Case Update (29 Jan 2025): Tatari v. Durust; District Court examines Turkish law to find Father has right of custody and child should be returned

Petitioner Father sought the return of his son to Turkey pursuant to the Hague Abduction Convention. The key issue before the District Court was whether the Petitioner had a right of custody, pursuant to the Divorce Decree that the parties entered into in Turkey. The court already granted partial summary judgment in December 2024 on certain salient legal issues. After the final trial and certain post-trial briefing, the court was left to examine the potential conflict between Turkish law and the terms in the parties’ Divorce Decree, entered by a court in Turkey. The District Court summarized Turkish law as follows. The parties sought an uncontested divorce in Turkey. Therefore, they were required to sign a divorce protocol (an agreement) and present it to the court. The court would review the protocol, hear statements from the parties regarding the divorce, and decide whether to adjust any provisions. The Turkish court accepted the instant parties’ protocol, with only slight adjustments to the visitation schedule between son and Petitioner Father. The protocol was then included as part of the parties’ Divorce Decree.

The parties submitted different translations of the Divorce Decree to the District Court. An important difference between the translations was that the Petitioner’s translation obligated the Respondent Mother to “obtain [his] approval and opinion” if she decided to live abroad with the child. Respondent’s translation simply required her to “consult and seek the opinion” of the Petitioner as to where she decides to live abroad. The court, after hearing from 2 separate translation experts, agreed that the Petitioner’s translation was “more faithful to the Turkish original.”

The parties, post-Divorce, engaged in additional litigation worth mentioning. There were, at least, two other cases in Turkey. One was a case filed by Respondent seeking a U.S. passport for the child after the Petitioner refused to sign the U.S. passport application. Ultimately, she flew to Africa and secured a one-time emergency use passport for the child without the Petitioner’s signature. The Petitioner sought, in this case, a no-travel order, but the court declined, saying that a parent with sole custody could travel with the child. A second case, filed by Petitioner, sought to amend the custodial arrangement. On August 20, 2024, the Respondent Mother relocated the child to New York, and then filed a third court case, seeking a change in the Father’s visitation given the child’s location in the USA. The custody modification case in Turkey is still pending, with Father’s witnesses heard in November, and Mother’s witnesses scheduled to be heard this month.

In terms of the dispute over whether Petitioner has a right of custody, the parties offered competing expert opinions. The tension appeared to revolve around the fact that Turkish law permits only sole custody, but, recently, Turkish courts have allowed joint custody on the consent of both parents and based on a finding that joint custody is in the child’s best interest. Because a sole custodian, under Turkish law, is permitted to make all major decisions for the child, without the consent or approval of the non-custodial parent, any divorce decree that modifies the decision-making rights of the custodial parent should do so explicitly and based on a best interest finding. A protocol (or agreement) between parties is merely a series of promises to one another. The court must approve of those promises to give those promises validity. The District Court clearly found that the legal rights in the protocol at issue here clearly establish certain interests between the parties, and that the Respondent Mother cannot argue otherwise (after all, she did seek to enforce certain terms of the protocol herself, in the past, when she claimed that the Petitioner had stopped payment of school tuition, which is only provided for in the protocol). The court found the Petitioner’s expert persuasive and the Petitioner’s argument to be the better one. Joint custody in divorces in Turkey are becoming more common over the past decade and a half, especially since 2017 when a Turkish Supreme Court decision endorsed the practice of agreeing upon joint custody arrangements. The court in Turkey must approve or disapprove of each provision in a parental agreement, and may make changes to it. The Turkish judge here left in place the parties’ agreement that the Petitioner Father had a veto right over his son relocating to another country. The court was not persuaded that the statements the parties made on the record during their divorce hearing, which were incorporated into the Divorce Decree, were binding. Only the protocol, incorporated into the Divorce Decree, was binding. Their statements on the record were not part of the Turkish decision. The court was also not persuaded that the order from the Turkish court permitting the Mother’s travel with the child as sole custodian impacted whether the Mother could relocate the child to another country. The court noted the distinction between permission to travel and permission to relocate a child.

The child is ordered returned to Turkey.

Update: on Friday, March 28, 2025, the Second Circuit affirmed by Summary Order.