the Children, and so her retention did not violate Petitioner's custody rights. Respondent bases this reasoning on two premises-first, that Turkish law does not recognize the concept of joint custody and only awards one parent custody of a child upon separation; and second, that the Turkish Court had entered several orders denying Petitioner provisional custody. Thus, Respondent argued, the court orders denying Petitioner's requests for provisional
custody effectively granted Respondent provisional custody.

The Court observed that Turkish Civil Code Article 336 provides that: As long as the mother and the father are married, the custody of children is shared equally between the mother and the father. If they separate or divorce, the judge may decide to give the custody of the children to one of the spouses. In the event of the death of one of the spouses, custody belongs to the surviving spouse. Both Petitioner and Respondent proffered testimony by Turkish legal experts as to the parties' respective custody rights. Respondent's expert witness testified that, once parties separate, a Turkish court must grant provisional custody of the children to one parent or the other. He testified in a conclusory fashion that the various orders issued by the Turkish Court award Respondent provisional custody of the Children and that, by granting Petitioner visitation rights in the United States, the Turkish Court implicitly acknowledged that the Children need not be returned to Turkey. In contrast, Petitioner's expert testified that, during the pendency of divorce proceedings, Turkish courts will typically order children to live with one spouse, but that such an order is not tantamount to a grant of provisional custody, and does nothing to alter the custodial rights of the non-resident spouse. He testified that the orders issued by the Turkish Court to date provided only that the Children would live with Respondent during the divorce proceedings and should not be read to "constitute or 'imply' a termination or suspension of [Petitioner's] custodial rights." He further testified that the Turkish Court lacked the power to order Respondent to return to the United States with the Children, because of the pending Hague Convention petition. Petitioner's Turkish divorce lawyer, corroborated this point, testifying that, at the parties' first appearance in the divorce proceeding, she had advised the Turkish Court that Petitioner had filed a Hague Convention application with the Turkish Ministry of Justice and that the Turkish Court had instructed her to continue with that application process. The Ministry, which is Turkey's designated Central Authority for purposes of the Hague Convention, indicated that Petitioner and Respondent had joint custody of the Children: on April 5, 2012, Judge Seval Arslan of the Ministry wrote to the Department of State, the United States' designated Central Authority, and stated 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 [sic] to exercise those rights. In this context under Articles 3 and 12 of the Hague Convention, the [ mother] is in breach of rights of the [sic] custody under the law of Turkey in which the children were habitually resident before the removal,"

Based on the plain language of the Turkish Civil Code's joint custody provision and the evidence concerning the parties' relevant actions and interactions, the Court concluded that Petitioner had met his burden of showing that Respondent's retention of the Children in the United States is wrongful under the Convention.

As more than one year elapsed since Respondent originally removed the children from Turkey in December 2010 the Court was not obliged to order the Children's  return to Turkey if Respondent could show that the Children are so well settled in New  York that, "at least inferentially, return would be disruptive with likely harmful effects." In  re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). The affirmative defense that a child is  well settled in its new environment is meant to be narrow. See Lozano, 809 F.Supp.2d  at 218. Furthermore, "even where the respondent meets his or her burden to show that  [the] exception applies, the court may nevertheless exercise discretion to order
repatriation."Id. (internal quotations omitted); see also Friedrich v. Friedrich, 78 F.3d  1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention").

The Court observed that some of the factors courts consider in determining whether a child is well settled include: 1) the age of the child; 2) the stability of the child's residence in the new environment; 3) whether the child attends school or day care consistently; 4) whether the child attends church (or another religious institution) regularly; 5) the stability of the mother's employment; and 6) whether the child has friends and relatives in the new area. Lozano, 809 F.Supp.2d at 230-31.

S.E.O. and Y.O. were ages eight and six, respectively, and spent the majority of their lives in Turkey. While Respondent argued that the Children were familiar with New York, their residence in New York was not continuous since the December 2010  removal from Turkey, as the Children spent approximately eight months in New York  (December 22, 2010 to August 18, 2011), and then spent two and a half months in  Turkey (August 18, 2011 to November 4, 2011), before returning to the United States  for another five months (November 4, 2011 to March 30, 2010) before this action was
commenced. The children regularly traveled between Turkey and New York throughout their lives, and were accustomed to spending several months in both countries. The Children attended school consistently in New York, but they also attended school consistently in Turkey and, if returned to Turkey, would re-enroll in their former school. Similarly, while the Children had numerous friends and family in New York, the same was true of their relationships in Turkey. Given the financial resources available to both parties, the stability of Respondent's employment in New York was irrelevant. Considering all these factors, the Court found that Respondent failed to demonstrate by a preponderance of the evidence that the children were so well-settled in New York that returning them to Turkey would be "disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d at 152.

The Court granted th ePetition insofar as it sought the return of the Children to Turkey.

Respondent contended that the Court lacked jurisdiction to enforce Petitioner's rights of  access, relying on Article 21 of the Convention, which states that "[a]n application to  make arrangements for organising 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." Respondent cited two cases, Wiezel v. Wiezel-Tyrnauer, 388 F.Supp.2d 206 (S.D.N.Y.2005) and Bromley v. Bromley, 30 F.Supp.2d 857 (E.D.Pa.1998), In Wiezel, the court considered whether it "had jurisdiction over an Article 12 claim by a petitioning parent who claimed to have custody rights but is seeking as, a remedy, only visitation and other access  rights." 388 F.Supp.2d at 211. The court concluded that it lacked such jurisdiction, and  that "the Convention sets forth separate procedures by which signatory nations may enforce access rights of petitioning parents, and those procedures do not involve the  federal courts. Similarly, in Bromley, the court concluded that "the plain language of
[Article 21] of the Convention does not provide federal courts with jurisdiction over access rights." 30 F.Supp.2d at 860. In neither case, however, was the petitioning parent alleging wrongful removal of a child under Article 12 and seeking, as ancillary relief, rights of access as ordered by a court in the country of habitual residence.  Furthermore, ICARA specifically authorizes a parent to "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of  access to a child [by] commencing a civil action by filing a petition for the relief sought in
any court which has jurisdiction of such action." 42 U.S.C.A. 11603(b). Given the language of the statute, the Court found that it had jurisdiction to enforce Petitioner's rights of access to the Children, and ordered Respondent to comply with the visitation rights set forth by the Turkish Court's May 13, 2011, Order, so long as the Children remained in the United States.

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