International Child Abduction – A Pressing Problem Which Continues to Challenge the Courts

     Children are usually abducted from the United States and taken to foreign countries in cases involving divorcing spouses where one of them was either born in or grew up in a foreign country. After all, what better way to seek revenge against your former spouse than to abduct the child to a foreign country ? Depending upon the country involved, it can be a nightmare to obtain the child’s return. Sometimes it takes years; sometimes it doesn’t happen at all. 

     Now the Second Circuit has ruled that there is a potential remedy to an aggrieved parent under the Hague Convention, an international treaty. Look for this case to ultimately land in the United States Supreme Court based upon a conflict in the federal circuit courts of appeal.

The following synopsis of the case first appeared in the Reuters News Service.

     Federal courts can enforce a parent’s right of access to their children under the Hague Convention, an international treaty established in part to help recover children abducted and taken by one parent to another country, an appeals court in New York has ruled.

The ruling by the 2nd U.S. Circuit Court of Appeals differs from a 2006 ruling by the 4th U.S. Circuit Court of Appeals, which placed jurisdiction under the convention with the U.S. State Department.

“The statutory basis for a federal right of action to enforce access rights under the Hague Convention could hardly be clearer,” Circuit Judge Jose Cabranes wrote for the three-judge panel in Monday’s unanimous decision. The panel also included Circuit Judges Pierre Leval and Robert Sack.

The case stems from a custody dispute involving Zeynep Tekiner Ozatlin, who took her two children from Turkey to the United States in 2011. She returned them to their father in Turkey in July 2012 under order from U.S. District Judge Laura Taylor Swain in Manhattan.

Ozatlin appealed to the 2nd Circuit. Her case rested in part on the argument that federal district courts do not have jurisdiction under the International Child Abduction Remedies Act, a U.S. law created in 1988.

     That U.S. law was drafted to implement the Hague Convention on the Civil Aspects of International Child Abduction, a multilateral treaty created in 1980 “to protect children from the harmful abduction or retention across international boundaries by providing a procedure to bring about their prompt return,” according to the website for the Hague Conference on Private International Law. Eighty-nine states have signed the International Child Abduction treaty, according to its website.

     Ozatlin contended that petitioners seeking to enforce “rights of access” need to go through state courts or the State Department, which is the United States’ designated “Central Authority” under the Hague Convention. “Rights of access” include the right “to take a child for a limited period of time to a place other than the child’s habitual residence,” according to the treaty.

    Ozatlin’s argument, Cabranes wrote, “is not jurisdictional in nature” but instead goes to whether the International Child Abduction Remedies Act creates a federal right of action.


     In the 2006 decision, Cantor v. Cohen, the 4th Circuit ruled that it did not. But it misinterpreted an article in the Hague Convention on which its decision heavily relied, Article 21, as saying that access rights can only be vindicated by applying to the State Department, Cabranes wrote.

     The article “provides that efforts to secure rights of access ‘may’ be initiated through an application to a country’s Central Authority, not that it ‘may only’ be pursued in this way,” Cabranes wrote.

     The Hague Convention also explicitly states elsewhere that petitioners can seek to enforce access rights through “judicial or administrative authorities of a Contracting State, whether or not under the provision of this Convention,” Cabranes wrote, quoting from the treaty.

     Cabranes also said that the 2nd Circuit’s decision was bolstered by the fact that the State Department has no administrative apparatus to enforce rights of access.

     “In sum, even though not required under Article 21, federal law in the United States provides an avenue for aggrieved parties to seek judicial relief directly in a federal district court or an appropriate state court,” Cabranes wrote.

     The 2nd Circuit’s opinion affirms Swain’s order to return the children to the father. The man, Nurettin Ozatlin, “met his burden of showing that he retained custody rights under Turkish law, and that the Mother’s removal of the children from Turkey interfered with his exercise of those rights,” Cabranes wrote.

     The 2nd Circuit did vacate Swain’s award of necessary expenses incurred from the case to the father and remanded it for further proceedings.

      The appeals court reasoned that the mother had a “reasonable basis for removing the children to the United States” because Turkish courts had repeatedly implied that the children could live with her in the United States.

The case is Nurettin Ozaltin v. Zeynep Tekiner Ozatlin, 2nd Circuit Court of Appeals, No. 12-2371.



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