LYNCH, Chief Judge.
The district court denied the petition of Ismail Ozgur Yaman ("Yaman") for return of his two daughters, E.Y., now 10, and K.Y., now 11, to Turkey, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (Mar. 26, 1986) ("Convention").
The two children have lived with their mother since 2004, having lived with their mother and their father before that. The mother and two children have lived in the United States since April 2010, and in New Hampshire since May 2010. There is no question that the habitual residence of the children was Turkey, that Yaman had been given custody of the children by the Turkish courts, that their American mother, Linda Margherita Yaman, a/k/a Linda Margherita Polizzi ("Polizzi"),
The mother, Polizzi, argued against return, asserting substantively different defenses: (1) under Article 12 of the Convention, that the children were "now settled" in the United States and so could not be returned; and (2) under Article 13, that the father had sexually abused his elder daughter (a claim rejected by the Turkish courts), and so return would pose a "grave risk" to the children. Yaman has appealed, and we have expedited the appeal, as required by the Convention. Id. art. 2.
The district court also rejected the claims of sexual abuse under Article 13. Both parents appeal from those portions of the findings adverse to them.
As to the rejection of the Article 13 defense raised by the mother's cross appeal, we hold that the district court committed no error of law and that its conclusions are well supported by the evidence. We reject the cross-appeal.
The Article 12 issues are serious and present issues of first impression for us. Article 12 of the Convention provides that "[w]here a child has been wrongfully removed" from one contracting state to another or wrongfully retained in a contracting state and, at the date of the commencement of judicial proceedings, "a period of less than one year has elapsed" from the date of the wrongful removal or retention, the child shall be "return[ed]" "forthwith." Convention, art. 12. The Convention further provides that "even where the proceedings have been commenced after the expiration of the period of one year," the court "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Id.
The questions presented by the father's appeal are as follows:
We hold that the Convention does not allow a federal district court to toll equitably the one-year period that must elapse before a parent can assert the "now settled" defense. In so doing, we join the Second Circuit, see Lozano v. Alvarez, 697 F.3d 41, 51 (2d Cir.2012), cert. granted in part, ___ U.S. ___, 133 S.Ct. 2851, ___ L.Ed.2d ___ (2013), and differ from the Ninth and Eleventh Circuits, see Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008); Furnes v. Reeves, 362 F.3d 702, 723-24 (11th Cir.2004). The Supreme Court has granted certiorari as to this first question. Lozano v. Alvarez, ___ U.S. ___, 133 S.Ct. 2851, ___ L.Ed.2d ___ (2013).
We also hold that the Convention does not prevent the district court from ordering the return of "now settled" children, and the court erred in holding otherwise. The court, at that point, should analyze the return question under principles of equity consistent with the Convention's purposes, an analysis it undertook in its alternative holding. We review the alternative holding under an abuse of discretion standard, and find none.
Yaman and Polizzi met in 1997 when Yaman, a native and citizen of Turkey, was a graduate student at Wayne State University in Detroit, Michigan. The two were married in August 2000 in Turkey, and then returned to the United States.
Their first child, K.Y., was born in the United States on March 5, 2002. Shortly thereafter, Yaman received a teaching appointment
Yaman and Polizzi began to have marital difficulties sometime in 2004. In December 2004, Yaman and Polizzi separated. Yaman moved out of the family home; the two children remained with Polizzi.
In February 2005, Yaman filed for divorce in Turkish Family Court; Polizzi filed counter-suit in March 2005. The children continued to live with the mother during the course of the divorce proceedings. On March 13, 2006, the Family Court issued an order granting Yaman sole custody of the two children. Polizzi appealed to the Turkish Supreme Court of Appeals. During the pendency of that appeal, the children continued to stay with the mother.
On April 3, 2007, the Turkish Supreme Court of Appeals upheld the decision of the Family Court awarding sole custody of the two children to Yaman. Polizzi appealed that decision as well. The Supreme Court of Appeals issued a second decision affirming the judgment of the Family Court on July 16, 2007. On August 3, 2007, the Family Court entered its final ruling, finalizing the order awarding Yaman sole custody, consistent with the decision of the Supreme Court of Appeals.
Without notice to the father or the court, Polizzi left Turkey with the children by boat in August 2007. For help in escaping Turkey, Polizzi purchased the services of a self-proclaimed child "snatch-back" specialist. Polizzi and the children first travelled to Athens, Greece.
