Matter of S.E.O. and Y.O., 2013 WL 4564746 (S.D.N.Y.)) [Turkey] [Costs and Expenses] [Clearly Inappropriate]

In Matter of S.E.O. and Y.O., 2013 WL 4564746 (S.D.N.Y.)) Nurettin Ozaltin filed a Petition seeking 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 remained in the United States. After a hearing the district court granted the Father's Petition and directed the Mother to return the children to Turkey. The Court also held that, because it was granting the Father's Petition, "[the Mother] will be required to pay any necessary costs [the Father] incurred in connection with [the] action." On appeal, the Second Circuit affirmed the Court's decision ordering the return of the children to Turkey but vacated the order insofar as it determined that the Mother would be required to pay "any necessary costs," and remanded the action for further proceedings. See Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir.2013). On the Father's renewed application for costs the court denied his application.

In its Ozaltin decision, the Second Circuit clarified that "a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of  equitable principles by the district court," directing lower courts to the equitable standards developed under the Copyright Act's discretionary fee award provision. The district court held that in applying this standard, the district court "must exercise its equitable discretion, balancing a variety [of] factors, including frivolousness, motivation, objective unreasonableness (both in factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and  deterrence." (citing Psihoyos v. John Wiley & Sons, Inc., No. 11 Civ. 1416, 2013 WL 1285153, at *2 (S.D.N.Y. Mar. 29, 2013) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). The district court noted that in vacating its earlier award of "any necessary costs [that the Father] incurred in connection with this action," the Second Circuit found that the Mother had maintained an objectively reasonable legal position throughout the case, and also noted concerns that, by bringing an action in this Court rather than before a Turkish court, the Father may have been forum-shopping, contrary to the purpose of the Hague Convention. Ozaltin, 708 F .3d at 375. The Second Circuit concluded that "it would be clearly inappropriate to award all necessary expenses associated with the Father's action under the Hague Convention."

In light of what it perceived to be the standards articulated in the Second Circuit opinion, the district Court determined that an award of costs to the father was "clearly inappropriate" because the mother had a reasonable basis for removing the children to the United States, and the Father appeared to have engaged in forum-shopping by filing a Hague Convention petition in this district rather than seeking a custody determination from a Turkish Court. In light of this conclusion, the Court did not address the parties' arguments as to their respective financial situations, or the adequacy of the Father's documentation of his expenses.

The district court noted that the Second Circuit found that a series of Turkish court orders implying that the children could live with the Mother in the United States gave the Mother "a reasonable basis for thinking at the time of removing the children to the United States in 2011 that her actions were consistent with Turkish law." Ozaltin, 708 F.3d at 375. After reviewing the various Turkish Court orders, the Court found that the Mother had a reasonable basis for believing that she could remove the children from Turkey and that, although such a mistake of law was not a defense to the return action itself, it is "a relevant equitable factor when considering whether a costs award is
appropriate." See Ozaltin, 708 F.3d at 375-76. The district court also observed that the Second Circuit pointed out its concerns that, by bringing an action in the district Court, the Father may have been forum-shopping, contrary to the purpose of the Hague Convention. In the summer of 2011, during the children's temporary return to Turkey, the Father filed a petition with the Turkish Ministry of Justice to bar the Mother from removing the children from the country. The Ministry responded that, because the children were then in Turkey, no other procedure could be carried out in accordance with the Hague Convention. Ozaltin, 708 F.3d at 376. The Ministry instead directed the Father to make an application to the relevant Turkish court to "take the necessary measures to prevent the residential address of the children [from] be[ing] change[d]."Rather than applying to the Turkish Court for such an order however, the Father waited until the children left Turkey and then filed the Hague petition. After the district Court granted the Father's return petition, the Father returned to the Turkish Court and argued that this Court's order precluded the return of the children to the United States, despite the fact that the order clearly stated that it did not resolve the underlying custody dispute between the parties. The Court found that, unlike the Mother, who "has consistently submitted to the jurisdiction of Turkish courts with respect to all divorce and child-custody matters," the Father appeared to have engaged in forum-shopping by filing a Hague Convention petition in this district rather than seeking a custody determination from a Turkish Court as recommended by the Turkish Ministry of Justice in 2011. See Ozaltin, 708 F.3d at 376. Given the equitable nature of cost awards, the Court concluded that the Mother had met her burden of establishing that awarding any costs to the Father would be clearly inappropriate.