Tatari v Durust, Not Reported in Fed. Rptr., 2025 WL 947009 (Second Circuit, 2025) [Turkey] [Petition granted] [Habitual residence][Breach of custodial rights]

In Tatari v Durust, Not Reported in Fed. Rptr., 2025 WL 947009 (Second Circuit, 2025) the Second Circuit affirmed the February 3, 2025, judgment granting the petition of Petitioner-Appellee Zühtü Tatari and ordering that O.T., the parties’ joint child, be returned to Türkiye.

Dürüst and Tatari obtained a Divorce Decree from a Turkish family court in 2022, which orders that Dürüst be appointed custody of O.T. and approves and recites various provisions of a Divorce Protocol to which the parties agreed. The Decree appends Section 3.7 of the Protocol, which relates to the relocation of O.T. abroad. Section 3.7 reads: “[Dürüst] agrees, acknowledges, and undertakes irrevocably that if she decides to live abroad together with the joint child, she will obtain the approval and opinion of [Tatari].” Dürüst relocated O.T. to New York in August of 2024, without first notifying Tatari or seeking his consent. Tatari brought the present action, petitioning for the return of O.T. to Türkiye pursuant to the Hague Convention. After granting Tatari’s summary judgment motion in part, the district court held an expedited bench trial on the issue of whether O.T.’s removal violated Tatari’s custodial rights under Turkish law. The court then ruled in Tatari’s favor, and Dürüst appealed.

 The  Court observed that in cases arising under the Hague Convention and [the International Child Abductions Remedies Act], it reviews a district court’s factual determinations for clear error.” Mota v. Castillo, 692 F.3d 108, 111 (2d Cir. 2012). “It reviews de novo a district court’s interpretation of the Convention and its application of the Convention to the facts.” “In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.”  

 On appeal, Dürüst challenged only the district court’s determination as to the second prong of the analysis, whether the removal was in breach of Tatari’s custodial rights under Turkish law.

 Tatari argued that a plain reading of Section 3.7 requires Tatari’s consent before O.T. may be relocated abroad and that this plain reading of the Divorce Protocol ought to be the end of the dispute. Dürüst contended that Section 3.7 is not enforceable under Turkish law and that its legal meaning is far from plain. The Court saw no reason here, where Dürüst is free to pursue an order from the Turkish court conclusively supporting her right to move abroad under the Divorce Decree, to disagree with the District Court’s assessment of the experts’ relative credibility. The Hague Convention counsels in favor of sending children back to their habitual residence so that close cases can be resolved in the family courts where they originated. Therefore, it concluded that the evidence before us supported the finding that Tatari had an enforceable right under Turkish law to determine O.T.’s country of residence, which, regardless of who had “custody,” is a protected custodial right under the Hague Convention that Dürüst breached by moving O.T. to the United States without his approval. Tatari’s custodial rights were breached, making the removal wrongful.

The Court acknowledged that Dürüst reasonably relied on ambiguous statements by Turkish courts and Tatari’s contemporaneous statement, memorialized in the Divorce Decree, that he understood the Protocol not to be independently enforceable. It believed that Dürüst’s reading of the Divorce Decree and its legal effects was likely an honest mistake of law. And it remained possible that Dürüst would secure a decision from a Turkish court confirming her own reading of the Protocol and unambiguously permitting her relocation. For that reason, assessment of costs against Dürüst in this case would be “clearly inappropriate.” Ozaltin v. Ozaltin, 708 F.3d 355, 375–76 (2d Cir. 2013) (“Although mistake of law is not a defense to the return action itself, it is a relevant equitable factor when considering whether a costs award is appropriate.”).