On May 22, 2009, Polizzi petitioned the United States Department of State to issue the two children passports, again seeking a waiver of the two-parent consent requirement. Polizzi refused to disclose her location to State Department officials. The State Department initially denied Polizzi's petition. It ultimately issued the children single-use, direct return passports to the United States, although it cautioned that it "does not and cannot condone" Polizzi's violation of the Turkish custody order.
Polizzi and the two children arrived in the United States in April 2010. Polizzi drove the children first to Michigan, and then to Missouri, before settling in New Hampshire in May 2010.
Around August 2007, Yaman asked a friend to look for the children at Polizzi's mother's home in Michigan. In January 2008, Yaman filed an application under the Convention with the Central Authority of Turkey, saying he believed the two children to be residing with Polizzi's parents in Michigan. In February 2008, the Central Authority contacted the United States Department of State. In January 2009,
On June 12, 2012, Yaman filed a petition in the District Court for the District of New Hampshire pursuant to Article 2 of the Convention and the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. ("ICARA"), requesting an order to return the two children to Turkey. Yaman also requested provisional remedies to ensure that both Polizzi and the two children remained in New Hampshire throughout the course of the proceedings. On June 15, 2012, the district court ordered provisional remedies and appointed a guardian ad litem to issue a report on the two children's behalf.
One month before the court's scheduled evidentiary hearing, Yaman filed a motion to preclude Polizzi from asserting the affirmative "now settled" defense under Article 12 of the Convention. Yaman argued that Polizzi "should not be permitted to avail herself of t[hat] defense where she has, for years, actively and egregiously attempted to evade legal proceedings." The district court denied the motion. Yaman v. Yaman, 919 F.Supp.2d 189, 198 (D.N.H.2013). In an order dated January 28, 2013, the district court explained that neither the text nor the drafting history of the Convention supported the argument that Article 12's one-year period was subject to equitable tolling. Id. at 192-93. Moreover, the district court observed, the Executive Branch had taken the position that equitable tolling does not apply. Id. at 193-96. Conceding that the Courts of Appeals were divided on the issue, the district court found the arguments in favor of the applicability of equitable tolling "unpersua[sive]." Id. at 196. Last, the district court noted that the judicial decisions of other signatory nations supported the proposition that Article 12's "now settled" defense does not equitably toll. Id. at 197.
On January 22, 2013, the district court commenced a three-day bench trial, which included evening hearings. The district court heard testimony concerning, inter alia, the removal of the children from Turkey, as well as the mother's extensive efforts to conceal their location thereafter. Most of these allegations went uncontested. Yaman also testified as to his continuous attempts to locate the two children after they had been removed.
The court heard testimony from the mother about how settled the children were in the community, their friendships, their schooling, and her concealment of their location, among other things. The mother also gave testimony concerning her allegations of sexual abuse of the older daughter. Polizzi testified that, during a January 2004 visit to her family in the United States, her grandmother, then in her early 80s, thought she observed Yaman
The court also heard testimony from the guardian ad litem for the children, who testified that his interviews with their teachers showed no red flags, and that other witnesses confirmed that the children were assimilating well. The guardian ad litem, after a thoughtful explanation, concluded the children were unable to provide a mature judgment about where they should live. The court also considered the guardian ad litem's formal report and those of experts concerning each of the children. The court heard testimony from experts for the respondent and the petitioner, who did not interview the children (the guardian ad litem had advised against it) but had reviewed documents including reports prepared by experts who had.
The father also testified consistently with all of the assertions in his petition. He denied any sexual abuse
The district court denied Yaman's petition in an oral order from the bench after trial. Yaman had made out his prima facie case for return, with Polizzi conceding both that she had removed the children in violation of Yaman's custody rights and that the children were habitually resident in Turkey immediately before they were removed. See Convention, art. 3. The district
The district court rejected Polizzi's argument that, pursuant to Article 13 of the Convention, return should be refused because it would pose a "grave risk" of harm to the children. As to the specific incidents alleged, the district court held that it had received no admissible evidence regarding Polizzi's grandmother's alleged observation.
As to the expert reports and testimony, the district court observed that, with one "[un]persuasive" exception,
The district court then found that the children were "now settled," applying the totality of the circumstances test articulated by the Ninth Circuit in Duarte, 526 F.3d at 576. The district court assigned particular weight to the guardian ad litem's testimony and report, describing it as "the best evidence on this point."
