Yaman v. Yaman

United States Court of Appeals
For the First Circuit

Nos. 13-1240, 13-1285

ISMAIL OZGUR YAMAN,

Petitioner-Appellant/Cross-Appellee,

v.

LINDA MARGHERITA YAMAN, a/k/a LINDA MARGHERITA POLIZZI,

Respondent-Appellee/Cross-Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.

Douglas E. Brayley and Daniel V. Ward, with whom Christopher
G. Green, Donna A. Mizrahi, Allison Boscarine, and Ropes & Gray LLP
were on brief, for petitioner.
Susan Kim, with whom Donald J. Marchesseault, Janice Howe,
Beth I.Z. Boland, Stephen Jacob Quinlan, Caleb Schillinger, and
Bingham McCutchen LLP were on brief, for respondent.

September 11, 2013
 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"),1 wrongfully removed the children in

2007 and then hid them, and that this prevented Yaman from locating

them and filing his petition for return until he recently found

them.

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

1
For the purpose of keeping the two parties clear, we refer
to the mother as "Polizzi." Yaman has remarried, and his second
wife is "Ms. Yaman."

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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.

In a carefully reasoned analysis, the district judge

concluded that neither equitable tolling nor equitable estoppel

applied to bar the mother from asserting the "now settled" defense

and concluded the children were "now settled." It held that it had

no authority under Article 12, then, to order the return of the

children under the Convention. In an alternate holding, it

concluded that if it did have authority nonetheless to order

return, it would not order return, based on the facts.

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

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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:

(1) Whether equitable tolling applies to
the one-year period that triggers the
availability of the "now settled"
defense under Article 12.

(2) Whether, as a matter of law, the
conclusion that the child is "now
settled" under Article 12 precludes a
court from ordering return.

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, 133 S. Ct. 2851 (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, 133 S. Ct. 2851 (2013).

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 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.

I.

A. Factual Background

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 at the Middle East Technical University in Turkey. The

family moved to Turkey. Both Polizzi and the child obtained dual

United States/Turkish citizenship. The couple's second child,

E.Y., was born in Turkey on August 11, 2003, and is also a citizen

of the United States and Turkey.

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.

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 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.2 Polizzi continued to

2
At that point, Polizzi attempted to procure passports for
the two children at the United States Consulate. The Consulate
informed Polizzi that it was aware of the Turkish Family Court's
order awarding sole custody of the two children to Yaman, and,
accordingly, refused to waive the requirement that both parents

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travel with the two children through several European countries

before arriving in Andorra. As Polizzi was aware, Andorra was and

is not a signatory to the Convention. Polizzi remained in Andorra

with the two children from October 2007 to April 2010. At no point

did the mother inform the father of her or the children's

whereabouts.

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.

consent to the issuance of passports to minors.

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In January 2009, the State Department's Office of Children's Issues

deactivated Yaman's application, believing that the children were

in Europe, not the United States. In April 2010, the State

Department sent Yaman a letter informing him that the children had

been issued passports for direct return to the United States.

Yaman forwarded that letter to the Central Authority of Turkey. On

May 12, 2010, the Central Authority requested that the Office of

Children's Issues reactivate Yaman's application. After various

attempts, the State Department finally located the mother and

children in New Hampshire on December 19, 2011. The State

Department cautioned Yaman against filing a petition with a New

Hampshire court before Polizzi's specific address could be

confirmed, fearing that Polizzi might flee. As of June 5, 2012,

Polizzi's New Hampshire address was still unconfirmed. Yaman

decided to move forward with the Hague petition for return despite

the lack of confirmation.

B. Proceedings Before the District Court

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

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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

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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

massaging K.Y.'s clitoris while changing her diaper. Three months

later, Polizzi's grandmother shared this with Polizzi's mother, who

then relayed the incident to Polizzi. Polizzi's mother insisted

that Polizzi leave Turkey and return with the children to the

United States. At that point, Polizzi began to observe what she

regarded as suspicious behavior by Yaman. She remarked that Yaman

would sleep in a separate room with K.Y. when K.Y. would wake

crying in the night. She claimed to have observed Yaman on

numerous occasions with an erection when holding K.Y. She alleged

that she asked K.Y. during a diaper change whether Yaman had

"touched her pee-pee," to which K.Y. said yes. And she asserted

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that K.Y. once said she did not want to go to her father because he

had made a "raspberry" on her, i.e. made a red mark by blowing,

gesturing at her genital area. Polizzi testified she had K.Y.

evaluated by three different mental health experts in Turkey, one

in Greece, and a pediatrician in the United States.

