297 F. Supp. 3d 874
N.D. Iowa2017Background
- Father (Ozgur Can Leonard) and mother (Rachel Lentz) married in Turkey; three children (I.Y.L., twins E.M.L. and S.M.L.) are dual U.S.–Turkish citizens and were living in Turkey before August 2016.
- Parents separated; mother moved children to Istanbul to stay with her parents; father lived on Gokceada and had limited physical contact with the children after the newborn period.
- Turkish family court divorce proceedings and a ne exeat/temporary injunction were filed in Turkey; mother removed the children to the U.S. on August 13, 2016 (allegedly unaware of the ne exeat).
- Father filed a Hague/ICARA petition seeking return of the children; mother defended on grounds of father’s acquiescence and that returning (especially E.M.L., who has end-stage renal disease) posed a grave risk of physical/psychological harm.
- After an evidentiary hearing, the magistrate judge held father failed to make a prima facie showing of wrongful removal/retention (he was not exercising custodial rights) and separately found the grave-risk exception applied to E.M.L.; the court denied the Hague petition and released the children’s passports to the mother.
Issues
| Issue | Father's Argument (Leonard) | Mother's Argument (Lentz) | Held |
|---|---|---|---|
| Habitual residence | Children habitually resided in Turkey before removal | Agreed children were habitually resident in Turkey | Found children were habitually resident in Turkey (Turkey) |
| Wrongful removal: exercise of custody rights | Father contends he retained parental custody rights under Turkish law and was exercising them | Mother argues father was not exercising custody (limited physical contact) | Father failed to prove by preponderance that he was exercising (or would have exercised) custodial rights at removal; prima facie case failed |
| Acquiescence (Article 13(a)) | Denies acquiescence; pursued Turkish court remedies and Hague process | Argues father’s post-removal conduct (requests for updates without repeated demands) showed acquiescence | Court found no consent or formal acquiescence; defense rejected |
| Grave risk (Article 13(b)) | Argues Turkish medical care could manage E.M.L.’s needs and mother could donate in Turkey | Argues returning E.M.L. would pose grave risk because transplant and follow-up care are available at UIHC but not shown available in Turkey; diplomatic visa suspension prevents mother’s immediate return as donor | Clear-and-convincing proof showed grave risk to E.M.L. if returned; E.M.L. not ordered returned; court kept siblings together in U.S. |
Key Cases Cited
- Silverman v. Silverman, 267 F.3d 788 (8th Cir. 2001) (Hague Convention aims to restore status quo ante and deter forum-shopping)
- Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995) (narrow scope of Hague inquiry; exceptions construed narrowly)
- Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) (habitual residence focuses on child’s acclimatization and settled purpose)
- Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) (parent cannot create new habitual residence by wrongful removal)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (treatment of Article 13 defenses and standards)
- Abbott v. Abbott, 560 U.S. 1 (2010) (interpretation of Convention and deference to habitual-residence law; international uniformity)
- Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012) (applying habitual-residence nation’s law to determine custody rights under Article 3)