Having found that the children were "now settled," the district court went on to hold that, in light of this finding, it lacked discretion to order the children's return under the language of Article 12. The district court reasoned that the text of Article 12, when contrasted with the text of Articles 13 and 20, indicated that the drafters of the Convention intended that courts be required to refuse the return of a "now settled" child. As to Article 18 of the Convention, which clarifies that the Convention's various provisions "do not limit the power of a judicial or administrative authority to order the return of the child at any time," Convention, art. 18, the district court reasoned that, although Article 18 "makes quite clear that the Convention does not in any way limit" a court's power to order return, a federal district court, unlike a state court, does not enjoy a general return power. In reaching this conclusion, the district court relied heavily upon the drafting history of the Convention, which, it thought, indicated that its drafters envisioned Article 18 discretion as extending only so far as a court is able to entertain a decision on the merits. Because a federal district court is sharply limited in its ability to consider the merits of a custody claim, the district court inferred that it lacked the general authority to remove to which Article 18 refers.
Recognizing the novelty of its sua sponte federal/state court distinction, the court went on to hold in the alternative that, even if it did have authority to order the return of a child "now settled," it would not exercise that authority here. The district court articulated various considerations in favor of return, including the interest in a child's being "reunited with the parent ... from whom [she] w[as] wrongfully removed," the interest in "effectively punish[ing]" Polizzi, and the interest in "deter[ring] future clever abductors." On the other hand, the district court observed, the two children were of such ages that "attachments in a community [we]re particularly important," remarking "[t]he settlement issue would not be nearly so big in my mind if they were 14 or 15 or if they were three and five." Moreover, the district court noted, although Polizzi had made efforts to conceal the children's location, it "s[aw] very little evidence that she did anything that would be damaging to the ... children's psyche." This was consistent with the district court's more general observation that Polizzi had "acted under a mistaken but well-intentioned
On February 14, 2013, Yaman filed a timely notice of appeal from the district court's denial of his petition. And, on May 3, 2013, Yaman filed in a New Hampshire state court a petition for expedited enforcement of the Turkish custody order, pursuant to the New Hampshire Uniform Child Custody Jurisdiction and Enforcement Act, N.H.Rev.Stat. Ann. § 458-A:29.
"We review the district court's interpretation of the Hague Convention de novo," Danaipour v. McLarey, 286 F.3d 1, 13 (1st Cir.2002) ("Danaipour I"); so too its application of the Convention to facts. Felder v. Wetzel, 696 F.3d 92, 98 (1st Cir. 2012). "We review the district court's factual findings for clear error...." Whallon v. Lynn, 230 F.3d 450, 454 (1st Cir.2000). And we review for abuse decisions left to the "sound discretion" of the district court. Kufner v. Kufner, 519 F.3d 33, 40 (1st Cir.2008).
"The interpretation of a treaty, like the interpretation of a statute, begins with its text." Medellín v. Texas, 552 U.S. 491, 506, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). "[D]rafting history ... may of course be consulted to elucidate a text that is ambiguous." Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). We also take into account the signatories' intentions and expectations. See Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982).
Importantly, "[i]t is well settled that the Executive Branch's interpretation of a treaty `is entitled to great weight.'" Abbott v. Abbott, 560 U.S. 1, 130 S.Ct. 1983, 1993, 176 L.Ed.2d 789 (2010) (quoting Sumitomo Shoji Am., Inc., 457 U.S. at 185, 102 S.Ct. 2374). Further, "[i]n interpreting any treaty, `[t]he opinions of our sister signatories ... are entitled to considerable weight.'" Id. (second alteration and omission in original) (quoting El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999)). And, of course, we look to the views of our sister circuits. See DiFiore v. Am. Airlines, Inc., 646 F.3d 81, 87-88 (1st Cir.2011).
On cross-appeal, Polizzi contends that the district court erred in denying her Article 13 "grave risk" defense. Under Article 13, a judicial authority "is not bound" to order return of a child where "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Convention, art. 13. At trial, Polizzi's "grave risk" argument was based entirely on claims of past abuse. Polizzi argues that
Polizzi argues first that the district court improperly required proof of abuse to a reasonable degree of medical certainty. Not so. As the district court correctly observed, a party opposing return based on Article 13's "grave risk" exception bears the burden of establishing that exception by clear and convincing evidence. 42 U.S.C. § 11603(e)(2)(A); Danaipour I, 286 F.3d at 13. The district court then held correctly that subsidiary facts — here, past abuse — must be proved by a preponderance of the evidence, see Danaipour v. McLarey, 386 F.3d 289, 296 (1st Cir.2004) ("Danaipour II"), and that Polizzi had not shown past abuse to be more likely than not. The court concluded that Polizzi had not shown by clear and convincing evidence that return to Turkey would pose a "grave risk."
