Yaman v. Yaman, --- F.3d ----, 2013 WL 4827587 (C.A.1 (N.H.)) [Turkey] [Now Settled][Equitable Tolling][Guardian Ad Litem]

In Yaman v. Yaman, --- F.3d ----, 2013 WL 4827587 (C.A.1 (N.H.)) the district court denied the petition of Ismail Ozgur Yaman ("Yaman") for return of his two daughters, E.Y., now 10, and K.Y., now 11, to Turkey, pursuant to the Hague Convention. There was no question that the habitual residence of the children was Turkey, that Yaman had been given custody of the children by the Turkish courts, that their American mother, Linda Margherita Yaman, a/k/a Linda Margherita Polizzi ("Polizzi"), wrongfully removed the children in 2007 and then hid them, and that this prevented Yaman from locating them and filing his petition for return until he recently found them. The First Circuit affirmed. It held that the Convention does not allow a federal district court to toll equitably the one-year period that must elapse before a parent can assert the "now settled" defense. The First Circuit also held that the Convention does not prevent the district court from ordering the return of "now settled" children, and the court erred in holding otherwise. The court, at that point, should analyze the return question under principles of equity consistent with the Convention's purposes, an analysis it undertook in its alternative holding.

On June 12, 2012, Yaman filed a petition in the District Court for the District of New Hampshire, requesting an order to return the two children to Turkey. Yaman also requested provisional remedies to ensure that both Polizzi and the two children remained in New Hampshire throughout the course of the proceedings. On June 15, 2012, the district court ordered provisional remedies and appointed a guardian ad litem to issue a report on the two children's behalf. One month before the court's scheduled evidentiary hearing, Yaman filed a motion to preclude Polizzi from asserting the affirmative "now settled" defense under Article 12 of the Convention. Yaman argued that Polizzi "should not be permitted to avail herself of t[hat] defense where she has, for years, actively and egregiously attempted to evade legal proceedings." The district court denied the motion. Yaman v. Yaman, 919 F.Supp.2d 189, 198 (D.N.H.2013). In an order dated January 28, 2013, the district court explained that neither the text nor the drafting history of the Convention supported the argument that Article 12's one-year period was subject to equitable tolling. Moreover, the district court observed, the Executive Branch had taken the position that equitable tolling does not apply. The district court noted that the judicial decisions of other signatory nations supported the proposition that Article 12's "now settled" defense does not equitably toll.

On January 22, 2013, the district court commenced a three-day bench trial, which included evening hearings. The court heard testimony from the mother about how settled the children were in the community, their friendships, their schooling, and her concealment of their location, among other things. The court also heard testimony from the guardian ad litem for the children, who testified that his interviews with their teachers showed no red flags, and that other witnesses confirmed that the children were assimilating well. The guardian ad litem, after a thoughtful explanation, concluded the children were unable to provide a mature judgment about where they should live. The court also considered the guardian ad litem's formal report and those of experts concerning each of the children. The district court denied Yaman's petition after trial. Yaman had made out his prima facie case for return, with Polizzi conceding both that she had removed the children in violation of Yaman's custody rights and that the children were habitually resident in Turkey immediately before they were removed. See Convention, art. 3. The district court also found that Polizzi had concealed the children after removal, and that Yaman had been diligent in his efforts to assert his rights under the Convention. The district court nevertheless denied the petition for return. The district court rejected Polizzi's argument that, pursuant to Article 13 of the Convention, return should be refused because it would pose a "grave risk" of harm to the children. The district court concluded that, in its best judgment, Polizzi's actions were ones of a "concerned but misguided mother." The district court found that the children were "now settled," applying the totality of the circumstances test articulated by the Ninth Circuit in Duarte, 526 F.3d at 576. The district court assigned particular weight to the guardian ad litem's testimony and report, describing it as "the best evidence on this point." Having found that the children were "now settled," the district court went on to hold that, in light of this finding, it lacked discretion to order the children's return under the language of Article 12. The court went on to hold in the alternative that, even if it did have authority to order the return of a child "now settled," it would not exercise that authority here. The district court articulated various considerations in favor of return, including the interest in a child's being "reunited with the parent ... from whom [she] w[as] wrongfully removed," the interest in "effectively punish[ing]" Polizzi, and the interest in "deter[ring] future clever abductors." On the other hand, the district court observed, the two children were of such ages that "attachments in a community [we]re particularly important," remarking "[t]he settlement issue would not be nearly so big in my mind if they were 14 or 15 or if they were three and five." Moreover, the district court noted, although Polizzi had made efforts to conceal the children's location, it "s[aw] very little evidence that she did anything that would be damaging to the ... children's psyche." This was consistent with the district court's more general observation that Polizzi had "acted under a mistaken but well-intentioned belief" regarding the safety of the children. The district court stated that punishing the mother would have, at best, a "very limited" deterrent effect.