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.3 The respondent's psychiatric expert testified

that the children were settled "in the way that one would use the

word in a common sense." He also said he could not form an opinion

that the children were or were not sexually abused. Similarly, the

respondent's pediatric expert expressed a "concern" the children

had been abused, but was unable to conclude with a reasonable

3
As the district court noted, with one exception, discussed
below, none of the expert reports concluded that abuse was more
likely than not.

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degree of medical certainty that they had. And likewise the

petitioner's expert formed an opinion that he could not conclude to

a reasonable degree of medical certainty that K.Y. was abused. He

was also unable to conclude that K.Y. had not been sexually abused.

The father also testified consistently with all of the

assertions in his petition. He denied any sexual abuse4 and

described the Turkish court's orders and his search for his missing

daughters, including use of the Turkish and United States Central

Authorities. Yaman's present wife, the mother of his son, also

testified. Yaman put on no evidence as to the children's ability

to resettle in Turkey.

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

court also found that Polizzi had concealed the children after

removal, and that Yaman had been diligent in his efforts to assert

4
Yaman admitted to once having an erection when holding K.Y.,
and to Polizzi's confronting him on that occasion. Yaman
attributed that incident to normal male physiology. He also
admitted to making "raspberries" on K.Y.'s arms, back, etc., but
insisted that he had never made a "raspberry" on her genital area.

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his rights under the Convention.5 The district court nevertheless

denied the petition for return.

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.6 Moreover, the district court

found, there was substantial reason to doubt the accuracy of the

grandmother's report.7 As to the other incidents alleged, the

5
On cross-appeal, Polizzi challenges both of these findings,
claiming (1) that she and the children lived openly in Andorra
from October 2007 through April 2010 and in New Hampshire since May
2010; and (2) that Yaman could have made additional efforts to
discover her and the children's location. This court reviews the
district court's findings of fact for clear error. Whallon v.
Lynn, 230 F.3d 450, 454 (1st Cir. 2000). Here, the evidence in the
record provides overwhelming support for both findings. Polizzi
engaged in substantial efforts to conceal her and the children's
location, including refusing to respond to emails, refusing to
disclose their location to the State Department, and, ultimately,
moving to New Hampshire where the family had no prior ties. At the
same time, Yaman was in continuous contact with Central Authorities
in both Turkey and the United States. Yaman also sought assistance
from Interpol and the Turkish police. As such, we agree with the
district court that it is "ludicrous" for Polizzi to suggest either
that she did not conceal the children or that Yaman slept on his
rights under the Convention.
6
The district court considered testimony from Polizzi about
the incident for the limited purpose of explaining her actions
going forward. Polizzi's grandmother was unable to testify as a
result of her age (then 91).
7
As the district court noted, Polizzi's grandmother's spouse
had abused his children.

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district court found that most admitted of benign explanations.

For instance, a father sleeping with a crying child was not unusual

behavior.8 The district court found more disconcerting Polizzi's

accusations concerning Yaman having multiple erections when holding

his daughter. But, on that issue, the district court reasoned that

the one incident conceded by Yaman could be explained without

appeal to sexual arousal (e.g., morning erection), while Polizzi's

further accusations were not credible.