The district court did ask numerous expert witnesses whether they were able to conclude with a reasonable degree of medical certainty whether past abuse had occurred. Such questioning of expert witnesses is not uncommon, even if not required, in the context of a "grave risk" inquiry. See Danaipour II, 386 F.3d at 300 (noting that expert witness testified to a reasonable degree of medical certainty that past sexual abuse had occurred). Moreover, the district court did not purport to base its conclusion just on the absence of expert testimony rising to that level of certainty. Instead, it based this conclusion on its judgment that, having considered all available evidence, it was "more likely than not that ... Yaman did not at any time sexually abuse his children."
Polizzi argues in addition that the district court committed clear error when it found that Yaman had never abused his children. More specifically, Polizzi accuses the district court of deploying an improper "divide and conquer" strategy, considering each abuse allegation in isolation rather than evaluating the evidence as a whole. See In re Adan, 437 F.3d 381, 397 n. 7 (3d Cir.2006).
The district court deployed no such strategy. As the district court observed, a number of the allegations against Yaman involved conduct not at all out of the ordinary (e.g., sleeping with his crying daughter at night, K.Y. responding yes when asked during a diaper change if her father had touched her "pee pee"). As to Polizzi's more troubling allegations (e.g., Yaman's multiple erections while holding K.Y.), the district court specifically determined that Yaman's denials were credible and that Polizzi's accusations were not. The district court observed moreover that Polizzi was under continuous pressure from her mother to leave her "abusive" husband and to return with the children to the United States. Last, the district court noted that Polizzi engaged in conduct that, although perhaps unwittingly, intimated to K.Y. that she was being abused. Taking all of these observations together, the district court found it more likely than not that Polizzi was "acting under a well-intentioned but misguided belief that her children had been sexually abused."
Far from "divid[ing] and conquer[ing]," the district court sensitively considered all the evidence and arrived at a comprehensive explanation it deemed more plausible than the one suggested by Polizzi. The
Yaman makes three arguments on appeal. First, he argues that the district court erred in considering whether his children were "now settled," reasoning that the one-year period that triggers the availability of Article 12's "now settled" defense is subject to equitable tolling. Second, he argues that the district court erred in holding that it lacked discretion to order the return of a child "now settled." Third, he argues that the district court abused its discretion when it determined, in the alternative, that it would not order the return of the "now settled" children even if it had discretion to do so.
Yaman argues first that the one-year period that triggers the availability of Article 12's "now settled" defense is subject to equitable tolling.
The text of Article 12 does not address equitable tolling explicitly. It does, however, suggest that equitable tolling does not apply. We repeat the relevant part of Article 12:
Convention, art. 12. Under the terms of Article 12, return of a child wrongfully removed is thus mandatory unless 1) at least one year elapsed between "the date of the wrongful removal or retention" and the date on which proceedings commenced, and 2) the child is shown to be "now settled in its new environment." There is no dispute here that one year has elapsed.
From the text, we think it clear Article 12's one-year period does not operate as a statute of limitations. As the Second Circuit observed in Lozano:
697 F.3d at 52.
The courts which have viewed this language as a statute of limitations, as we discuss later, have been concerned that to do otherwise would be inconsistent with the Convention's emphasis on prompt return. We find no textual support for that view and think the concern may be dealt with otherwise. Even if a child is found "now settled," an authority retains discretion to weigh against that finding of settledness considerations such as concealment before deciding whether to order return. Article 12 thus does provide a mechanism to prevent misconduct from being rewarded without resort to equitable tolling. See id. ("[T]he way the provision functions renders this sort of equitable relief unnecessary.").
Article 12's drafting history further supports the conclusion that the one-year period is not subject to equitable tolling.
