In re Yaman

Decision Date07 November 2014
Docket NumberNo. 2013–781,2013–781
Parties In the MATTER OF Ismail YAMAN and Linda Yaman
CourtNew Hampshire Supreme Court

Ropes & Gray LLP, of Boston, Massachusetts (Kristen A. Fiore and Daniel V. Ward on the brief, and Mr. Ward orally), for the petitioner.

Vitt Brannen & Loftus, PLC, of Norwich, Vermont (Geoffrey J. Vitt, Barney L. Brannen, John B. Loftus, and Sarah J. Merlo on the brief, and Mr. Brannen orally), for the respondent.

LYNN, J.

The respondent, Linda Yaman, appeals the decision of the Circuit Court (Carbon, J.), upon the recommendation of the Marital Master (Love , M.), denying her motion to contest the validity of a registered foreign order. We affirm.

I

The following facts were found by the trial court or are undisputed. The petitioner, Ismail Yaman, a Turkish citizen, and the respondent, a United States citizen, were married in Turkey in August 2000, and the respondent became a Turkish citizen in October 2000. Their first child, K.Y., was born in March 2002, in the United States. In January 2003, the family moved to Turkey. The couple's second child, E.Y., was born in Turkey in August 2003. In early to mid–2004, the respondent became suspicious that the petitioner was sexually abusing their older child. In December 2004, the parties separated, and early the next year, the petitioner initiated divorce proceedings in the Turkish Family Court. During the proceedings, the Turkish court required the children to be evaluated by a panel of three psychiatrists (the Tri–Partite Panel), who submitted a report to the court. The court also appointed three independent experts, a psychologist, a pedagogue,1 and a social service provider (the Supervisors), who reported to the Turkish Family Court and made a custody recommendation. On March 13, 2006, after conducting six hearings in which the court considered evidence from both parties and from the independent experts, the court rejected the respondent's claim that the petitioner had abused the children, and issued an order granting sole legal custody of the children to the petitioner and granting the respondent visitation. The respondent appealed the order to the Supreme Court of Appeals of Turkey on two occasions, and both times the appellate court affirmed the family court's order. On August 3, 2007, the family court finalized its order.

Within weeks after the family court's order became final, and without notice to the petitioner, the respondent fled Turkey with the children by engaging the services of a self-proclaimed "snatch back" specialist. The respondent first went to Greece, and then to Andorra, which she knew was not a signatory to the Hague Convention, where she and the children resided from October 2007 to April 2010. The respondent eventually petitioned the United States Department of State to grant her children passports. In March 2010, the State Department issued the children single-use, direct return passports to the United States. The respondent and her children moved to the United States in April 2010 and settled in New Hampshire in May 2010.

After years of searching, the petitioner, who continues to reside in Turkey, was informed in December 2011 that the respondent and the children were living in New Hampshire. The petitioner filed a petition pursuant to Article 2 of the Hague Convention on the Civil Aspects of International Child Abduction2 and the International Child Abduction Remedies Act (ICARA)3 with the United States District Court for the District of New Hampshire. Following a three-day evidentiary hearing, the court ruled that the return of the children to Turkey would not pose a grave risk of harm to them because the respondent had not established that the petitioner abused them. The court also found, however, that the respondent had established that the children were "settled" in New Hampshire within the meaning of Article 12 of the Hague Convention; in light of this finding, the court ruled that it lacked the authority to order the children's return to Turkey. Alternatively, the court ruled that, given the facts of the case, even if it did have the authority to do so, it would not order the return of the children to Turkey. The petitioner appealed to the United States Court of Appeals for the First Circuit. See Yaman v. Yaman, 730 F.3d 1 (1st Cir.2013). The appeals court determined that the district court erred in ruling that it lacked authority to order the return of "settled" children, id. at 20–21, but affirmed the trial court's alternative ruling denying return of the children on equitable grounds as a sustainable exercise of discretion. Id. at 22–23.

During the federal court proceedings, the petitioner also sought enforcement of the Turkish custody order pursuant to New Hampshire's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), RSA chapter 458–A (Supp.2013). The district court declined to exercise supplemental jurisdiction over this claim, dismissing it without prejudice so that the petitioner could pursue it in state court. Following that decision, the petitioner instituted the present action in the New Hampshire Circuit Court. In this proceeding, the parties agreed that collateral estoppel applied to the findings of fact made by the federal court. The circuit court found that the Turkish Family Court exercised jurisdiction over the initial custody determination in substantial conformity with the UCCJEA, and that both parties had an opportunity to be heard during the Turkish proceedings. The court also found that the respondent failed to meet her burden of showing that the Turkish proceedings violated fundamental principles of human rights. Accordingly, the court denied the respondent's motion to invalidate the Turkish custody order, confirmed the registration of the order, and ordered the return of the children to the petitioner's custody. Recognizing that enforcement of its order would be difficult for the children, the court stayed the order, first for 45 days, and subsequently, on the respondent's motion, pending the completion of this appeal.

II

Whether a New Hampshire court must enforce a foreign custody order is governed by the UCCJEA, RSA chapter 458–A. To resolve the issues in this appeal, we must construe that statute. In so doing, our review of the trial court's decision is de novo . In the Matter of Lyon & Lyon, 166 N.H. 315, 318, 95 A.3d 630, 632 (2014). When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. When the language of a statute is unambiguous, we do not look beyond it for further indications of legislative intent. Id. However, when the statutory language is ambiguous or subject to more than one reasonable interpretation, we review legislative history to aid our analysis. Id.

Before addressing the respondent's specific arguments, we provide an overview of the UCCJEA. New Hampshire adopted the UCCJEA in 2009 and it took effect in December 2010. The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA), which New Hampshire had adopted in 1979. The UCCJEA, which was first promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1997, sought to resolve issues that had arisen over decades of courts interpreting and applying the UCCJA. Unif. Child Custody Jurisdiction & Enforcement Act, Prefatory Note, 9–IA U.L.A. 649–53 (1999). The NCCUSL enumerated the UCCJEA's purposes:

1) Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being;
2) Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
3) Discourage the use of the interstate system for continuing controversies over child custody;
4) Deter abductions of children;
5) Avoid relitigation of custody decisions of other States in this State;
6) Facilitate the enforcement of custody decrees of other States.

Unif. Child Custody Jurisdiction & Enforcement Act § 101, cmt., 9–IA U.L.A. 657 (1999).

The UCCJEA provides for two primary types of jurisdiction. First, a court may have jurisdiction to make an initial custody decision. RSA 458–A:12 (Supp.2013). To have initial jurisdiction, the state must be the "home state of the child on the date of the commencement of the proceeding," or have been the "home state of the child within 6 months before the commencement of the proceeding" and "a parent or person acting as a parent continues to live in this state." RSA 458–A:12, I(a). A court may also have jurisdiction to issue an initial custody order if no other state is the child's home state or the court in the child's home state has declined jurisdiction, and the child and at least one parent has a significant connection to the state and substantial evidence concerning the child is present in the state. RSA 458–A:12, I(b).

Second, a court may have jurisdiction to modify a custody order. RSA 458–A:14 (Supp.2013). A court may modify an out-of-state custody order only if the state meets the criteria for jurisdiction under RSA 458–A:12 and "the other state determines it no longer has exclusive, continuing jurisdiction ... or that a court of this state would be a more convenient forum," RSA 458–A:14, I, or a court of either state "determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state." RSA 458–A:14, II.

Once a court of this state has issued an order pursuant to either RSA 458–A:12 or :14, the court has exclusive, continuing jurisdiction until:

(a) A court of this state determines that
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