As to the expert reports and testimony, the district

court observed that, with one "[un]persuasive" exception,9 none of

the at least sixteen experts who evaluated the children or the

record was able to conclude that past abuse was more likely than

not. This included the various Turkish experts who evaluated the

children closer in time to the alleged incidents. While numerous

8
The district court noted that Yaman had only been accused of
sleeping with K.Y. when prompted by her crying in the middle of the
night.
9
The therapist who examined K.Y. in Greece in September 2007
was the lone expert willing to conclude that abuse had occurred.
The district court found the therapist's testimony
"[un]persuasive." The therapist's finding of abuse was based upon
remarks by K.Y. concerning an alleged incident, previously
unreported, in 2007, a time at which Yaman only had contact with
the children during supervised visits. Polizzi's only evidence of
abuse at trial pertained to incidents alleged to have occurred in
2004. Moreover, the therapist's examination took place in a
situation where Polizzi needed, and was aware that she needed, the
examiner to find past abuse in order for Polizzi to secure
passports for return to the United States. Last, the examination
took place after months of potential suggestion (e.g., Polizzi's
mother accused Yaman of abuse in front of K.Y.). On this basis,
the district court found the therapist's testimony not credible.

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experts had expressed "concern," the district court noted that

there is always "concern" when a parent is accused of sexual abuse.

The district court concluded that, in its best judgment, Polizzi's

actions were ones of a "concerned but misguided mother." The

district court noted that Polizzi was acting "under tremendous

pressure" from her mother.10

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

10
The district court also rejected Polizzi's argument that
Yaman's father posed a "grave risk." The district court found that
Polizzi had failed to show that past abuse by Yaman's father was
more likely than not. Polizzi did not challenge that finding in
her opening brief. Any argument that the district court committed
clear error in reaching this finding is therefore waived. Even
apart from waiver, the argument has no merit. Polizzi's evidence
of past abuse by Yaman's father was scant. In addition, the
district court found certain of Polizzi's accusations
"[im]plausible." As such, the district court did not commit clear
error in finding no past abuse by Yaman's father had occurred.

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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

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"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 belief" regarding the safety of the children.

Lastly, the district court stated that punishing the mother would

have, at best, a "very limited" deterrent effect.11 The district

court expressed discomfort with rewarding the party "more at fault

here," remarking that "[i]f it were just about which of these

people should be rewarded or punished, if the children were

chattel," it would award the children to Yaman. But, the district

court concluded, "children aren't chattel" and the Convention does

not treat them as such.

11
As the district court noted, if it declined (as it did) to
exercise supplemental jurisdiction over the state law claims, it
would be without prejudice to Yaman's right to immediately petition
the state court because the federal court would not have decided
the merits of the state claim. The district court did note that
there would likely be collateral estoppel effects from its factual
findings.

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 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.

II.

"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 (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 (1989). We also take into

account the signatories' intentions and expectations. See Sumitomo

Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180 (1982).

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 Importantly, "[i]t is well settled that the Executive

Branch's interpretation of a treaty 'is entitled to great weight.'"

Abbott v. Abbott, 130 S. Ct. 1983, 1993 (2010) (quoting Sumitomo

Shoji Am., Inc., 457 U.S. at 185). 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 (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).

III.

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 the district court

committed legal error by improperly requiring proof of past abuse

to a reasonable degree of medical certainty. She argues also that

the district court committed clear error when it found that Yaman

had not abused K.Y.

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A. Reasonable Degree of Medical Certainty

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

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judgment that, having considered all available evidence, it was

"more likely than not that . . . Yaman did not at any time sexually

abuse his children."

B. Evidence of Past Abuse

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

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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 district court's finding that Yaman

never abused his children finds ample support in the record. As

such, it is not to be disturbed by this court on clear error

review. See In re McMullen, 386 F.3d 320, 329 (1st Cir. 2004)

("[F]indings of fact are not to be disturbed [under clear error

review] if 'supportable on any reasonable view of the record'

. . . ." (quoting In re Carp, 340 F.3d 15, 22 (1st Cir. 2003))).

IV.

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

-22-
alternative, that it would not order the return of the "now

settled" children even if it had discretion to do so.

A. Equitable Tolling

Yaman argues first that the one-year period that triggers

the availability of Article 12's "now settled" defense is subject

to equitable tolling.12 That interpretation finds no support in the

text of the Convention. Nor does it gain support from any

extratextual source of evidence.