The history shows equitable tolling was explicitly discussed as a limitation on asserting the "now settled" defense, and that it was rejected. The earlier Preliminary Draft Convention, as set forth by the Official Reporter, provided for equitable tolling explicitly, but was not adopted. See Elisa Pérez-Vera, Report of the Special Commission, in 3 Conférence de la Haye de Droit International Privé, Actes et Documents de la Quatorzième Session, Enlèvement D'enfants 172, 202 (1982) ("3 Actes et Documents"). As a general rule, the Preliminary Draft Convention required return if less than six months elapsed between removal and the commencement of proceedings. Preliminary Draft Convention Adopted by the Special Commission, in 3 Actes et Documents 166, 168. That general rule was subject, however, to the following qualification:
Id.
This two-period approach in the Preliminary Draft was ultimately rejected in favor of the single-period approach contained in Article 12. The single-period approach
The Executive Branch has interpreted the Convention as we do in at least two settings. First, in the Solicitor General's brief in Lozano, the United States reasoned that "Article 12's one-year period does not function as a statute of limitations, and it is therefore not subject to equitable tolling." Br. for United States as Amicus Curiae, Lozano v. Alvarez, No. 12-820 (U.S. May 24, 2013), 2013 WL 2280948, at *8 ("U.S. Cert. Pet. Lozano Amicus Br."). The United States observed that Article 12's text and drafting history lend further support to that conclusion. Id. at *10-13. Finally, the United States noted that Article 12 already provides a mechanism for taking into account considerations such as concealment, namely the discretion it reserves to an authority to order the return of a child even if settledness is shown. Id. at *11-12.
In a 1986 Legal Analysis of the Convention for the Senate Committee on Foreign Relations, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10,494-01 (1986) ("1986 Legal Analysis"), the Department of State adopted what is an admittedly somewhat different but not inconsistent tone, remarking that "it is highly questionable" whether a parent who conceals her child "should be permitted to benefit from such conduct absent strong countervailing considerations." Id. at 10,509. That remark, however, is easy to reconcile with the current position so long as one concedes, as the United States does, that Article 12 reserves for an authority the discretion to weigh such considerations against a finding of settledness when deciding whether to order return.
More difficult to reconcile is a 2006 United States Central Authority (USCA) answer to a questionnaire circulated to signatories by the Permanent Bureau of the Hague Conference on the practical operation of the Convention. See Hague Convention on Private International Law, Collated Responses to the Questionnaire Concerning the Practical Operation of the Hague Convention of 25 October 1980 on
Id. at 568, 577.
In contrast to the Lozano amicus briefs, the 2006 USCA response contains no analysis of the Convention's text or drafting history. See Skidmore, 323 U.S. at 140, 65 S.Ct. 161 (observing that the "weight" of an Executive Branch position depends also on "the thoroughness evident in its consideration" and "the validity of its reasoning"). Moreover, the USCA's statement that it "supports the concept of equitable tolling" is more a statement of policy preference than of legal analysis. Yaman, 919 F.Supp.2d at 196; see also Official Report No. 7 at 292 (noting that the United States voted against the one-year period).
Courts of other signatory nations have most commonly held that equitable tolling does not apply to the one-year period that triggers the availability of the "now settled" defense. In Cannon v. Cannon, [2004] EWCA (Civ) 1330, [2005] 1 W.L.R. 32 (Eng.), the Court of Appeal for England and Wales rejected equitable tolling as "too crude." Id. ¶ 51. Courts in Canada, Hong Kong, and New Zealand have also held that the one-year period that triggers the availability of the "now settled" defense is not subject to equitable tolling. See Kubera v. Kubera, [2010] BCCA 118, ¶ 64 (B.C.); A.C. v. P.C., [2005] HKEC 839 (H.K.); H.J. v. Secretary for Justice, [2006] NZFLR 1005 (N.Z.).
In its carefully reasoned opinion in Lozano, as described, the Second Circuit held that Article 12's one-year period is not subject to equitable tolling. 697 F.3d at 50-55. By contrast, in Furnes v. Reeves, 362 F.3d 702, 723-24 (11th Cir. 2004), the Eleventh Circuit considered the one-year period to be a statute of limitations. In Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008), the Ninth Circuit, too, considered the one-year period as a statute of limitations. In addition, the Ninth Circuit appealed to the "overarching intention of the convention-deterring child abduction," reasoning that permitting a parent to benefit from concealment "would not only encourage child abductions, but also encourage hiding the child from the parent seeking return." Id. To this argument, there are two responses. First, as the Second Circuit observed in Lozano, Article 12 also has the apparent "purpose" of protecting a child's interest in remaining
We join the Second Circuit's views.
