Yaman v. Yaman
730 F.3d 1
1st Cir.2013Background
- Father (Yaman), a Turkish citizen, obtained sole custody of two daughters from Turkish courts; mother (Polizzi) wrongfully removed them from Turkey in 2007 and concealed their location until 2010–2011.
- Children (U.S./Turkish citizens) have lived in the U.S. since April–May 2010 and were found in New Hampshire in December 2011.
- Yaman filed a Hague Convention/ICARA petition in federal district court (D. N.H.) in June 2012 seeking return to Turkey; district court held a three-day bench trial.
- District court found removal wrongful, father diligent in locating children, mother concealed them, and children were “now settled” in the U.S.; it rejected mother’s Article 13 “grave risk” abuse defense.
- District court concluded that (a) equitable tolling does not apply to Article 12’s one‑year trigger (and denied petitioner’s preclusion motion), and (b) it lacked authority to order return of a child found “now settled,” but alternatively denied return on equitable grounds.
Issues
| Issue | Yaman (plaintiff) argument | Polizzi (defendant) argument | Held |
|---|---|---|---|
| Whether Article 12’s one‑year period is subject to equitable tolling | One‑year period should toll where abducting parent conceals child, so petitioner shouldn’t lose right to oppose “now settled” defense | Article 12’s text/time trigger controls; equitable tolling not required | Court: Article 12 is not subject to equitable tolling; join Second Circuit (Lozano) and reject Ninth/Eleventh Circuits |
| Whether a federal court may order return of a child found “now settled” | Federal courts retain equitable discretion to order return despite a finding of settledness | A settledness finding precludes return under Article 12; district court lacked authority to return | Court: Federal district courts do have equitable authority to order return of a “now settled” child; district court erred to hold otherwise |
| Whether Article 13 “grave risk” exception was established (alleged sexual abuse) | Polizzi: past sexual abuse of older child creates grave risk, so return should be refused | Yaman: denies abuse; Turkish courts rejected abuse claims; experts inconclusive | Court: Affirmed district court — mother failed to show past abuse by preponderance (and grave risk by clear & convincing evidence); district factual findings not clearly erroneous |
| Whether district court abused discretion in its alternative decision declining return on equitable grounds | Yaman: district court gave settledness dispositive weight and failed to balance equitable factors favoring return | Polizzi: district court appropriately balanced factors (children’s age, settlement, effect of concealment, deterrence) | Court: No abuse of discretion — district considered relevant factors and reasonably declined to order return |
Key Cases Cited
- Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012) (Article 12 not subject to equitable tolling; federal courts retain discretion)
- Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) (Article 12 one‑year period treated like statute of limitations)
- Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) (equitable tolling applies to Article 12)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (recognizing discretion to return even when an exception is proved)
- Feder v. Evans‑Feder, 63 F.3d 217 (3d Cir. 1995) (courts may return child despite established defense in appropriate cases)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (federal court discretion to return despite defenses)
- Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) (same)