1. Text

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:

Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the
date of the commencement of the proceedings
before the judicial or administrative
authority of the Contracting State where the
child is, a period of less than one year has
elapsed from the date of the wrongful removal

12
Yaman also argues on appeal that Polizzi should have been
"equitably estopped" from arguing that the two children were "now
settled." Yaman relies upon a remark in a United States amicus
brief that an authority retains discretion to make the antecedent
determination whether a 'now settled' inquiry is necessary to its
determination. See Br. for United States as Amicus Curiae, Lozano
v. Alvarez, No. 12-820 (U.S. May 24, 2013), 2013 WL 2280948, at
*7. That issue -- of order of decisionmaking -- is neither before
us nor important to this appeal. The amicus statement does not
adopt the doctrine of equitable estoppel. For the same reasons we
reject equitable tolling, we reject the argument that the doctrine
of equitable estoppel precludes as a matter of law a return order.
To the extent the argument is that the conduct of the wrongfully
removing parent may be considered by the court, the court did so
here.

-23-
 or retention, the authority concerned shall
order the return of the child forthwith.
The judicial or administrative
authority, even where the proceedings have
been commenced after the expiration of the
period of one year referred to in the
proceeding paragraph, shall also order the
return of the child, unless it is demonstrated
that the child is now settled in its new
environment.

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.

Article 12 notably does not use a trigger such as "the

date the petitioning parent discovered or could have reasonably

discovered the child's location." That decision evidences on the

part of the drafters of the Convention a desire to have a clear

trigger point for assertion of the defense: the date of wrongful

removal or the date (in retention cases) of wrongful retention.

See Lozano, 697 F.3d at 51 n.8 ("It would have been a simple

matter, if the state parties to the Convention wished to take

account of the possibility that an abducting parent might make it

difficult for the petitioning parent to discover the child's

whereabouts, to run the period 'from the date that the petitioning

parent learned [or, could reasonably have learned] of the child's

-24-
whereabouts.' But the drafters did not adopt such language."

(alteration in original)).

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:

Unlike a statute of limitations prohibiting a parent from
filing a return petition after a year has expired, the
settled defense merely permits courts to consider the
interests of a child who has been in a new environment
for more than a year before ordering that child to be
returned to her country of habitual residency.

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.").

-25-
 2. Drafting History

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:

[W]here the residence of the child was
unknown, the period of six months referred to
in the previous paragraphs shall run from the
date of the discovery of the child, subject to
the proviso that the total period shall not
exceed one year from the date of the breach.

Id.

This two-period approach in the Preliminary Draft was

ultimately rejected in favor of the single-period approach

-26-
contained in Article 12. The single-period approach had two

benefits in the drafters' eyes: First, it eliminated the

"considerable difficulty" of determining the date the child's

location was or could have reasonably been discovered. See

Official Report No. 7, in 3 Actes et Documents 290, 291 ("Official

Report No. 7"). Second, it established a minimum time period

before an authority could consider whether a child was "now

settled." See Weiner, Uprooting Children in the Name of Equity, 33

Fordham Int'l L.J. 409, 436 (2010). "[T]he difficulties

encountered in any attempt to state this test of 'integration of

the child' as an objective rule resulted in a time-limit being

fixed which, although perhaps arbitrary, nevertheless proved to be

the 'least bad' answer to the concerns which were voiced in this

regard." Elisa Pérez-Vera, Explanatory Report, in 3 Actes et

Documents 426, 458 ("Explanatory Report").

3. U.S. Executive Branch Interpretation

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

-27-
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

*11-12.13 Second, although Yaman says the Executive Branch

interpretation has not been consistent, that is not so. See

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (observing that

the "weight" of the Executive Branch's position in a particular

case depends in part upon "its consistency with earlier and later

pronouncements"). Even before the Lozano amicus brief, the

Executive Branch had taken a consistent position.

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

13
The United States took the identical position as amicus
before the Second Circuit in Lozano. Mem. Br. for United States as
Amicus Curiae at 2, Lozano, 697 F.3d 41 (2d Cir. 2012) (No. 11-
2224).

-28-
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 the Civil Aspects of International Child Abduction,

Prelim. Doc. No. 2 (Oct. 2006), available at http://www.hcch.

net/upload/wop/abd_pd02efs2006.pdf ("2006 USCA Responses"). Given

an invitation to comment "on any other matters which they may wish

to raise concerning the practical operation" of the Convention, the

USCA responded:

The USCA supports the concept of equitable
tolling of the one-year filing deadline in
order to prevent creating an incentive for a
taking parent to conceal the whereabouts of a
child from the other parent in order to
prevent the timely filing of a Hague petition.

