On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-001009-11.
The opinion of the court was delivered by: A. A. Rodriguez, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez, Sabatino and Fasciale.
The opinion of the court was delivered by A. A. RODRIGUEZ, P.J.A.D.
We affirm the April 29, 2011 Family Part order directing A.C.U. (Father), to turn over his nine-year-old daughter, M.U., to her mother, F.H.U. (Mother). This will allow the return of M.U. to her former home in Turkey. We hold that when petitioning for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction*fn2 (Hague Convention or Convention), although the Convention requires an analysis of a wrongfully removed child's "well-settled" status in his or her new country when the petition is filed more than one year after the removal, this required analysis is not a jurisdictional limitation. Therefore, based on the merits and other criteria set by the Hague Convention, a court may order the return of such child to the home country despite a finding that he or she is well-settled here.
It is undisputed that in June 2008, Father took his then-five-year-old daughter, who was born in the United States,*fn3 from their home in Turkey for a trip here. He contends this was done with the permission of his wife, who is the child's mother.
Mother argues that she only consented to a family trip to Italy, and that under the guise of acquiring documents to that end, Father spirited M.U. to the United States. Fearing she would never see her daughter again, Mother obtained a temporary decree of custody from a Turkish court. She then filed a petition seeking the return of her child from the United States to Turkey, pursuant to Article 12 of the Hague Convention, and the International Child Abduction Remedies Act (ICARA), 42 U.S.C.A. § 11601 to -11. Article 12 of this treaty requires the return of a child found to be wrongfully removed from his or her habitual residence unless the petitioned-for action is commenced in the reviewing country more than one year from the date of wrongful removal. After that point, prior to ordering a return, the court or reviewing authority must consider whether the child is well-settled in the new country.
Mother obtained a temporary custody order in Turkey on October 24, 2008. After the Hague Convention petition was transmitted from Turkey to the United States, bureaucratic delays*fn4 - including finding pro bono counsel - and travel costs impeded commencement of an action in New Jersey until December 2010. After a testimonial hearing, the trial court issued a decision finding that Father wrongfully removed the child and that none of the defenses available to Father pursuant to the Convention applied. The trial court ordered the child returned to Turkey. Although the action was commenced in New Jersey more than one year after the wrongful removal, the trial court held the provision of the Convention looking at whether the child is well-settled in the new country after one year was subject to equitable tolling due to delays in handling the petition. On temporary remand from this court, the trial court issued a supplemental ruling finding M.U. to be well-settled, but reiterated its prior return order.
Father now appeals the trial court's tolling of the Convention's one-year filing term and its findings that none of its available defenses apply. For the reasons that follow, we affirm the order returning M.U. to Turkey, but hold that the trial court erred in part of its analysis by equitably tolling Article 12 under these facts.
LITIGATION IN THE UNITED STATES
At a hearing commencing on February 3, 2011, the trial court heard testimony on the issues of jurisdiction and the circumstances of M.U.'s removal from Turkey that had occurred over two-and-one-half-years earlier. Mother testified that she resides in Istanbul, Turkey, with her parents. She remains married to Father. They were married on December 6, 1997, and lived together until June 20, 2008, when he left Turkey with M.U.
The couple met in March of 1996, after Father had returned from completing his Master's degree from the University of Miami. She had not been to the United States before 2002, when she came to New Jersey for M.U.'s birth, with a tourist visa. She arrived six-months pregnant, and left three weeks after M.U.'s birth. They traveled here in 2002 because Father wanted M.U. to have United States citizenship.
Weeks after M.U.'s birth, the family returned to Turkey and lived there until June 2008. M.U. speaks Turkish. She had a relationship with family and friends, and was enrolled in preschool. However, Father would not let Mother take M.U. to visit her family except for holidays.
According to Mother, their families were a significant source of conflict in their marriage. Mother once left the marital home with M.U. and stayed with her parents for a week. She informed Father where she was, and soon returned so M.U. could be with her Father.
In December 2007, Mother again left the home, but did not take M.U. with her. She left because Father continuously told her to leave, and his mother moved into the marital home. During this time, Mother saw M.U. every few days at a neighbor's house, but was prohibited by Father from reentering the marital home for a month. In February 2008, Father's mother refused to allow Mother into the marital home after M.U. had opened the door for her. Subsequently, Mother went to court to gain access to M.U. on weekends.
