United States District Court, D. New Hampshire
Christopher G. Green, Daniel V. Ward, Douglas E. Brayley, Kristen A. Fiore, Lisa L. Rachlin, M. Patrick Moore, Jr., Allison M. Boscarine, Ropes & Gray LLP, Boston, MA, for Ismail Ozgur Yaman.
Beth I. Boland, Janice W. Howe, Bingham McCutchen LLP, Boston, MA, Donald J. Marchesseault, Susan Kim, Bingham McCutchen LLP, Hartford, CT, Sheila M. Pierce, Bingham McCutchen LLP, Palo Alto, CA, David P. Eby, Pamela A. Peterson, Devine Millimet & Branch PA, Manchester, NH, for Linda Margherita Yaman.
PAUL BARBADORO, District Judge.
This case arises from a custody dispute between the divorced parents of two minor children who are currently living in Hanover, New Hampshire. Ismail Ozgur Yaman, the children's father, was granted custody of both children by a Turkish court. He has filed a petition here seeking an order requiring that the children be returned to Turkey pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 24, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11 (" Hague Convention" ).
Linda Margherita Yaman, the children's mother, has responded by arguing, among other things, that the children should not be returned to Turkey because they are " now settled" in New Hampshire. A now-settled defense is viable only if the person seeking the return order failed to file a return petition within a year of the date on which the children were wrongfully removed. Dr. Yaman concedes that he did not file his petition within the one-year filing period, but he argues that the filing period should be equitably tolled because Ms. Yaman made it impossible for him to file his petition earlier by concealing the children's whereabouts.
In this order, I explain why concealment does not equitably toll the Hague Convention's one-year filing period.
Dr. and Ms. Yaman met in 1997 in Detroit, Michigan where he was enrolled in post-graduate studies at Wayne State University. The couple married in August 2000 in Turkey, and then returned to the United States. Ms. Yaman became a Turkish citizen on October 3, 2000. The couple's older daughter, K.Y., was born on March 5, 2002, in the United States and later became a Turkish citizen. In January 2003, the family moved to Turkey, where Dr. Yaman's parents live, and where Dr. Yaman had been hired as a professor in the Civil Engineering Department at the Middle East Technical University. The Yamans' younger daughter, E.Y., was born in Turkey on August 11, 2003. Both children are dual citizens of Turkey and the United States.
In May 2004, Ms. Yaman accused her husband of sexually abusing their daughters. Dr. Yaman denied the allegations.
The parties separated in late December 2004. In February 2005, Dr. Yaman filed for divorce, citing the " irretrievable breakdown of the marriage." Ms. Yaman filed a counter suit in March 2005. Following divorce and custody proceedings, on March 13, 2006, a Turkish family court rejected the abuse allegations, concluding after a thorough investigation that they were false. The court granted Dr. Yaman sole custody of the children.
Ms. Yaman appealed the Turkish Family Court order, during which time the children remained in her custody. On April 3, 2007, the Supreme Court of Appeals affirmed the family court's custody decision. Ms. Yaman appealed the decision, which the Supreme Court of Appeals again affirmed on July 16, 2007. On August 3, 2007, the Turkish Family Court entered its final ruling awarding custody of the children to Dr. Yaman.
Ms. Yaman began preparing to remove the children from Turkey sometime during the divorce and custody proceedings. She contacted a former Army Ranger and snatchback specialist, Gus Zamora, who helped her and her mother devise a plan to abscond with the children from Turkey. In August 2007, Ms. Yaman fled Turkey in a boat bound for Greece with the children and without informing Dr. Yaman of her intentions to leave or where she was going. From Greece, Ms. Yaman traveled with the children to Andorra, where they lived for about two and a half years. She then moved with them to the United States in 2010, where they have remained to date. The children and Ms. Yaman currently live together in Hanover, New Hampshire.
Dr. Yaman filed a Hague Convention petition in this court in June 2012. He contends that Ms. Yaman sought to conceal the children's whereabouts from him after taking them from Turkey. For purposes of this motion, I assume that his allegations of concealment are true.
II. THE HAGUE CONVENTION
The Hague Convention's first Article succinctly states its objectives, which are " to secure the prompt return of children wrongfully removed to or retained in any Contracting State" and " to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1; see also Abbott v. Abbott, 560 U.S. 1, 130 S.Ct. 1983, 1989, 176 L.Ed.2d 789 (2010). A hearing pursuant to the Convention " is not meant ... to inquire into the merits of any custody dispute underlying the petition for return." Duarte v. Bardales, 526 F.3d 563, 569 (9th Cir.2008) (citation and quotations omitted). It functions instead to determine in which jurisdiction the custody dispute should be settled. See 42 U.S.C. § 11601(b)(4); Barzilay v. Barzilay, 536 F.3d 844, 847 (8th Cir.2008); Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494, 10511 (" State Department Analysis" ).
The Convention authorizes a person claiming that a child has been removed from a participating country in breach of custody rights to petition for the child's return. It does not, however, purport to empower a judicial or administrative tribunal to issue a return order. Instead, it assumes that the tribunal possesses such power and specifies in Article 12 the circumstances under which a tribunal ordinarily must issue a return order. Articles 13 and 20 set forth defenses which, if proved, authorize a tribunal to refuse to issue a return order even if such an order is otherwise required under Article 12.
Article 12 establishes rules for when a tribunal must issue a ...