The evidence supports the district court's conclusion that the children are "now settled," and Yaman does not seriously contest that holding on appeal. Yaman argues that the district court erred when it concluded that it lacked authority to order the return of a child found to be "now settled." We agree. The district court reasoned that, even if the Convention reserves such discretion to a state court, a federal district court is prohibited from ordering the return of a "now settled" child. This conclusion, in our view, is not supported by the Convention's text or history, and is contrary to the view of the Executive Branch and the views of the other circuits. See Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001) (recognizing discretionary authority to return "now settled" child); see also Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir.2009) (recognizing discretionary authority to return child even if one of Convention's affirmative defenses is established); Miller v. Miller, 240 F.3d 392, 402 (4th Cir.2001) (same); Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) (same); Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995) (same).
Under Article 12, a judicial or administrative authority "shall ... order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Convention, art. 12 (emphasis added). To say that an authority "shall" order return "unless" a child is "now settled" is not to say that an authority is prohibited from ordering the child returned if settledness is found.
We understand the district court to have concluded that it lacked discretion to order the return of a "now settled" child for two reasons. Firstly, the district court reasoned that Article 12's language contrasted with the language of Articles 13 and 20. Articles 13 and 20 contain express reservations of discretion. Article 12 contains no such express reservation. Reasoning that the drafters of the Convention had "demonstrated the capacity to draft expressly to permit discretion," the court inferred from Article 12's lack of such an express reservation that no reservation of discretion was intended. Secondly, the court was concerned about the particular division of jurisdiction between state and federal authorities in the United States, unlike many foreign jurisdictions. Given the much greater role of the state courts in child custody and welfare matters, it felt this result much better fit the limits on federal jurisdiction.
As the Second Circuit concluded in Blondin, Article 12 "allows — but does not, of course, require — a judicial or administrative authority to refuse to order the repatriation of a child" just on the basis of settledness. 238 F.3d at 164. In reaching that conclusion, the Second Circuit treated the language of Article 12 as plainly permissive. Id.; see also Lozano, 697 F.3d at 52 n. 10 (noting that "[t]his interpretation of Article 12 is further bolstered by Article 18").
Article 13, by contrast, states that notwithstanding the return provisions of Article 12 mandating return in certain circumstances, the court "is not bound to order the return of [a] child" if an Article 13 defense is established or if the court finds that "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Convention, art. 13.
It is consistent with the Convention's overall structure that Article 12 leaves it within a court's discretion whether to order the return of a "now settled" child. As the Second Circuit explained in Lozano, "the default presumption under the Convention is that a child shall be returned to the state from which she originally was wrongfully removed." 697 F.3d at 51 (emphasis in original). The Convention then goes on to specify various circumstances in which it is within a court's discretion to refuse to order return. Under Article 13, for example, a court "is not bound to order the return of the child" if there is a "grave risk" that return would expose the child to harm. Convention, art. 13 (emphasis added). Similarly, under that same Article, a court "may also refuse to order the return of the child" if the child objects and is of a sufficient degree of maturity. Id. (emphasis added). And likewise, under Article 20, return "may be refused" if return would conflict with the protection of human rights and fundamental freedoms. Id. art. 20 (emphasis added). In each instance, it is within a court's discretion to refuse to order return if particular circumstances are shown. At no point, however, is a court bound to so refuse.
In interpreting Article 12 within the context of the grant of authority to federal courts in ICARA, we presume that Congress was aware of federal courts' broad equitable powers and, in the absence of any a clear statement to the contrary, that Congress intended those powers to be available in Hague Convention cases. See Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 416 (1st Cir.1985) (establishing a default presumption that Congress is aware of federal courts' "inherent equity powers" and does not intend to limit those powers). To be sure, prior to enactment of the implementing statute, federal courts had no such authority under the Convention as to order international return of abducted children. But when Congress assigned federal courts responsibility for resolving abduction cases, we assume that Congress intended them to bring their full toolkit to the assignment. There is no language in the implementing statute suggesting otherwise. Indeed, Congress exhibited an intention not to limit available remedies by making clear that
Read against this backdrop of federal courts' broad equitable powers and the other articles of the Convention, Article 12 in its own terms confers upon a federal district court the authority to order the return of a "now settled" child. We add that the language of Article 18 of the Convention reinforces our reading. According to Article 18, "[t]he provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time." Convention, art. 18 (emphasis added).
