[Turkey] [Habitual residence][rights of
custody] [ne exeat right]
In Tatari v Durust, 2025 WL 327984, Not For Publication, (United
States District Court, E.D. New York, 2025) the district court granted the
Petition of Zuhtu Onur Tatari to have his son, O.T., returned to Turkey.
The issue before the
court was whether or not Tatari and his ex-wife Durust’s divorce decree (“DD”)
gave Tatari rights under Turkish law which the Hague Convention recognizes as
custodial. Although the terms of the Divorce Decree were unambiguous in
awarding Tatari certain custodial rights, the terms were in tension with
Turkish law that does not formally recognize joint custody. The parties, who were married in 2016, had
O.T. in 2018, and divorced in January 2022. The court previously found that
Tatari had shown the first element of his Hague Convention case, that Turkey
was O.T.’s habitual residence at the time Durust and O.T. moved to Brooklyn. In
Turkey, for a married couple to be granted an uncontested divorce, they must
present a signed divorce protocol to the court (Turkish Civil Code (“TCC”) Art.
166/3. The Turkish court must review the protocol, hear the parties’ statements
regarding their decision to divorce and the construction of the protocol, and
decide whether to adjust any provisions of the protocol. Any adjustments by the
judge will be recorded in the divorce decree, which then can be approved by the
court and the parties. The parties submitted a much-negotiated protocol to the
Turkish family court. Tatari testified that he was especially concerned with
the provisions governing visitation, O.T.’s schooling, country of residence,
and healthcare. Durust testified she was most concerned about having sole
custody of O.T. After hearing the parties’ statements and some discussion, the
judge modified the visitation schedule slightly but did not adjust the other
provisions of the Protocol. The Protocol was included in the Divorce Decree
according to TCC Art. 184/5, and the exclusion of the Protocol’s visitation
schedule was noted.
At summary judgment, the parties disputed
the correct translation of Section 3.7. Tatari’s preferred translations obligated
Durust to “obtain the approval and opinion” of Tatari if “she decides to live
abroad together with” O.T., while Durust’s preferred translation obligated her
only to “consult and seek the opinion” of Tatari “where she decides to live
abroad together with” O.T. At trial, Tatari presented two experts, who
testified that his preferred translation was a truer rendition of the original
Turkish. The Court found that Tatari’s preferred translation of Section 3.7 was
more faithful to the Turkish original.
Turning to the remainder of the Divorce
Decree’s recitations in the Protocol, Section 3.8 obligated Durust to “obtain
the approval and opinion of” Tatari “when any decision is required with regards
to the health status” of O.T. In the
fall of 2023, Durust asked Tatari to sign a consent form to renew O.T.’s
American passport, which Tatari refused to do. As a result, Durust filed a
lawsuit in a Turkish court to allow O.T. to receive an American passport
without Tatari’s signature. In her complaint, she explained that the American
consulate officials would require her to get Tatari’s signature even if Durust
has sole custody of O.T. In December 2023, Durust and O.T. traveled to the
Ivory Coast, where she was able to obtain an emergency U.S. passport for O.T.
without Tatari’s signature. Following Durust and O.T.’s return to Turkey,
Tatari filed a petition for custody of O.T. He also sought a preliminary
injunction for custody of O.T. The Turkish court rejected his request for a
preliminary injunction “since the request is of the essence of the case and
requires a trial. In July 2024, Tatari petitioned the Turkish court overseeing
the passport case to prevent Durust from taking O.T. abroad and to notify the
Turkish and American authorities of this. Two days later, the Turkish court
denied his request “since the parties were divorced, the mother has custody,”
and “the party with custody rights may use her rights arising from custody, and
she has the initiative to go abroad.” On August 20, 2024, Durust flew to
America with O.T. She failed to advise Tatari of the move, much less seek his
approval. The next day, she emailed him indicating her intention to remain in
America. After Durust’s move to America, she filed a third action in Turkish
court to change Tatari’s visitation schedule for O.T. given their move to
America, which was currently pending. Finally, in October 2024, Tatari sought
to expedite the custody case in Turkish court, which the family court declined
to do. Nonetheless, Tatari’s witnesses were heard in that case on November 28,
2024, and Durust’s witnesses were scheduled to be heard in February 2025.
The provisions of the Protocol were
approved by the judge according to TCC Art. 184/5, which provides validity to
agreements as to accessorial consequences of divorce upon judicial approval.
Because the judge approved the provisions of the Protocol, Tatari had at least
some right to the interests established there. Based on the evidence presented
at trial, the court found that under Turkish law, the provisions of the
Protocol—and specifically Sections 3.7 and 3.8—provide Tatari “rights relating
to the care of the person of the child.” In sum, the court held that under the
Turkish Divorce Decree Tatari had the right to approve, or disapprove, certain
decisions about O.T.’s life, including whether he may live abroad.
The
Court held that Tatari’s right to approve or disapprove decisions about O.T.’s
residence is precisely the type of right the Hague Convention recognizes as
custodial. In Abbott, the Supreme Court explained that a ne exeat
right was a right to “determine” the child’s place of residence because the
parent can effectively limit the child’s country of residence to only the home
country. 560 U.S. at 11. The
child’s home country may have important influences on the child’s absorption of
culture and traditions as well as his education. Id. at 11-12.
Therefore, a ne exeat right is the sort of custodial right that allows
the parent to effect his influence on the child. When a parent’s “consent is
legally required before the other parent may move the child to another
country,” that parent has a custodial right to determine the child’s residence
recognized by law. Radu
v. Toader, 463 F. App’x
29, 30 (2d Cir. 2012).
Persuasive caselaw from other circuits showed
that Tatari’s ability to object to O.T.’s relocation abroad and present a claim
subsequent to that relocation was sufficient to constitute a custodial right.
In Palencia v. Perez, the Eleventh Circuit considered an unmarried
father’s custody right of patria potestad under Guatemalan law. 921 F.3d 1333, 1339 (11th Cir. 2019).
Guatemalan law provided that all natural parents, whether or not married, have
the right and duty to exercise the parental authority of patria potestad,
but that when the parents are not married, “the children shall be in the
mother’s custody.” Id. at 1339-40. The
mother argued that because she had custody over the children, the father could
not have an effective patria potestad. The Eleventh Circuit rejected
this conclusion because Guatemalan law “provides an unmarried father with
certain obligations (and therefore certain rights) with respect to his child,
with the caveat that ... the mother [has] the final say when the parents
disagree on a given issue.” Id. at 1341.
Because the father had the authority to participate in the decision-making
about his child’s residence, he had a right of custody, despite the fact that
the mother had the final say. Id. at 1342.
Here too, even under Durust’s reading of the Divorce Decree, Tatari has the
right to participate in making decisions about O.T.’s residence, even if Durust
has the final say.
The Court concluded that Tatari had shown that he had a custodial right, specifically a ne exeat right, under Turkish law which was infringed when O.T. was brought to the United States without