Id. at 568, 577.14

14
In response to another question asking about developments
in domestic judicial interpretation of the Convention, the USCA
cited several cases in which courts treated Article 12's one-year
period as subject to equitable tolling. 2006 USCA Responses at
217. The USCA prefaced its response, however, by noting that none
of those cases "c[ould] be said to accurately reflect the settled

-29-
 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 (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).

4. Sister Signatories

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

law of the land" because the United States Supreme Court had yet to
address the issue. Id. at 215. As the district court in this case
observed, this USCA response amounts to a summary of the case law
at the time, not a statement of its own interpretation of Article
12. Yaman, 919 F. Supp. 2d at 196.

-30-
(B.C.); A.C. v. P.C., [2005] HKEC 839 (H.K.); H.J. v. Secretary

for Justice, [2006] NZFLR 1005 (N.Z.).

5. Sister Circuits

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 in a place she is settled, parental misconduct aside, 697

F.3d at 54; as such, appeal to "intention[s]" or "purpose[s]" is

not enough to settle the question of whether equitable tolling

applies, see Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev.

533, 546-47 (1983) (observing that statutes pursue numerous goals

simultaneously). Second, the Ninth Circuit's reasoning does not

-31-
account for the fact that Article 12 already provides a mechanism

for deterring misconduct in the form of the authority it reserves

to a court to order the return of a child found "now settled."

We join the Second Circuit's views.

B. Authority to Order Return of a "Now Settled" Child

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).

-32-
 1. Text

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

-33-
courts in child custody and welfare matters, it felt this result

much better fit the limits on federal jurisdiction.15

As we read them, Articles 13 and 20 contain express

reservations of discretion to refuse to order return so as to

qualify the express requirements to order return contained

elsewhere in the Convention. By contrast, because the Convention

contains no express requirement to refuse to order the return of a

child "now settled," there is no need to expressly reserve

discretion so as to qualify any such requirement.

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]

15
The district court also expressed concern that if it had the
authority to order the return of a "now settled" child based upon
concealment, that "would be in effect [to] rebalanc[e] competing
public policy concerns that were already balanced by the drafters
of the Convention." If indeed the language of Article 12 were not
permissive but mandatory as to refusal to order return, that would
be a concern.

-34-
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.

-35-
 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 the Convention does not supplant remedies under "other

laws." 42 U.S.C. § 11603(h).

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

-36-
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 generically 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,

133 S. Ct. 2675, 2691 (2013) (alteration in original) (quoting

-37-
Ankenbrandt v. Richards, 504 U.S. 689, 714 (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 (2000) ("The

Constitution's foreign affairs provisions have been long understood

-38-
to stand for the principle that power over foreign affairs is

vested exclusively in the federal government.").16

Polizzi raises an argument quite similar to the district

court's, claiming that the Article 18 merely serves to clarify that

the Convention does not limit whatever power to return an authority

might have under other laws. Even if this reading of Article 18

were correct -- a point we need not decide -- the other powers not

limited by Article 18 include the power to order the return of a

settled child. We find that power reasonably implicit in both

Article 12 and Congress' grant to federal courts of jurisdiction

over Hague Convention actions, which we presume was enacted with

awareness of the broad equitable powers that those courts

customarily enjoy.

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."

16
We also recognize that any incursion into the traditional
state-law realm of domestic relations is minimal at most. No
action taken under the Convention is to be considered a
determination of the merits of a child custody issue. Convention,
art. 19; see also 42 U.S.C. § 11601(b)(4). Our determination that
return is not required under the Convention does not in any way
call into question the Turkish family court's custody decree.
Neither does it alter the need for parties to seek a remedy in
state law should they wish to reopen or commence new custody
proceedings. Federal courts' powers under the Convention extend
only so far as is necessary to enforce a preexisting custody decree
where such enforcement is effectuated by the return of a wrongfully
removed child. See Convention, art. 3(a) (making clear that
"wrongfulness" is predicated on a "breach of rights of custody
. . . under the law").