The Turkish court issued an interim decision granting Mother weekend custody until the formal custody case began. That Thursday, Mother informed Father of the interim decision. Father left the next day with M.U. and three suitcases. When Mother went on Saturday to pick up M.U., her mother-in-law laughed and informed Mother that Father and M.U. were on a vacation in Turkey. Father never called to inform Mother where they were, and Mother filed a police report. A month later, Mother attended the custody hearing, and discovered that although Father was not present, he had filed for divorce. The trial court told Father's attorney that Father had ten days to appear in court or he would award custody to Mother. Father appeared three days later and told Mother he wanted to reconcile. The presence of an elderly member of Father's family persuaded Mother to dismiss the custody case if Father dismissed the divorce case. Mother also consented to removal of court- ordered travel restrictions preventing Father from taking M.U. to the United States without Mother's permission. Mother returned to the marital home and the parties had a reportedly pleasant two months together.
After the custody/divorce actions in Turkey were withdrawn, Father told Mother he was going to take her and M.U. to Milan, Italy, to visit mutual friends. On the morning of June 20, 2008, Father told Mother that the Italian Embassy needed work documents from him to get a travel visa. He invited M.U., then five years old, to come with him to the Embassy. M.U. accepted. Father told Mother that they would be back in a few hours. There were no packed suitcases, although Father took his laptop with him. Father and child left the house.
Around 3:00 p.m., Mother began calling Father's cell phone. It was turned off. She tried again each hour, and began to suspect that Father had abducted M.U. At 2:00 a.m., she called her brother. He called Father's father, who laughed and said that Father and M.U. had flown to Vienna for a soccer game. In the morning Mother contacted police. Three days later, Father called Mother and told her he was in the United States with M.U. and intended to bring Mother here so she could care for M.U.
Within a month, Mother simultaneously began the petition process pursuant to the Hague Convention and began a custody case in Turkish court. On October 24, 2008, Mother received an interim order from the Fourth Family Court in Kadikoy, granting her custody of M.U.
During the two-and-a-half-years that M.U. was in the United States prior to the hearing, Mother was in contact with M.U. via telephone and internet. From June 2008 to February 2009, they would call Mother. Later, Mother would call every week or few days. Mother feared that M.U. was being "poisoned against" her by the paternal grandmother. M.U. never spoke with Mother's parents or family by phone or through internet chat, "[b]ecause my family was introduced to her [as] disgusting and dirty," though Mother acknowledged that M.U. did not want to talk to them. Mother could not come to the United States before the hearing because she could not get a visa as she was married and Father was a resident alien.
Mother recalled Father traveling to the United States several times between 2005 and 2008 for what he told her was company business. She now believed that the frequent visits were to maintain his "green card," which signifies permanent resident status, for six-month periods.
C.B., Mother's brother, testified that he received a June 20, 2008 telephone call from a shocked Mother reporting that Father had not returned with M.U. He called Father's father and informed him of the circumstances. After looking into the matter, he discovered that Father and M.U. had flown to the United States.
Father testified that he holds Turkish and Cypriot citizenship and is currently a legal permanent resident of the United States. He had not yet applied for United States citizenship, but intended to do so soon. M.U. holds United States, Turkish, and Cypriot citizenship. At the time M.U. was born, Father and Mother were looking for job opportunities and to settle here. He looked for a job with a company that could sponsor him for an H-1 visa, but was unsuccessful. They returned to Turkey three weeks after M.U.'s birth.
Father testified that he and Mother had met when they were younger, as their families were close. He had come to the United States after graduating as valedictorian from the Middle East Technical University and receiving a scholarship to study at the University of Miami. In March 1995, while Father was still at Miami, the couple's courtship began through pre-engagement telephone conversations. Therein, the couple routinely discussed his desire to settle in the United States with her once they were married. She did not object at that time to moving here. These conversations continued through August 1996, when Father returned to Turkey "to make the engagement."
Father had a tourist visa for ten years before getting a green card in 2005. According to Father, his wife knew of the plan to first take M.U. to the United States and then bring Mother over. He further testified that Mother did not object, but believed her family did not want to be separated from her.
