Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013)

INCADAT legal file Hague parental abduction

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The parents met in Michigan in 1997 and married in August 2000 in Turkey before returning to the United States of America. Their first child was born in the U.S. in March 2002. The family then moved to Turkey for the father to assume a teaching appointment. Mother and child obtained dual citizenship. In Turkey, in August 2003, the family’s second child was born, and obtained dual citizenship.
The parents separated in December 2004, with the father moving out of the family home and the children remaining with the mother in the home.
The father filed for divorce in Turkey in February 2005, and in March 2006, he was given sole custody by the Family Court. The mother appealed, and during the appeal, the children continued residing with her. The Turkish Supreme Court of Appeals upheld the father’s award of sole custody in April 2007, and the mother appealed again. The award of sole custody was affirmed in a second appellate decision in July 2007.
On 3 August 2007, the Turkish Family Court finalized the father’s order of sole custody. Later that month, the mother left Turkey with both children by boat through Greece and several other European countries with the help of a hired “snatch back” specialist. She arrived in Andorra and remained there with the children from October 2007 to April 2010. During her time in Andorra hiding the children, and without informing the U.S. Government of her location, the mother petitioned the U.S. Department of State and obtained single-use direct return passports for both children to return to the United States of America. She then returned to the U.S. with both children in April 2010, first to Michigan, then Missouri, and finally settling in New Hampshire in May 2010.
During the time that the mother was hiding the children, the father was actively seeking out the children’s location, believing that the children may have been located in Michigan with family. In January 2008, the father filed a Hague application with the Turkish Central Authority. After the application was transmitted to the U.S. Central Authority, the State Department, in January 2009, deactivated the application, believing the children (correctly) to be in Europe, not the United States.
After the children were issued passports by the United States in April 2010, the State Department notified the father, the Central Authorities worked to re-activate the Hague application, and finally, on 19 December 2011, the U.S. Department of State located the mother and children in New Hampshire. The State Department cautioned the father to not file a petition in court in New Hampshire until they could confirm the children’s address, which they could not do even as late as 5 June 2012. The father, at this juncture, filed a petition for the children’s return under the U.S. implementing legislation in the New Hampshire courts on 12 June 2012.
On 15 June 2012, the Court issued provisional remedies to keep the children within its jurisdiction pending the proceedings, and to appoint a guardian ad litem to issue a report on behalf of both children.
The father pre-emptively attempted to preclude the mother from asserting the Article 12 “well-settled” defence prior to the parties’ evidentiary hearing by filing a motion on the basis that the mother had “actively and egregiously attempted to evade legal proceedings”. The Court denied the father’s motion indicating that equitable tolling did not apply to Article 12, and the mother could assert the Article 12 defence.
During a three-day evidentiary trial, the parties presented testimony and evidence related to the mother’s hiding of the children, the father’s attempts to locate the children, the children’s settlement into their New Hampshire community, and alleged sexual abuse of the parties’ older daughter. The District (trial) Court found that the children were well settled and refused to order their return to Turkey.
The father appealed on 14 February 2013, and on 3 May 2013, filed, in the New Hampshire state courts, an action to enforce his Turkish custody order.
The mother cross-appealed the District Court’s denial of her Article 13(1) b) defence.