In re Akin
| Decision Date | 13 January 2022 |
| Docket Number | 2021-0234 |
| Citation | 174 N.H. 743,274 A.3d 569 |
| Parties | In the MATTER OF Senay AKIN and Nedim Suljevic |
| Court | New Hampshire Supreme Court |
Bloomenthal Law Office, of Nashua (Sandra Bloomenthal on the brief and orally), for the petitioner.
Ropes & Gray LLP, of Boston, Massachusetts (Daniel V. Ward, Erin Macgowan, and Elias R. Feldman on the brief, and Daniel V. Ward orally), and Preti, Flaherty, Beliveau & Pachios, Chartered, LLP, of Concord (William C. Saturley on the brief), for the respondent.
The respondent, Nedim Suljevic (Father), appeals an order of the Circuit Court (Steckowych, J.) denying his motion for the court to exercise temporary emergency jurisdiction over the parties’ custody dispute pursuant to New Hampshire's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), see RSA ch. 458-A (2018), and granting the petition of the petitioner, Senay Akin (Mother), to enforce the parties’ Turkish child custody order. We affirm.
The following facts were found by the trial court, relate the content of documents in the record, or are undisputed. The parties, who both currently have or previously had Turkish citizenship, were married in December 2010 and had a daughter the following year. According to Mother, the parties married in New Hampshire, and when she was pregnant with their daughter, she moved to Turkey while Father continued to reside in the United States.
The parties’ daughter was born in Turkey in December 2011 and, until the events giving rise to this proceeding occurred in 2019, lived in Turkey continuously, attending school and receiving medical care there. According to Mother, before the parties divorced, she traveled to the United States "once or twice every year so that [the daughter] could see [Father] and continue their bond," and Father "came to Turkey once or twice every year to visit [the] daughter."
The parties were divorced by a Turkish court in January 2015. The decree grants Mother sole custody of the child and allows Father to have visitation with her. In 2019, Mother agreed that the daughter could spend July and August in the United States, visiting Father. However, at the end of this planned, two-month visit, Father refused to return the daughter to Mother. Mother made repeated overtures to Father for the daughter's return, but he refused her entreaties. Mother accepted employment in Massachusetts during the 2020-2021 timeframe so that she could visit the daughter. During this time, Father continually rejected Mother's requests for the daughter's return to her custody.
Because of the COVID-19 pandemic and difficulty finding a suitable attorney, Mother did not bring a court action for the daughter's return until filing the instant petition for expedited enforcement of a foreign child custody order in April 2021. Father was served with Mother's petition on May 3, 2021. The next day, he filed a motion asking the trial court to exercise temporary emergency jurisdiction over the custody dispute pursuant to the UCCJEA on the ground that the daughter "is present in [New Hampshire] and is threatened with mistreatment or abuse if she is consigned to the custody of [Mother]." Father submitted an affidavit in which he averred that before the daughter "came to stay with [him] in New Hampshire, [he] made frequent visits to Turkey to see her and [Mother]," and that "[o]n two occasions, [he] personally saw [Mother] kick [the daughter] with force, like a soccer ball."
Mother objected to Father's motion, asserting that he had "refused repeatedly to return [her] daughter" and had issued threats. Mother contended that Father had harmed the daughter by refusing to allow her to be with Mother and Mother's family in Turkey. Mother asserted that Father "should not be allowed to litigate in New Hampshire when the Turkish order controls custody."
Following a hearing on offers of proof and documentary evidence, the trial court denied Father's motion for emergency jurisdiction and granted Mother's petition for enforcement of the Turkish child custody order, returning the daughter to Mother's sole custody. This appeal followed.
We will uphold the trial court's factual findings unless the evidence does not support them or they are erroneous as a matter of law. Rabbia v. Rocha, 162 N.H. 734, 738, 34 A.3d 1220 (2011). We review the trial court's legal rulings and its application of law to the facts de novo. Balzotti Global Grp., LLC v. Shepherds Hill Proponents, LLC, 173 N.H. 314, 319, 239 A.3d 1009 (2020).