The district court reasoned that, unlike a state court, a federal court does not enjoy the "power" to which Article 18 refers. The district court's distinction is not based in the Convention's text, which throughout refers genetically to "authorit[ies]." It also has no basis in the text of ICARA, which states that "[t]he courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention." 42 U.S.C. § 11603(a). The district court relied primarily on the drafting history of Article 18.
We have considered whether principles of federalism or comparative competence would have led Congress to make state law the sole avenue for the return of settled children. Under the district court's view of the matter, a parent seeking the return of a settled child must go to state court (or convince a federal court to exercise pendent jurisdiction) in order to enforce a return based on a foreign custody determination. This would be consistent with the "the virtually exclusive primacy ... of the States in the regulation of domestic relations." United States v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 2691, 186 L.Ed.2d 808 (2013) (alteration in original) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 714, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) (Blackmun, J., concurring in the judgment)). As the Supreme Court has recognized, "the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations." Id.
Nevertheless, we are doubtful that Congress intended for this traditional separation of authority to apply in cases of international child abduction, which are matters not just of family law but also of international relations. To the contrary, Congress decided to bring federal courts into the arena by granting them concurrent jurisdiction over Hague Convention actions. 42 U.S.C. § 11603(a). In addition, 42 U.S.C. § 11604 authorizes federal courts to order "provisional remedies" in Hague Convention cases. And the implementing statute goes further, authorizing the federal government to issue regulations to carry out the Convention and requiring the State Department to coordinate on child abduction cases. 42 U.S.C. §§ 11606(c), 11608a. This is not surprising because the federal government is the usual venue for decisions bearing on foreign relations. Cf. Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 49 (1st Cir.1999), aff'd sub nom. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) ("The Constitution's foreign affairs provisions have been long understood to stand for the principle that power over foreign affairs is vested exclusively in the federal government.").
A federal court has the more limited authority to order the return of a child who was "wrongfully removed or retained" despite her being "now settled."
The Executive Branch has consistently interpreted Article 12 as conferring upon an authority the discretion to order the return of a child found "now settled." In the Solicitor General's brief in Lozano, the United States asserts, "a district court has equitable discretion to order a child returned even if she has become settled in her new environment." U.S. Cert. Pet. Lozano Amicus Br. at *6. Identifying the source of that authority, the United States explains, "the Convention expressly provides a mechanism other than equitable tolling to avoid rewarding a parent's misconduct — discretion to order the return of a child, even when a defense is satisfied." Id. at *11 (internal quotation marks and alteration omitted) (emphasis added). More specifically, "a court retains equitable discretion under Article 12 to order that a child who is now settled in the United States should nonetheless be returned...." Id. at *7 (emphasis added).
In these arguments to the Supreme Court, the United States articulates the same position it did as amicus before the Second Circuit in Lozano, where it concluded that "[a] court retains equitable discretion to order a child's return at any time[,] ... even if the child is `now settled.'" Mem. Br. for United States as Amicus Curiae at 2, Lozano, 697 F.3d 41 (2d Cir.2012); see also id. at 7 ("Article 12 contemplates that a finding of settlement could be outweighed by other equitable factors...."). Explaining the nature of a court's residual discretion under Article 12, the United States explained, "[b]y using the phrase `equitable discretion,' we mean to invoke broadly a court's inherent equitable authority." Id. at 2 n. 2 (emphasis added).
This interpretation is consistent with the view expressed by the State Department in its 1986 analysis of the Convention, where it remarked:
In the Solicitor General's brief, the United States characterized Article 18 as "underscor[ing]" the "authority" conferred upon a court by Article 12 to order the return of a child "now settled." "U.S. Cert. Pet. Lozano Amicus Br. at *12. In 1986, the State Department remarked tentatively that "Article 18 provides that the Convention does not limit the power of a judicial authority to order return of a child at any time, presumably under other laws, procedures or comity, irrespective of the child's age." See 1986 Legal Analysis, 51 Fed.Reg. at 10,504 (emphasis added). That is, however, not the present understanding of the Executive Branch.
It is clear that the Executive Branch has consistently interpreted Article 12 as conferring upon a court the authority to order, at its discretion, the return of a wrongfully removed child who is "now settled."
Abbott, 130 S.Ct. at 1993. For these reasons, we afford "great weight" to the Executive Branch's position. Id. (quoting Sumitomo Shoji Am., Inc., 457 U.S. at 185, 102 S.Ct. 2374) (internal quotation marks omitted).
