Ozaltin v. Ozaltin
873 F. Supp. 2d 536
S.D.N.Y.2012Background
- Petitioner Ozaltin and Respondent Ozaltin are dual Turkish-US citizens with two children, born in New York.
- Until Dec 22, 2010, the family resided primarily in Turkey; children attended school there.
- Respondent allegedly removed the children to New York on Dec 22, 2010 after a dispute; Petitioner contests consent.
- Petitioner filed Hague petition with Turkish Ministry Jan 7, 2011; Turkish divorce actions ensued with provisional custody disputes.
- Turkish court orders granted Respondent visitation and limited custody; Respondent later allowed travel with the children overseas.
- The children returned to the United States in Nov 2011; Turkish court later reaffirmed visitation; petitioner sought return and access enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Respondent's removal/retention was wrongful | Ozaltin contends removal violated Turkish custody rights. | Ozaltin claims consent or non-violation due to provisional custody orders. | Removal/retention deemed wrongful; return to Turkey ordered. |
| WhetherTurkey was the children's habitual residence and custody rights existed | Turkey was the habitual residence; petitioner exercised custody. | Turkish orders implied Respondent held custody during divorce proceedings. | Turkey was habitual; petitioner met custody-right burden; return appropriate. |
| Whether well-settled defense defeats repatriation | Well-settled defense not satisfied; disruption and harm from return possible. | Children are well settled in New York with ties and routine. | Defendant failed to prove well-settled defense; no disruption defense applied. |
| Whether Court has jurisdiction to enforce rights of access under Article 21/ICARA | ICARA allows enforcement of access rights in US courts. | Article 21 limits enforcement to separate central-authority procedures. | Court has jurisdiction to enforce access rights; orders Respondent to comply with Turkish access order. |
| Whether costs should be awarded to petitioner under Article 26/ICARA | Costs and expenses should be borne by Respondent. | Costs to be determined; no specific argument presented here. | Respondent ordered to pay necessary expenses; further submissions guided by schedule. |
Key Cases Cited
- In re Lozano, 809 F.Supp.2d 197 (S.D.N.Y. 2011) (test for wrongful removal and retention under Hague Convention)
- In re Koc, 181 F.Supp.2d 136 (E.D.N.Y. 2001) (well-settled defense framework and discretionary return analysis)
- Navani v. Shahani, 496 F.3d 1121 (10th Cir. 2007) (Hague Convention goals and protective framework in cross-border custody)
- Abbott v. Abbott, 130 S. Ct. 1983 (2010) (broad interpretation of rights of custody under Hague Convention)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (limits of well-settled defense and deference to home forum custody law)