Mother brought this petition under both the UCCJEA and the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter, Hague Convention), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 98, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986), as implemented by the International Child Abduction Remedies Act (ICARA), see 22 U.S.C. §§ 9001 - 9011 (2018). We first consider Father's arguments regarding the Hague Convention.
The Hague Convention, to which the United States and Turkey are parties, see Ozaltin v. Ozaltin, 708 F.3d 355, 358 (2d Cir. 2013), "was adopted in 1980 ‘to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.’ " Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir. 2005) (). The United States ratified the Hague Convention in 1988, and Congress implemented the Convention that same year through the ICARA. Lozano v. Montoya Alvarez, 572 U.S. 1, 6, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014). The ICARA allows a parent to petition a federal or a state court to return an abducted or wrongfully retained child to the child's country of residence. See 22 U.S.C. § 9003(b).
"The Hague Convention applies only to determine whether a child should be returned, and does not empower the court to make any determinations regarding child custody." Avendano v. Balza, 985 F.3d 8, 11 (1st Cir. 2021) (citation omitted). "The court simply asks whether a custody decision should be made in the United States or in the country of the child's habitual residence." Id.
"The Convention states two primary objectives: ‘to secure the prompt return of children wrongfully removed to or retained in any Contracting State,’ and ‘to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.’ " Lozano, 572 U.S. at 4-5, 134 S.Ct. 1224 (quoting the Hague Convention, art. 1). "To those ends, the Convention's central operating feature is the return of the child." Id. at 5, 134 S.Ct. 1224 (quotation omitted). There is, thus, a "strong presumption of return of the child to his or her country of habitual residence." Avendano, 985 F.3d at 11. However, "[t]he Convention's return requirement is a provisional remedy" that merely "fixes the forum for custody proceedings." Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 723, 206 L.Ed.2d 9 (2020) (quotation omitted). "Upon the child's return, the custody adjudication will proceed in that forum." Id. "The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence." Abbott v. Abbott, 560 U.S. 1, 20, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010).
The Convention "stresses the importance of deciding matters expeditiously," Ermini v. Vittori, 758 F.3d 153, 167 (2d Cir. 2014) (quotation omitted), and the need to establish "swiftly a degree of certainty and finality for children," id. at 168. "To avoid delaying the custody proceeding, the Convention instructs contracting states to use the most expeditious procedures available to return the child to her habitual residence." Monasky, 140 S. Ct. at 724 (quotation omitted).
A parent, like Mother in this case, alleging wrongful retention has the burden of establishing a prima facie case of wrongful retention by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(1). A retention is wrongful when: "(1) the child was habitually resident in one State and has been ... retained in a different State; (2) the ... retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the ... retention." Gitter v. Gitter, 396 F.3d 124, 130-31 (2d Cir. 2005). Here, Father does not argue that Mother failed to establish her prima facie case.
Once the petitioning parent establishes her prima facie case, the child must be "promptly returned unless one of the narrow exceptions set forth in the Convention applies." Lozano, 572 U.S. at 6, 134 S.Ct. 1224 (quotation omitted); see 22 U.S.C. § 9001(a)(4). Father invokes the exception contained in Article 12 of the Convention. Under that article, when, as in this case, more than one year has elapsed between the date that the child was wrongfully retained and the date on which the proceedings commenced, the court must order the child to be returned "unless it is demonstrated that the child is now settled in [her] new environment." Hague Convention art. 12, supra, 1343 U.N.T.S. at 100, reprinted in 51 Fed. Reg. at 10,499.
Father argues that the trial court erred by declining to consider whether the child was now settled in New Hampshire. We do not share his interpretation of the trial court's decision as reflected in its narrative order and order from the bench. In the Matter of Sheys & Blackburn, 168 N.H. 35, 39, 120 A.3d 150 (2015) (). Rather, we interpret the trial court's narrative and bench orders as the trial court assuming that the...
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