By Bernard Vaughan
NEW YORK, Feb 12 (Reuters) - Federal courts can enforce a
parent's right of access to their children under the Hague
Convention, an international treaty established in part to help
recover children abducted and taken by one parent to another
country, an appeals court in New York has ruled.
The ruling by the 2nd U.S. Circuit Court of Appeals differs
from a 2006 ruling by the 4th U.S. Circuit Court of Appeals,
which placed jurisdiction under the convention with the U.S.
"The statutory basis for a federal right of action to
enforce access rights under the Hague Convention could hardly be
clearer," Circuit Judge Jose Cabranes wrote for the three-judge
panel in Monday's unanimous decision. The panel also included
Circuit Judges Pierre Leval and Robert Sack.
The case stems from a custody dispute involving Zeynep
Tekiner Ozatlin, who took her two children from Turkey to the
United States in 2011. She returned them to their father in
Turkey in July 2012 under order from U.S. District Judge Laura
Taylor Swain in Manhattan.
Ozatlin appealed to the 2nd Circuit. Her case rested in part
on the argument that federal district courts do not have
jurisdiction under the International Child Abduction Remedies
Act, a U.S. law created in 1988.
That U.S. law was drafted to implement the Hague Convention
on the Civil Aspects of International Child Abduction, a
multilateral treaty created in 1980 "to protect children from
the harmful abduction or retention across international
boundaries by providing a procedure to bring about their prompt
return," according to the website for the Hague Conference on
Private International Law. Eighty-nine states have signed the
International Child Abduction treaty, according to its website.
Ozatlin contended that petitioners seeking to enforce
"rights of access" need to go through state courts or the State
Department, which is the United States' designated "Central
Authority" under the Hague Convention. "Rights of access"
include the right "to take a child for a limited period of time
to a place other than the child's habitual residence," according
to the treaty.
Ozatlin's argument, Cabranes wrote, "is not jurisdictional
in nature" but instead goes to whether the International Child
Abduction Remedies Act creates a federal right of action.
RIGHTS OF ACCESS
In the 2006 decision, Cantor v. Cohen, the 4th Circuit ruled
that it did not. But it misinterpreted an article in the Hague
Convention on which its decision heavily relied, Article 21, as
saying that access rights can only be vindicated by applying to
the State Department, Cabranes wrote.
The article "provides that efforts to secure rights of
access 'may' be initiated through an application to a country's
Central Authority, not that it 'may only' be pursued in this
way," Cabranes wrote.
The Hague Convention also explicitly states elsewhere that
petitioners can seek to enforce access rights through "judicial
or administrative authorities of a Contracting State, whether or
not under the provision of this Convention," Cabranes wrote,
quoting from the treaty.
Cabranes also said that the 2nd Circuit's decision was
bolstered by the fact that the State Department has no
administrative apparatus to enforce rights of access.
"In sum, even though not required under Article 21, federal
law in the United States provides an avenue for aggrieved
parties to seek judicial relief directly in a federal district
court or an appropriate state court," Cabranes wrote.
The 2nd Circuit's opinion affirms Swain's order to return
the children to the father. The man, Nurettin Ozatlin, "met his
burden of showing that he retained custody rights under Turkish
law, and that the Mother's removal of the children from Turkey
interfered with his exercise of those rights," Cabranes wrote.
The 2nd Circuit did vacate Swain's award of necessary
expenses incurred from the case to the father and remanded it
for further proceedings.
The appeals court reasoned that the mother had a "reasonable
basis for removing the children to the United States" because
Turkish courts had repeatedly implied that the children could
live with her in the United States.
The case is Nurettin Ozaltin v. Zeynep Tekiner Ozatlin, 2nd
Circuit Court of Appeals, No. 12-2371.
For Nurettin Ozatlin: Bonnie Ellen Rabin.
For Zeynep Tekiner Ozaltin: Jacob Buchdahl, William Merrill
and Arun Subramanian of Susman Godfrey.
(This story has been corrected, in the headline and first
paragraph, to say that the 2nd Circuit ruled that people have a
right to bring a lawsuit in federal courts to enforce the Hague
Convention. The previous version incorrectly said federal court
itself had a "right of action" under the ruling.)
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