Father arrived in the United States with M.U. on June 22, 2008. After leaving Turkey on June 20, they stopped in London, England, and stayed with a cousin for two days to ease the strain of traveling with a child. He called Mother as soon as he landed in London to let her know they had landed safely. Mother was aware of the travel plans. When they arrived in New Jersey on June 22, he again called Mother to let her know they landed safely. Other than Mother, his family also knew about the travel plans, though hers did not.
While looking for work, he and M.U. resided in Clifton, after a short time in Hamilton. The economic crisis prevented him from finding work. At the time of the hearing, he was employed as a limousine driver and dispatcher, but had recently started a company with some friends in Roselle Park. He and M.U. share a second-floor, two bedroom/two bathroom apartment in Clifton. M.U. has her own room, toys and clothes. She has medical insurance, visits the doctor, is healthy and is up to date on vaccinations.
M.U. first attended daycare before entering a charter school in first grade, where she has excelled. The school's principal reported that M.U. typically arrived on time to school and, although quiet, is a good student, well-kempt, healthy and happy, and well-adjusted. Father acknowledged that M.U. had attended pre-school in Turkey and noted that while here she attends a weekend Turkish school where she also studies the Koran.
Father testified that since being in the United States, M.U. has been in regular contact with Mother through the telephone and internet. These communications may be a couple of times per week, and as much as either one wishes. However, he agreed that M.U.'s conversations with Mother through video chatting were not the same as in-person time.
Father stated that M.U. would face a grave risk of psychological harm if returned to Turkey. This would result from her separation from Father and because Mother's family would not allow M.U. to return. Moreover, "she would be forcibly taken from her environment here. From her friends, from her school, from me. And she wants to live in the United States. She explicitly says that she wants to live in the United States. She doesn't want to go back to Turkey. And she's settled here." Also, he wants M.U. to receive a better education than that she would get in Turkey.
If M.U. were sent back, Father would stay here, owing to the life he has built. He had not returned to Turkey with M.U. because he feared that the temporary custody determination in Mother's favor would prevent him from again leaving with M.U., and they would be tied up in court there for years. Additionally, Father believed he would have a problem returning to Turkey because Mother's brother has threatened him, including when he came to the United States with Mother for the hearing. Father would remain here, where he knows Mother's brother could not get to him. The brother, C.B., works as a legal correspondent for a newspaper, and Father fears that C.B. will use his familiarity with prosecutors and police to have him jailed, though he admitted that had not happened before. Father acknowledged telling M.U. that if she returned to Turkey with Mother, she would not see him again until she was older.
On April 29, 2011, the trial court issued a decision and order. The trial court found M.U. to be a habitual resident of Turkey, wrongfully removed by Father. Temporary custody of M.U. was granted to Mother to take her back to Turkey for a determination of permanent custody. The trial court did not deem it necessary to examine the issue of whether M.U. was "well-settled" in the United States, as that relates to Article 12 of the Hague Convention, because M.U.'s removal was wrongful and Mother, in the trial court's estimation, had done all she could to bring the action within one year.
This [c]court agrees with [Mother] that the one-year provision of the Hague Convention may be equitably tolled. See Lops v. Lops, 140 F.3d 927[,] 946 (11th Cir. 1998). The facts of the case at bar support such a tolling. But for the bureaucratic handling of the petition, difficulty in the U.S. Department of State finding pro bono counsel in the United States and the difficulty in [Mother] obtaining a U.S. visa and lack of finances to travel to the U.S., the application would have been filed in this court within the one year. [Mother] did everything she could to ensure it was. Even assuming this [c]court made a finding M.U. was "well settled" its opinion would coincide with the decision in Belay v. Getachew, 272 F. Supp. 2d 553 ([D. Md.] 2003). In Belay, the court found that even though the petition had been filed more th[a]n one year after the abduction and the child was well settled in the new environment, the one year period should be equitably tolled. The court recognized it would be uprooting the well settled child to return to the habitual residence but that there was a legitimate concern that allowing [r]espondent's behavior to go unchecked would provide incentive to parents to take the law into their own hands, crossing international borders in reach of more sympathetic custody courts. The Hague Convention implemented by ICARA expressly seeks to prevent such action.
The trial court granted a temporary stay until 12:00 p.m. on May 2, 2011, for Father to obtain a plenary stay ...