Case Update (3 Dec 2024): Tatari v. Durust; partial summary judgment motion granted for Petitioner in Abduction Convention case
Petitioner Father filed a request to return the parties’ 6-year-old son to Turkey pursuant to the Hague Abduction Convention. He argued that the child was wrongfully removed from Turkey and relocated to the USA. The Respondent Mother argued that she was permitted to do so as the sole custodian under their Turkish divorce decree (DD). The Court considered dueling motions for summary judgment.
The parties executed a divorce agreement, approved by the Turkish court, in January 2022. The parties presented competing English translations of this DD to the court. The Turkish DD provides for the Mother to have “sole custody” and establishes the Father’s “rights to parenting time as well as his obligations” to the Mother and child. The Father’s translation reads that the Mother “irrevocably accepts, declares and undertakes that she will obtain the approval and opinion of [the Father] in case she decides to live abroad with the common child.” The Mother’s translation reads that the Mother “irrevocably agrees, represents and undertakes that where she decides to live abroad together with the biological child, she will consult and seek the opinion of” the Father. Around the child’s 5th birthday, the child’s U.S. passport was set to expire (the child had been born in Florida, so he was a U.S. citizen), and the Father refused to sign forms to renew the passport. The Mother sought the intervention of the Turkish courts and then traveled to the Ivory Coast in December 2023 to obtain an emergency U.S. passport for the child. In August 2024, the Mother and child left Turkey to live in the United States. The Mother did not tell the Father she planned to relocate to New York before (or shortly before) moving. The Turkish courts are currently seized with two cases - a January 2024 petition by the Father for custody, which is still pending, and a September 2024 petition by Mother to establish access between Father and child while the child is in NY.
The Mother argues that the child has become acclimated to the USA over the three months since arriving in NY, and therefore the child’s habitual residence is the USA. The District Court rejects this argument because habitual residence is set at the time of removal or retention. The child had lived in Turkey his entire life, but for a few weeks when the parents traveled to Florida for his birth. Therefore, summary judgment is granted on the issue of habitual residence in favor of Petitioner Father.
The key argument is whether the Father has a right of custody under the parties’ DD from Turkey that granted the Mother sole custody. More specifically, the parties disagree as to whether it includes a right of ne exeat (the right to prevent the removal of a child). The District Court noted that Turkish law historically does not provide for joint custody, and the parent with sole custody “has the constitutional right to determine the child’s domicile, while the non-custodial parent only has visitation rights.” The District Court also noted that, in 2017, a Turkish Supreme Court decision resulted in Turkish courts beginning to enforce “at least foreign joint custody orders.” The Father “and his experts argue that the couple tried to make a practical joint custody agreement since Turkish law does not allow them to make an official joint custody agreement” and therefore the parties included “the ne exeat right to veto [the Child’s] moving abroad.” The Mother argues her translation of the court order, and further argues that the Father’s “statement during the divorce proceedings that he ‘understands that [Mother] can legally decide alone within the scope of the right of custody in matters such as … moving his residence abroad’ shows that section 3.7 of the [court order] was not meant to alter” her rights.
With the competing translations, there is a genuine dispute of material fact, and therefore, the court refused to grant summary judgment on this issue. Separately, the Father also argues he should be found to have a right of custody to the child because the Turkish court order permitted him joint rights to “determine” the child’s schooling and healthcare, which is a custody right. Since no evidence has yet been taken on Turkish law in this regard, there remains a material dispute of fact on this issue of the Petitioner’s “right of custody”.
Finally, the Mother sought summary judgment on her argument that the Father consented to the child’s relocation. However, the evidence shows that the Father did not consent, and in fact, in January 2024, sought to change custody by filing a lawsuit in Turkey. He further refused to agree to the child’s U.S. passport renewal. Therefore, either the Father did not give consent to the child’s relocation at the time of their DD, or, his actions show that he clearly revoked any consent prior to the child’s relocation. The Father’s request to grant summary judgment on the consent exception is granted.
The Court concluded that it may be appropriate to direct the Petitioner Father to request a determination from the Turkish courts, pursuant to Article 15, as to whether the child’s removal was wrongful.
