48 A.3d 1130
N.J. Super. Ct. App. Div.2012Background
- Father abducted M.U. from Turkey to the United States in June 2008 for a trip; removal found wrongful under Article 3 of the Hague Convention.
- Mother sought return under Hague Article 12 and ICARA, but action filed in New Jersey after more than one year due to delays and logistical obstacles.
- Trial court found M.U. well-settled in the United States and equitably tolled Article 12’s one-year period based on bureaucratic delays.
- Trial court ultimately ordered M.U. to be returned to Turkey; a supplemental remand found well-settled status, but tolling error persisted on appeal.
- Turkish court subsequently awarded Mother full custody; appellate court affirmed return, remanding for expeditious custody transfer under the original order.
- The court clarified that Article 12 tolling is only permitted where the respondent concealed the child’s location; it preserved the return order despite well-settled findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article 12 tolling extends filing deadline? | Father | Mother | Tolling not allowed except concealment; trial court erred |
| Well-settled defense bars return? | Mother | M.U. well-settled in US | Well-settled does not automatically bar return; court may order return |
| Grave risk of harm defense applied correctly? | Father | Grave risk exists | No grave risk proven; defense narrowly construed; no reversal on grave risk |
| In camera interview required for child input? | Father | Interview not necessary | No plain error; discretion to interview lies with judge; interview not required for nine-year-old |
Key Cases Cited
- Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) (equitable tolling discussed; concealment central to tolling analysis (Article 12))
- Belay v. Getachew, 272 F. Supp. 2d 553 (D. Md. 2003) (concealment supported tolling under Article 12)
- Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) (tolling permitted where abducting parent concealed child’s location)
- Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) (concealment supports tolling; Article 12 interpretation favored tolling)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (well-settled status does not automatically foreclose return; Article 12 discretion to order return)