The Supreme Court of NH affirmed the registration and enforcement of a Turkish custody order, returning the parties’ child to the mother. The parties are parents to one daughter, born in Turkey in 2011. She continuously lived in Turkey until 2019. She attended school and received medical care in Turkey. Her mother, prior to the divorce, brought the child to the U.S. once or twice every year to see her father, and the father came to Turkey once or twice a year to see his daughter. The parties were divorced in January 2015 by a Turkish court. The mother, Ms. Akin, has sole custody, and the father, Mr. Suljevic, has visitation. In 2019, the mother agreed for the daughter to spend July and August in the United States with her father. At the end of the 2-month visit, the father refused to return the daughter to Turkey. The mother accepted employment during the 2020-2021 timeframe in Massachusetts, so she could visit with the daughter, which the father allowed. She continued to request the child’s return to her, but the father continuously rejected these requests.
In April 2021, mother filed a lawsuit in New Hampshire state court seeking the child’s return. Her delay in doing so related to COVID and the difficulty in finding legal counsel. The father was served on May 3, 2021. The next day, the father requested the trial court exercise temporary emergency jurisdiction because the child was present in NH and was threatened with mistreatment or abuse by the mother if returned to her. On 2 occasions, he saw the mother kick the child with force, like a soccer ball. After a hearing, the court denied the father’s motion and granted the mother’s petition. The father appealed, and the appellate court affirmed.
The mother cited two legal bases for her request before the court: the Hague Abduction Convention and the UCCJEA.
Hague Abduction Convention: The father conceded that the mother met her burden for a prima facie case. He argued that the mother brought her lawsuit more than 1 year from the wrongful retention, and the child is now settled. The trial court apparently agreed that the child was now settled, but nonetheless used its discretion to return the child, citing to Article 18 of the treaty. The court also cited to Justice Alito’s concurrence in Lozano v. Alvarez where the justice listed several factors that could outweigh a child’s interest in remaining in her new environment: the child’s need for contact with the non-offending parent, the need to discourage inequitable conduct, and the need to deter international abductions. The father misunderstood the trial judge’s conclusions on the mother’s Hague Abduction Convention argument, however, so the appellate court rejected his arguments. [Note: discretion is going to be a big issue in the case of Saada v. Golan, to be heard by the Supreme Court this calendar year.]
UCCJEA: The father submitted his allegations against the mother by affidavit, which the trial judge did not credit. The father further never attempted to vacate or modify the Turkish custody order. He further let the mother see the child in NH. The court was not obligated to hold an evidentiary hearing, and was permitted, in its discretion, to render a decision on the papers, and by proffers and arguments by counsel. The father also argued that he was never afforded the opportunity to be heard in the Turkish proceedings. However, American due process standards are not what should be applied in making this determination. The father, although self-represented, appeared for the uncontested Turkish proceedings, and agreed to the terms.