Courts of other signatory nations have held that the Convention confers upon a court the authority to weigh considerations such as concealment when determining whether to order the return of a child "now settled." In Cannon, the Court of Appeals for England and Wales remarked that "even if settlement is established," the court could still "order a return under the Convention." [2004] EWCA (Civ) 1330 (Eng.) ¶ 62. Similarly, in In re M, [2007] UKHL 55, [2008] 1 A.C. 1288 (appeal taken from Eng.), the British House of Lords reached the conclusion that "article 12 does envisage that a settled child might nevertheless be returned within the Convention procedures." Id. ¶ 31. The Supreme Court of Ireland has arrived at a similar conclusion. See P. v. B., [1999] 4 IR 185; [1999] 2 ILRM 401(Ir.) (inferring existence of discretion to order return of "now settled" child from Article 18).
Other circuits agree that the Convention confers upon a federal district court the authority to order return even if a parent establishes a "now settled" defense. While no other circuit has addressed the "now settled" defense in particular, numerous circuits accept the general proposition that "courts retain the discretion to order return even if one of the [Convention's] exceptions is proven." Feder, 63 F.3d at 226; Miller, 240 F.3d at 402 (quoting Feder); accord Friedrich, 78 F.3d at 1067 ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention."); Asvesta, 580 F.3d at 1004 (quoting Friedrich).
We hold that the district court erred in finding it had no authority to order the return of a child found to be "now settled."
In a fallback and serious argument, Yaman says that even if the court retained authority to order return, the court's alternative ruling is unsustainable, and the matter must be remanded. Yaman argues that the court took its conclusion that children were "now settled" as the beginning and the end of its discretionary analysis of the return issue. Yaman argues the court in essence adopted a presumption that disfavored return if the children were "now settled."
There is very little law providing guidance as to how a district court is to weight the different factors as to return at this stage. The position of the United States is that this is a matter of equitable discretion:
U.S. Cert. Pet. Lozano Amicus Br. at *11-12 (alteration in original) (emphasis omitted) (citations omitted). The position of the United States refers to the equitable balancing of interests served by the Convention as opposed to an independent inquiry into the best interests of the child. Accord Cannon, [2004] EWCA (Civ.) 1330 (Eng.) ¶ 38 ("[T]he exercise of a discretion under the Convention requires the court to have due regard to the overriding objections of the Convention whilst acknowledging the importance of the child's welfare...."). "The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence." Abbott, 130 S.Ct. at 1995. The Convention also has as its "purpose ... deterring child abductions," thereby "prevent[ing] harms resulting" therefrom. Id. at 1996. At the same time, Article 12 has as an additional "purpose": the protection of a child's "interest in remaining in a country in which she has lived for a substantial amount of time." Lozano, 697 F.3d at 54.
We believe Yaman has not fairly read the court's decision in wrestling with this difficult case. While a fuller explanation might have been helpful, it is well settled that the absence of a more detailed explanation does not amount to an abuse of discretion. See United States v. Currier, 821 F.2d 52, 54 n. 3 (1st Cir.1987) (observing that a district court's "failure to elaborate on the reason" for reaching a particular determination need not imply that the court abused its discretion by "ignoring the proper factors" under the applicable balancing test (quoting Dente v. Riddell, Inc., 664 F.2d 1, 4 (1st Cir.1981))). This is especially so where, as here, it is clear that the district looked at a great number of factors and gave meticulous attention to the concerns raised by the case. See United States v. De La Cruz, 902 F.2d 121, 123 n. 1 (1st Cir.1990) (determining that "[d]espite the lack of express findings, ... the record reflects the district court's awareness of its responsibility to weigh the relevant factors and perform [the applicable] balancing test"). Yaman asks this court to remand to the district court with instructions to take into account a variety of interests (e.g., the interest in affording the parent a remedy for the abduction, the interest in deterring child abductions, etc.).
We stress that this case does not involve a determination of custody. Nothing in the case challenges the Turkish Court's award of custody to Yaman.
We affirm the decision of the district court not to order return.
No costs are awarded.
So ordered.
The district court's understanding of its discretion, however, is not so restrictive as Yaman suggests. In the sentences that immediately precede the above quoted passage, the district court articulated its characterization of its position:
Further, the district court observed that to the extent to which this case was out of the ordinary, it was so in a way that disfavored return. The district court noted that, at the children's current ages, settlement was particularly important.
