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Wednesday, March 21, 2018

Leonard v Lentz, 2017 WL 6887535 ( N.D. Iowa, 2017)[Turkey] [Exercise of Rights of custody] [Petition denied]

In Leonard v Lentz, 2017 WL 6887535 ( N.D. Iowa, 2017) the District Court denied the  Petition by Ozgur Can Leonard for return of his three children to the Republic of Turkey finding that he did not establish a prima facie case..

Both petitioner and respondent were born in Istanbul, Turkey. Petitioner is a dual citizen of Turkey and the United States.  Respondent is a United States citizen but was raised in, and spent most of her life in, Istanbul, Turkey. . On May 29, 2014, petitioner and respondent were married in Turkey. Petitioner and respondent established their marital home in Gokceada, a Turkish island comprising part of the Canakkale Province... In March of 2015, while residing in Gokceada with petitioner, respondent gave birth to petitioner’s son, I.Y.L. In 2016 respondent gave birth to E.M.L. and S.M.L. Following respondent’s discharge from the hospital after giving birth, respondent chose to reside with her parents, rather than return to Gokceada. (Id.).

Immediately following their birth, E.M.L. and S.M.L. were admitted to the Newborn Intensive Care Unit (“NICU”). (Id.). E.M.L. was diagnosed with End–Stage Renal Disease (“ESRD”) and required surgery. On June 14, 2016, respondent filed for divorce in the Istanbul 15th Family Court (“Turkish Family Court”).  In July of 2016, respondent sought an ex parte protective order against petitioner from the Turkish Family Court, alleging that petitioner was not caring for the children, was harassing her with phone calls and messages, and was pressuring her to return to Gokceada from Istanbul. (Id.). On July 11, 2016, the Turkish court issued a protective order, providing, inter alia, that petitioner not approach respondent’s place of residence and cease communications with respondent. (Id. at 10; see also Ex. 6, Doc. 85–7). The protective order did not place any limits on petitioner’s contact with the children. Respondent applied for United States passports for her children and on July 15, 2016, United States passports were issued to all three children. On August 12, 2016, the Turkish Family Court issued a temporary injunction, ordering the children to remain in the jurisdiction during the pendency of the divorce proceedings and further issued an order to all borders to prevent the children’s removal from the jurisdiction without petitioner’s consent. Respondent contended that when she removed the children from Turkey on August 13, 2016, she was unaware of the ne exeat order, and no evidence has been presented to the contrary. On or about August 13, 2016, respondent traveled to the United States with the children, removing them from the jurisdiction. On August 24, 2016, petitioner submitted a request to return the children to the United States Department of State pursuant to the Hague Convention.

 Upon coming to the United States, respondent brought the children to Iowa and had been residing in Eagle Grove, Iowa since... E.M.L. was thereafter admitted to the University of Iowa Health Care system (“UIHC”) in Iowa City, Iowa where she remained from August 15, 2016, through August 18, 2016. On August 21, 2016, respondent emailed petitioner and indicated that “E.M.L.... is just as active and really on par as far as development [when compared to S.M.L.].” (Id.). Following this brief communication, respondent deleted her email account. UIHC records from August 25, 2016, corroborate respondent’s statement to petitioner.  In October of 2016, E.M.L. was again hospitalized at UIHC and had a feeding tube inserted; E.M.L. had also contracted peritonitis.3  Petitioner has requested the Turkish Family Court to review the medical records in this case to determine the severity of E.M.L.’s medical condition. Since early 2017, petitioner has been in contact with one or more of E.M.L.’s physicians at UIHC regarding E.M.L.’s health. The divorce proceedings in the Turkish Family Court were ongoing and no formal divorce decree or custodial order had been entered.

The Court found that the children were habitual residents of Turkey and because under Turkish law, parents of a child share custody of the child “together as long as marriage lasts.” petitioner did have custodial rights at the time of the children’s removal and continued to have those custodial rights during their retention in the United States.

The Court found that custodial rights bestowed upon petitioner were governed by Turkish law, as set forth in the Convention. Petitioner only alleged he was exercising two such custodial rights at the time of the children’s removal from Turkey: 1) the right to dictate, together with the child’s mother, whether the child may leave the home; and 2) the right to decide the child’s religious education. (Turkish Civil Code (providing “[t]he child cannot leave the house without taking his/her parents’ consent ....” and “[p]arents shall have the right to decide on the child’s religious education.”)).

The Court pointed out that it was bound by Turkish law with respect to whether petitioner was exercising his custodial rights. Larbie, 690 F.3d at 307. Under Turkish law, when one parent is deprived of custody of his children, that parent continues to bear the obligation to provide financial support for the children’s care and educational expenses. It follows that providing financial support for one’s children is an obligation under Turkish law, rather than a custodial right. Thus, petitioner’s willingness and seeming ability to provide financial support for his children could not provide support for his exercise of custodial rights.

Bearing in mind petitioner’s obligation to establish the violation of his custodial rights as part of petitioner’s prima facie case, the Court found petitioner was not exercising these rights and would not have exercised these rights had the children not been removed from Turkey. Therefore, the Court was unable to find petitioner made a prima facie case under the Hague Convention. Because petitioner had not made a prima facie showing, there was no basis upon which the Court should order the return of the children to Turkey, and the Court would not do so.

Given the complicated nature of the case, the Court found it appropriate to further analyze whether legal grounds existed to order the children’s return to Turkey, in the event a reviewing Court found the Court’s conclusion that petitioner did not establish a prima facie case erroneous.

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