-39-
 2. U.S. Executive Branch Interpretation

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

-40-
. . . ."). 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:

If the alleged wrongdoer concealed the child's
whereabouts from the custodian necessitating a
long search for the child and thereby delayed
the commencement of a return proceeding by the
applicant, it is highly questionable whether
the respondent should be permitted to benefit
from such conduct absent strong countervailing
considerations.

1986 Legal Analysis, 51 Fed. Reg. at 10,509; see also id. ("Under

Article 12, the court is not obligated to return a child when

return proceedings pursuant to the Convention are commenced a year

or more after the alleged removal or retention and it is

demonstrated that the child is settled in its new environment."

(emphasis added)).

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

-41-
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."

The Executive is well informed concerning the
diplomatic consequences resulting from this
Court's interpretation of [the Convention],
including the likely reaction of other
contracting states and the impact on the State
Department's ability to reclaim children
abducted from this country

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) (internal quotation marks

omitted).

3. Sister Signatories

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

-42-
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).

4. Sister Circuits

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." We recognize that, taken in isolation, the text of

Article 12 can be read differently by different viewers. Coupled,

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however, with the rest of the text of the Convention, the

Convention's purposes, the inherent equitable powers of federal

courts, and the insights of the Executive Branch, we conclude that

the Convention confers upon a federal district court the authority

to order, at its discretion, the return of a child found to be "now

settled."

C. District Court's Alternate Holding: Declining to Order
Return Under Equitable Powers

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."17

17
Yaman seizes upon the following portion of the district
court's reasoning as evidence of circularity:
I don't think this is one of those egregious cases
where the actual act of concealment in effect
undermines settledness, and in that case I would
have simply found no settledness because . . . the
egregious conduct of concealment prevented the
children from really developing a settled
environment.
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:
I would not exercise . . . discretion to order the
return of the children, because on balance I feel
that while I'm troubled by the concealment that

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 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:

In conducting that equitable assessment, the
court could ultimately conclude that the
abducting parent's conduct in concealing the
child's whereabouts (and any other equitable
factors) justify returning the child to the
country of her habitual residence. Deterring
concealment and ensuring that abduction does
not confer tactical advantages on the
abducting parent are important animating
principles of the Convention. The court may
therefore consider the abducting parent's
misconduct, together with any other relevant
circumstances, such as whether return would
not be harmful or disruptive even though the
child has become settled, in deciding whether
to order her return.
In addition, given that Article 12
contemplates that the child's settlement could
be outweighed by other equitable factors, it
follows that Article 12 also affords the court
discretion to dispense with the "settled"
inquiry -- which can involve a fact-intensive
inquiry into the child's living situation --
when the court concludes that the
circumstances justify ordering return
regardless of the outcome of the settlement
inquiry. For instance, the conduct of the
concealing parent might be so extreme that
return is called for irrespective of other

occurred here and troubled by [Polizzi's] actions,
I believe on balance that discretion should be
exercised in favor of settledness, and I believe
frankly that's what the Hague Convention
contemplated in the ordinary case.
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.

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 circumstances. That authority is underscored
by Article 18, which provides that "[t]he
provisions of this Chapter [enumerating
exceptions] do not limit the power of a
judicial or administrative authority to order
the return of the child at any time."

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

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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.).18 The court considered explicitly each of those

interests articulated by Yaman before arriving at the conclusion

that it did. In the end, Yaman's argument amounts to the claim

that the district court ought to have assigned greater weight to

18
At oral argument, Yaman also complained that the district
court failed to investigate whether the two children would become
well settled in Turkey if removed. But we see no evidence from
Yaman directly on this point and the district court carefully
examined the evidence before it.

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the interests that spoke in favor of return. Such relative

weighting of interests by the district court, however, is not for

this court to second-guess, and especially not on an abuse of

discretion analysis.

V.

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.19 Indeed, under Article 19, "[a]

decision under this Convention concerning the return of the child

shall not be taken to be a determination on the merits of any

custody issue." Convention, art. 19.

We affirm the decision of the district court not to order

return.

No costs are awarded.

So ordered.

19
There is a separate proceeding by Yaman in the state court
of New Hampshire seeking to enforce the Turkish court's award of
custody.

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