Yaman v. Yaman
| Decision Date | 11 September 2013 |
| Docket Number | 13–1285.,Nos. 13–1240,s. 13–1240 |
| Citation | 730 F.3d 1 |
| Parties | Ismail Ozgur YAMAN, Petitioner–Appellant/Cross–Appellee, v. Linda Margherita YAMAN, a/k/a Linda Margherita Polizzi, Respondent–Appellee/Cross–Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Douglas E. Brayley and Daniel V. Ward, with whom Christopher G. Green, Donna A. Mizrahi, Allison Boscarine, and Ropes & Gray LLP were on brief, for petitioner.
Susan Kim, with whom Donald J. Marchesseault, Janice Howe, Beth I.Z. Boland, Stephen Jacob Quinlan, Caleb Schillinger, and Bingham McCutchen LLP were on brief, for respondent.
Before LYNCH, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.
The district court denied the petition of Ismail Ozgur Yaman (“Yaman”) for return of his two daughters, E.Y., now 10, and K.Y., now 11, to Turkey, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (Mar. 26, 1986) (“Convention”).
The two children have lived with their mother since 2004, having lived with their mother and their father before that. The mother and two children have lived in the United States since April 2010, and in New Hampshire since May 2010. There is no question that the habitual residence of the children was Turkey, that Yaman had been given custody of the children by the Turkish courts, that their American mother, Linda Margherita Yaman, a/k/a Linda Margherita Polizzi (“Polizzi”),1 wrongfully removed the children in 2007 and then hid them, and that this prevented Yaman from locating them and filing his petition for return until he recently found them.
The mother, Polizzi, argued against return, asserting substantively different defenses: (1) under Article 12 of the Convention, that the children were “now settled” in the United States and so could not be returned; and (2) under Article 13, that the father had sexually abused his elder daughter (a claim rejected by the Turkish courts), and so return would pose a “grave risk” to the children. Yaman has appealed, and we have expedited the appeal, as required by the Convention. Id. art. 2.
In a carefully reasoned analysis, the district judge concluded that neither equitable tolling nor equitable estoppel applied to bar the mother from asserting the “now settled” defense and concluded the children were “now settled.” It held that it had no authority under Article 12, then, to order the return of the children under the Convention. In an alternate holding, it concluded that if it did have authority nonetheless to order return, it would not order return, based on the facts.
The district court also rejected the claims of sexual abuse under Article 13. Both parents appeal from those portions of the findings adverse to them.
As to the rejection of the Article 13 defense raised by the mother's cross appeal, we hold that the district court committed no error of law and that its conclusions are well supported by the evidence. We reject the cross-appeal.
The Article 12 issues are serious and present issues of first impression for us. Article 12 of the Convention provides that “[w]here a child has been wrongfully removed” from one contracting state to another or wrongfully retained in a contracting state and, at the date of the commencement of judicial proceedings, “a period of less than one year has elapsed” from the date of the wrongful removal or retention, the child shall be “return[ed]” “forthwith.” Convention, art. 12. The Convention further provides that “even where the proceedings have been commenced after the expiration of the period of one year,” the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Id.
The questions presented by the father's appeal are as follows:
(1) Whether equitable tolling applies to the one-year period that triggers the availability of the “now settled” defense under Article 12.
(2) Whether, as a matter of law, the conclusion that the child is “now settled” under Article 12 precludes a court from ordering return.
We hold that the Convention does not allow a federal district court to toll equitably the one-year period that must elapse before a parent can assert the “now settled” defense. In so doing, we join the Second Circuit, see Lozano v. Alvarez, 697 F.3d 41, 51 (2d Cir.2012), cert. granted in part,––– U.S. ––––, 133 S.Ct. 2851, 186 L.Ed.2d 907 (2013), and differ from the Ninth and Eleventh Circuits, see Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008); Furnes v. Reeves, 362 F.3d 702, 723–24 (11th Cir.2004). The Supreme Court has granted certiorari as to this first question. Lozano v. Alvarez, ––– U.S. ––––, 133 S.Ct. 2851, 186 L.Ed.2d 907 (2013).
