In the Matter of Ismail Yaman and Linda Yaman
167 N.H. 82
N.H.2014Background
- Ismail Yaman (Turkish citizen) was awarded sole legal custody of two children by a Turkish Family Court in March 2006 after hearings and expert evaluations; the decision was affirmed on appeal and finalized in August 2007.
- Shortly after the Turkish order became final, Linda Yaman (U.S. citizen) left Turkey with the children without notice, lived in Andorra and then brought the children to the U.S.; they resided in New Hampshire from May 2010.
- Petitioner Ismail located the children in New Hampshire and sought their return under the Hague Convention and ICARA in federal court; the district court found the children were "settled" in New Hampshire and declined to return them, but the First Circuit affirmed a denial of return on equitable grounds while rejecting the "settled" jurisdictional bar.
- Petitioner then registered the Turkish custody order in New Hampshire state court under the UCCJEA; the Circuit Court (Family Division) found Turkey had exercised jurisdiction in substantial conformity with the UCCJEA, rejected Linda’s challenges, registered the order, and ordered return of the children (stayed pending appeal).
- On appeal, the New Hampshire Supreme Court considered whether enforcement should be denied because (1) Linda lacked an opportunity to be heard in Turkey, (2) Turkish custody law violates fundamental human rights, (3) enforcement would violate New Hampshire public policy/best interests of the children, (4) due process required an evidentiary hearing in New Hampshire, and (5) the court failed to communicate with the Turkish court regarding temporary emergency jurisdiction.
Issues
| Issue | Plaintiff's Argument (Yaman) | Defendant's Argument (Linda) | Held |
|---|---|---|---|
| Whether respondent was denied "opportunity to be heard" under RSA 458-A:16(II) | Turkish proceedings were regular and respondent had counsel; she had notice and a full chance to litigate | She lacked an interpreter, could not meaningfully participate, could not access or challenge experts, and thus was denied an opportunity to be heard | Held: Respondent was not denied opportunity to be heard; presence, counsel, hearings, expert evaluations, and appeals in Turkey satisfied a flexible, foreign-court standard |
| Whether Turkish custody law violates "fundamental principles of human rights" under RSA 458-A:4(III) | Turkish law is valid; substantive law does not offend fundamental rights | Turkish procedures and the lack of joint custody violate fundamental human rights | Held: Turkey’s custody law does not violate fundamental human rights; exception is for only the most egregious violations and focuses on substantive law, not procedural differences |
| Whether enforcing the foreign order would violate New Hampshire public policy / children’s best interests | UCCJEA governs jurisdiction; best interests are for the issuing court once jurisdiction is established | Returning children would be against their best interests and NH public policy | Held: Public-policy/best-interest objection rejected; UCCJEA limits NH courts to jurisdictional inquiry and deference to the foreign court’s custody determination |
| Whether respondent was entitled to an evidentiary hearing in NH before enforcement | She requested a full evidentiary hearing to prove defects in Turkish proceedings | Petitioner relied on record and offers of proof; NH court held a hearing where respondent could present evidence | Held: NH court did not violate due process; it held a hearing, considered offers of proof and record evidence, and was entitled to weigh credibility without further live testimony |
| Whether the circuit court should have communicated with the Turkish court under emergency-jurisdiction provisions before stay/return | Because the court stayed enforcement, it must have invoked emergency jurisdiction and therefore should have communicated with Turkey to consider ceding jurisdiction | The court did not invoke temporary emergency jurisdiction; communication was not required; stay was erroneous but benefited respondent so she lacks standing to challenge it | Held: No requirement to communicate with Turkish court here; temporary emergency jurisdiction was not properly invoked; even if error, respondent cannot challenge a stay that benefited her |
Key Cases Cited
- In the Matter of Lyon & Lyon, 95 A.3d 630 (N.H. 2014) (standard of statutory interpretation and de novo review)
- Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013) (federal Hague/ICARA proceedings; equitable denial of return affirmed)
- Simmonds v. Parks, 329 P.3d 995 (Alaska 2014) (flexible standard for "opportunity to be heard" in foreign proceedings)
- Poluhovich v. Pellerano, 861 A.2d 205 (N.J. Super. Ct. App. Div. 2004) (distinguishing procedure vs substantive law for comity/UCCJEA analysis)
- In the Matter of Kosek & Kosek, 151 N.H. 722 (N.H. 2005) (describing right to be heard in custody proceedings)
- Klont v. Klont, 342 N.W.2d 549 (Mich. Ct. App. 1983) (party’s purposeful nonattendance does not preclude finding of opportunity to be heard)