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Media Alerts - Ozaltin v. Ozaltin - Second Circuit
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February 11, 2013
  Ozaltin v. Ozaltin - Second Circuit
Headline: Second Circuit Finds a Federal Right of Action Exists to Enforce Access Rights to an Abducted Child under the Hague Convention

Area of Law: International Law

Issue(s) Presented: Whether § 11603(b) of the International Child Abduction Remedies Act creates a federal right of action to enforce the right of access to removed children granted under the Hague Convention.

Brief Summary: Petitioner-appellee, Nurettin Ozaltin ("the Father") brought suit under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") and the International Child Abduction Remedies Act ("ICARA"), alleging respondent-appellant Zeynep Tekiner Ozaltin ("the Mother") wrongfully removed the couple's two daughters from their home in Turkey to New York City. Following a series of orders by a Turkish court concerning the removal and visitation, the Father brought this action in the United States District Court for the Southern District of New York seeking an order requiring the Mother return their children to Turkey, granting him visitation access while the children were in New York, and seeking an award of necessary expenses he incurred as a prevailing petitioner under the Hague Convention.

The Second Circuit affirmed the district court's return order, agreeing that, because under Turkish law the Father had retained custody rights, the children were wrongfully removed within the meaning of the Hague Convention. Additionally, contrary to the Fourth Circuit's holding in Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006), the Second Circuit held that § 11603(b) unambiguously confers a federal right of action for claims to organize or secure the effective exercise of access rights protected under the Hague Convention. Finally, the Second Circuit vacated the award of costs, and remanded for further proceedings, finding the award "clearly inappropriate" given the Mother's reasonable belief that she was acting in accordance with Turkish law in removing the children from Turkey and in light of the court's concern over the Father's potential forum-shopping and its impact on litigation costs.

To read the full opinion, please go to: http://www.ca2.uscourts.gov/de...d838d2d13e0/1/hilite/

Significance: Decision creates a split between the Second and Fourth Circuits concerning whether § 11603(b) of the International Child Abduction Remedies Act creates a federal right of action to enforce the right of access to children granted under the Hague Convention.

Extended Summary: In December 2010, respondent-appellant Zeynep Tekiner Ozaltin ("the Mother") and her now-estranged husband, petitioner-appellee Nurettin Ozaltin ("the Father"), dual citizens of Turkey and the United States, were living in Turkey with their two daughters when, after a heated dispute, she left with the children and moved to New York City. In February 2011, the Mother applied for a protective order and initiated divorce proceedings in Turkish family court. A May 2011 petition by the Father for provisional custody was denied by the family court, but the court granted him weekend visitation with his children in New York, and visitation in Turkey during the summer. The family court later rejected the Father's efforts to extend the summer visitation and ordered the children returned to their Mother. The Father returned the children, but not their passports, claimed to have been lost, to the Mother in September 2011, and filed a Hague Convention petition with the Turkish Ministry of Justice seeking to prevent the Mother from returning with the children to the United States. The Ministry found, at that time, that no appropriate action could be taken under the Hague Convention because the children were already in Turkey, and suggested the Father apply to the family court if he wished to prevent a change in the children's residence but the Father did not do so. Following the Mother's return with the children to the United States in November 2011 and her initial refusal to allow the Father unsupervised visitation, the Father filed this action under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") and the International Child Abduction Remedies Act ("ICARA") in the United States District Court for the Southern District of New York. Simultaneously, the Turkish family court ordered the Mother to once again permit the Father to have weekend visitation with his children in New York.

On June 5, 2012, the District Court ordered the Mother to comply with the Turkish court's visitation order, return the children to Turkey by July 15, 2012, and pay the Father for any "necessary expenses" incurred in connection with the suit. The court found that under the Hague Convention, which seeks to resolve whether a child should be returned to his or her country of habitual residence for custody proceedings, the Mother's retention of the children in New York was wrongful and the children should be returned to Turkey to resolve the parties' custody dispute. The court further held that under ICARA, federal courts have subject matter jurisdiction under 42 U.S.C. § 11603(b) to consider right of access claims to children arising under the Convention.

The Second Circuit affirmed the District Court's return order, holding that, because under Turkish law and the family court rulings, the Father retained his custodial rights, the children were wrongfully removed within the meaning of the Hague Convention. Additionally, contrary to the Fourth Circuit's 2006 holding in Cantor v. Cohen, the Second Circuit held that § 11603(b) unambiguously confers a federal right of action for claims to organize or secure the effective exercise of access rights protected under the Hague Convention. While the Fourth Circuit interpreted Article 21 of the Convention as stating that access rights can only be vindicated by applying to the State Department, the Second Circuit found that this provision does not prohibit a party from vindicating his or her rights directly in federal or state court under ICARA.

Finally, the Second Circuit vacated the award under the Convention of "necessary expenses" incurred by the Father in this action finding it "clearly inappropriate" because the Mother had a reasonable basis for believing her removal of the children was permissible under Turkish law and the courts repeated rulings implying that the children could live with her in the United States. The court further noted its concern over potential forum-shopping by the Father which may have increased the cost of resolving the dispute. Accordingly, the Second Circuit remanded the issue of whether to award costs and in what amount.

To read the full opinion, please go to:
http://www.ca2.uscourts.gov/de...d838d2d13e0/1/hilite/

Panel: Judges Leval, Cabranes, and Sack.

Argument: 10/23/2012

Date of Issued Opinion: 2/11/2013
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Docket Number: 12-2371-cv

Decided: Affirmed in Part; Vacated and Remanded in Part

Case Alert Author: Kimberly Vail

Counsel: BONNIE E. RABIN (Tim James, Of Counsel), Cohen Rabin Stine Schumann LLP, New York, NY, for Petitioner-Appellee Nurettin Ozaltin; ARUN S. SUBRAMANIAN (Jacob W. Buchdahl, William R.H. Merrill, on the brief), Susman Godfrey LLP, New York, NY, and Houston, TX, for Respondent-Appellant Zeynep Tekiner Ozaltin.

Author of Opinion: Judge Cabranes

Supervisor: Professor Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 02/11/2013 02:55 PM     2nd Circuit  

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