The Fist Circuit rejected Yaman’s argument that the one-year period that triggers the availability of Article 12's "now settled" defense is subject to equitable tolling. If found no support in the text of the Convention for that interpretation, nor did it gain support from any extratextual source of evidence. The text of Article 12 does not address equitable tolling explicitly. It does, however, suggest that equitable tolling does not apply. It noted that Article 12 does not use a trigger such as "the date the petitioning parent discovered or could have reasonably discovered the child's location." See Lozano, 697 F.3d at 51 n. 8 ("It would have been a simple matter, if the state parties to the Convention wished to take account of the possibility that an abducting parent might make it difficult for the petitioning parent to discover the child's whereabouts, to run the period ‘from the date that the petitioning parent learned [or, could reasonably have learned] of the child's whereabouts.’ But the drafters did not adopt such language." From the text, it was clear Article 12's one-year period does not operate as a statute of limitations. As the Second Circuit observed in Lozano: Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to her country of habitual residency. 697 F.3d at 52.



Article 12's drafting history further supported the conclusion that the one-year period was not subject to equitable tolling. Courts of other signatory nations have most commonly held that equitable tolling does not apply to the one- year period that triggers the availability of the "now settled" defense. It note that in its carefully reasoned opinion in Lozano, as described, the Second Circuit held that Article 12's one-year period is not subject to equitable tolling. 697 F.3d at 50–55. By contrast, in Furnes v. Reeves, 362 F.3d 702, 723–24 (11th Cir.2004), the Eleventh Circuit considered the one-year period to be a statute of limitations. In Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008), the Ninth Circuit, too, considered the one-year period as a statute of limitations. The Court joined the Second Circuit's views.

The First Circuit agreed with Yaman that the district court erred when it concluded that it lacked authority to order the return of a child found to be "now settled." This conclusion was not supported by the Convention's text or history, and was contrary to the view of the Executive Branch and the views of the other circuits. See Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001) (recognizing discretionary authority to return "now settled" child); see also Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir.2009) (recognizing discretionary authority to return child even if one of Convention's affirmative defenses is established); Miller v. Miller, 240 F.3d 392, 402 (4th Cir.2001) (same); Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) (same); Feder v. Evans–Feder, 63 F.3d 217, 226 (3d Cir .1995) (same). It pointed out that the Second Circuit concluded in Blondin, Article 12 "allows—but does not, of course, require—a judicial or administrative authority to refuse to order the repatriation of a child" just on the basis of settledness. 238 F.3d at 164. In reaching that conclusion, the Second Circuit treated the language of Article 12 as plainly permissive.

The First Circuit added that the language of Article 18 of the Convention reinforced its reading. According to Article 18, "[t]he provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time." Convention, art. 18. Polizzi argued that Article 18 merely serves to clarify that the Convention does not limit whatever power to return an authority might have under other laws. Even if this reading of Article 18 were correct—a point it did not decide—the other powers not limited by Article 18 include the power to order the return of a settled child. It found that power reasonably implicit in both Article 12 and Congress' grant to federal courts of jurisdiction over Hague Convention actions, which it presumed was enacted with awareness of the broad equitable powers that those courts customarily enjoy. A federal court has the more limited authority to order the return of a child who was "wrongfully removed or retained" despite her being "now settled." Courts of other signatory nations have held that the Convention confers upon a court the authority to weigh considerations such as concealment when determining whether to order the return of a child "now settled."

While no other circuit has addressed the "now settled" defense in particular, numerous circuits accept the general proposition that "courts retain the discretion to order return even if one of the [Convention's] exceptions is proven." Feder, 63 F.3d at 226; Miller, 240 F.3d at 402 (quoting Feder ); accord Friedrich, 78 F.3d at 1067 ("[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."); Asvesta, 580 F.3d at 1004 (quoting Friedrich ).

The First Circuit held that the district court erred in finding it had no authority to order the return of a child found to be "now settled." It found that that Article 12 affords the court discretion to dispense with the "settled" inquiry— which can involve a fact-intensive inquiry into the child's living situation—when the court concludes that the circumstances justify ordering return regardless of the outcome of the settlement inquiry. For instance, the conduct of the concealing parent might be so extreme that return is called for irrespective of other circumstances. That authority is underscored by Article 18, which provides that "[t]he provisions of this Chapter [enumerating exceptions] do not limit the power of a judicial or administrative authority to order the return of the child at any time."