We also hold that the Convention does not prevent the district court from ordering the return of “now settled” children, and the court erred in holding otherwise. The court, at that point, should analyze the return question under principles of equity consistent with the Convention's purposes, an analysis it undertook in its alternative holding. We review the alternative holding under an abuse of discretion standard, and find none.
Yaman and Polizzi met in 1997 when Yaman, a native and citizen of Turkey, was a graduate student at Wayne State University in Detroit, Michigan. The two were married in August 2000 in Turkey, and then returned to the United States.
Their first child, K.Y., was born in the United States on March 5, 2002. Shortly thereafter, Yaman received a teaching appointmentat the Middle East Technical University in Turkey. The family moved to Turkey. Both Polizzi and the child obtained dual United States/Turkish citizenship. The couple's second child, E.Y., was born in Turkey on August 11, 2003, and is also a citizen of the United States and Turkey.
Yaman and Polizzi began to have marital difficulties sometime in 2004. In December 2004, Yaman and Polizzi separated. Yaman moved out of the family home; the two children remained with Polizzi.
In February 2005, Yaman filed for divorce in Turkish Family Court; Polizzi filed counter-suit in March 2005. The children continued to live with the mother during the course of the divorce proceedings. On March 13, 2006, the Family Court issued an order granting Yaman sole custody of the two children. Polizzi appealed to the Turkish Supreme Court of Appeals. During the pendency of that appeal, the children continued to stay with the mother.
On April 3, 2007, the Turkish Supreme Court of Appeals upheld the decision of the Family Court awarding sole custody of the two children to Yaman. Polizzi appealed that decision as well. The Supreme Court of Appeals issued a second decision affirming the judgment of the Family Court on July 16, 2007. On August 3, 2007, the Family Court entered its final ruling, finalizing the order awarding Yaman sole custody, consistent with the decision of the Supreme Court of Appeals.
Without notice to the father or the court, Polizzi left Turkey with the children by boat in August 2007. For help in escaping Turkey, Polizzi purchased the services of a self-proclaimed child “snatch-back” specialist. Polizzi and the children first travelled to Athens, Greece.2 Polizzi continued to travel with the two children through several European countries before arriving in Andorra. As Polizzi was aware, Andorra was and is not a signatory to the Convention. Polizzi remained in Andorra with the two children from October 2007 to April 2010. At no point did the mother inform the father of her or the children's whereabouts.
On May 22, 2009, Polizzi petitioned the United States Department of State to issue the two children passports, again seeking a waiver of the two-parent consent requirement. Polizzi refused to disclose her location to State Department officials. The State Department initially denied Polizzi's petition. It ultimately issued the children single-use, direct return passports to the United States, although it cautioned that it “does not and cannot condone” Polizzi's violation of the Turkish custody order.
Polizzi and the two children arrived in the United States in April 2010. Polizzi drove the children first to Michigan, and then to Missouri, before settling in New Hampshire in May 2010.
Around August 2007, Yaman asked a friend to look for the children at Polizzi's mother's home in Michigan. In January 2008, Yaman filed an application under the Convention with the Central Authority of Turkey, saying he believed the two children to be residing with Polizzi's parents in Michigan. In February 2008, the Central Authority contacted the United States Department of State. In January 2009, the State Department's Office of Children's Issues deactivated Yaman's application, believing that the children were in Europe, not the United States. In April 2010, the State Department sent Yaman a letter informing him that the children had been issued passports for direct return to the United States. Yaman forwarded that letter to the Central Authority of Turkey. On May 12, 2010, the Central Authority requested that the Office of Children's Issues reactivate Yaman's application. After various attempts, the State Department finally located the mother and children in New Hampshire on December 19, 2011. The State Department cautioned Yaman against filing a petition with a New Hampshire court before Polizzi's specific address could be confirmed, fearing that Polizzi might flee. As of June 5, 2012, Polizzi's New Hampshire address was still unconfirmed. Yaman decided to move forward with the Hague petition for return despite the lack of confirmation.
On June 12, 2012, Yaman filed a petition in the District Court for the District of New Hampshire pursuant to Article 2 of the Convention and the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. (“ICARA”), requesting an order...
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