Tatari v. Dürüst: Approval-to-Relocate Clauses in Foreign Divorce Decrees Are “Custody Rights” Under the Hague Convention

Introduction

The Second Circuit’s summary order in Tatari v. Dürüst, No. 25-253-cv (Mar. 28, 2025), affirms a district court ruling compelling the return of a Turkish child to Türkiye under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). Although issued as a non-precedential “summary order,” the decision is important because it squarely addresses whether a contractual clause in a Turkish divorce protocol—requiring the mother to secure the father’s “approval and opinion” before relocating the child abroad—confers a custody right protected by the Hague Convention. By answering “yes,” the court reinforces a functional, substantive approach to custody rights and signals that relocation-approval provisions in foreign decrees can be independently enforceable in U.S. courts, even when the relocating parent is the sole legal custodian.

The case pits Petitioner-Appellee Zühtü Onur Tatari against his former spouse Respondent-Appellant Neva Dürüst over the international relocation of their minor son, “O.T.”. After the parties’ 2022 Turkish divorce, Dürüst—who held formal custody—moved with the child to New York in August 2024 without first notifying Tatari. Tatari petitioned under the Hague Convention; the district court ordered return; and Dürüst appealed, disputing only whether her relocation breached Tatari’s “custody rights” under Turkish law.

Summary of the Judgment

The Second Circuit affirmed the Eastern District of New York’s judgment, holding that:

• Section 3.7 of the parties’ Divorce Protocol, incorporated into the Turkish Divorce Decree, grants Tatari an enforceable right to determine the child’s country of residence;
• That right qualifies as a “right of custody” under Article 3 of the Hague Convention, even though formal custody resides with the mother;
• By unilaterally moving the child to the United States without Tatari’s consent, Dürüst breached that right, rendering the removal “wrongful” and triggering mandatory return;
• Because Dürüst’s arguments rested on a plausible—but incorrect—reading of Turkish law, an award of costs against her would be “clearly inappropriate.”

Analysis

a. Precedents Cited

Although issued as a summary order, the court anchored its reasoning in a well-developed Second Circuit Hague Convention jurisprudence:

• Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) – establishes the three-part framework (habitual residence, breach of custodial rights, exercise of those rights) for Hague petitions.
• Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) – outlines standards of review: factual findings for clear error; legal conclusions de novo.
• Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013) – recognizes that a parent with non-exclusive custody can still possess veto-grade “custody rights” (e.g., travel consent); also guides costs analysis.
• Petroleos De Venezuela S.A. v. MUFG Union Bank, N.A., 106 F.4th 263 (2d Cir. 2024) & Curley v. AMR Corp., 153 F.3d 5 (2d Cir. 1998) – reaffirm appellate courts’ authority to determine foreign law independently under Fed. R. Civ. P. 44.1.

Collectively, these cases provided the doctrinal scaffolding: functional definition of “rights of custody,” appellate freedom to interpret Turkish law, and equitable limits on cost shifting.

b. Legal Reasoning

1. Determining the Content of Foreign Law
   The court embraced Fed. R. Civ. P. 44.1’s flexible approach, relying on competing expert affidavits and its own textual analysis to decide that “approval and opinion” denotes a binding veto, not a mere consultation requirement. The court explicitly adopted Tatari’s translation of Section 3.7 after finding it “more faithful to the Turkish.”
2. Functional Approach to “Custody Rights”
   Under Article 3 of the Hague Convention, “rights of custody” include not only day-to-day care but also authority to determine the child’s place of residence. Echoing Ozaltin, the Second Circuit held that because Tatari possessed a contractual right to forbid international relocation, he held a protected custody right despite lacking primary legal custody.
3. Policy of Prompt Return
   The court emphasized the Convention’s central goal: disputes about underlying custody should be litigated in the child’s habitual-residence forum (here, Türkiye). Faced with a “close case,” the court chose an interpretation that favored return, allowing Turkish courts to settle lingering uncertainties.
4. Equitable Handling of Costs
   Recognizing that Dürüst likely made an “honest mistake of law,” and mindful of Ozaltin’s guidance, the court left each party to bear its own fees and costs.

c. Impact on Future Cases

• Substantive Enforcement of Relocation Clauses – Parents drafting or litigating foreign divorce agreements should expect U.S. courts in the Second Circuit to treat relocation-approval clauses as enforceable custody rights, triggering Hague remedies.
• Expert Testimony on Foreign Law – The decision underscores the decisive weight courts may give to credible linguistic and legal experts; mere disagreement over translation will not defeat a Hague petition unless the alternate translation is compelling.
• Strategic Litigation Choices – A relocating parent who ignores a veto clause does so at considerable risk; conversely, an objecting parent may proceed directly under the Hague Convention without first seeking modification or enforcement in the foreign court.
• Cost Awards – Even when the respondent loses, honest mistakes of foreign law can protect against fee-shifting, signaling a balanced, equitable approach.
• Precedential Weight – While tagged “non-precedential,” the order will likely carry persuasive value and may influence district courts within (and beyond) the circuit, especially given the paucity of authority on Turkish family law in U.S. Hague litigation.

Complex Concepts Simplified

• Hague Convention Return Mechanism – A treaty obligating signatory states to promptly return children wrongfully removed or retained across international borders. It does not decide custody; it decides where custody will be decided.
• Rights of Custody vs. Rights of Access – “Custody” includes decision-making power over the child’s residence; “access” means visitation. The Hague Convention mandates return for breaches of custody but offers more limited relief for access violations.
• Rule 44.1 Determinations – Federal judges can inform themselves of foreign law in any manner, including expert affidavits, academic commentary, or independent research; the resulting conclusion is treated as a question of law, not fact.
• Article 15 (Hague Convention) – Allows a court in the requested state (here, the U.S.) to seek a ruling on foreign law from the state of habitual residence. The Second Circuit affirmed the district court’s choice not to delay proceedings for an Article 15 reference.

Conclusion

adds another piece to the Second Circuit’s growing Hague Convention mosaic. By classifying a father’s contractual right to approve foreign relocation as a protected “right of custody,” the court further entrenches a functional, substance-over-form methodology. The ruling admonishes relocating parents to honor consent clauses and reassures non-custodial parents that such clauses are more than paper promises. At the same time, the court leverages equitable discretion to avoid punishing parents who misinterpret nuanced foreign decrees. While technically non-precedential, the decision is poised to influence future cross-border custody disputes, especially those involving complex foreign-law instruments and mixed custody arrangements.