Supreme Court At-a-Glance Contributor Ryan M. Borden, Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.

No. 2021-0234

January 13, 2022



  • Whether the trial court erred in denying Father’s motion to exercise temporary emergency jurisdiction over the parties’ custody dispute pursuant to New Hampshire’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and granting Mother’s petition to enforce the parties’ Turkish child custody order.


The parties married in December 2010 in New Hampshire.  Mother moved to Turkey and gave birth to their daughter in 2011.  Father remained in the United States.  Until 2019, daughter remained in Turkey where she attended school and received medical care.  The parties divorced in Turkey in 2015.  Mother received full custody and Father received visitation rights.  In 2019, daughter spent two months with Father.  At the end of the visit, Father refused to let daughter return.  Mother obtained a job in Massachusetts so she could see daughter, but Father still refused to return daughter.

Mother brought a petition for expedited enforcement of a foreign child custody order in April 2021.  A day after being served, Father filed a motion asking the trial court to exercise temporary emergency jurisdiction over the dispute pursuant to the UCCJEA, arguing that daughter was present in New Hampshire and was threatened with mistreatment in Turkey if returned to Mother’s custody.  Mother objected, raising Father’s refusal to return daughter to her custody, his harm to daughter by refusing to let her be with Mother and Mother’s family in Turkey, and that Father should not be allowed to litigate the matter in New Hampshire when the Turkish order controlled.  The trial court heard evidence and offers of proof, denied Father’s motion, and granted Mother’s petition for enforcement.  Father appealed.

On appeal, the Court stated under the Hague Convention (“Convention”), a parent alleging wrongful retention has the burden of establishing a prima facie case of wrongful retention by a preponderance of the evidence and that retention is wrongful if (1) the child was habitually residence in one State and has been … retained in a different state; (2) the … retention was in breach of the petitioner’s custody rights under the law of the State of the habitual residence; and (3) the petitioner was exercising those rights at the time of the … retention.  Father did not challenge Mother’s prima facie case.

Once a prima facie case is established, the Court reiterated that the child must be promptly returned unless an exception applies. Father raised an exception under Article 12 of the Convention, which provides that when more than one year has elapsed between wrongful retention and commencement of proceedings, a court must order the child returned unless the child is now settled in her new environment.  The Court rejected Father’s argument that the trial court did not determine if daughter was settled.  The Court found the trial court assumed that daughter was settled, but even if an exception applies, the trial court still has discretion to return the child, which is reviewed under an unsustainable exercise of discretion standard.  Because Father only argued that the trial court failed to exercise its discretion – not that it unsustainably exercised its discretion – the Court rejected Father’s arguments.

The Court rejected Father’s arguments under the UCCJEA that the trial court erred in declining to exercise emergency jurisdiction because the only competent evidence demonstrated daughter was threatened with abuse or mistreatment in Mother’s custody.  Father’s only evidence was his self-serving affidavit, which the trial court was not required to (and did not) credit.  The Court found the decision was reasonable given the fact that Father had never sought to modify the Turkish order and continued to let Mother visit daughter.

The Court rejected Father’s argument that the trial court erred in declining to exercise emergency jurisdiction because it decided the matter without conducting an evidentiary hearing.  No case law required an evidentiary hearing, the UCCJEA contained no such requirement, and the Court held that the trial court did not unsustainably exercise its discretion.  The Court rejected Father’s federal due process arguments because Father received actual notice of Mother’s petition and actively participated in the matter.

The Court rejected Father’s argument that the parties modified the custody order when Mother allowed Father to retain custody between 2019 and 2021, because extrajudicial modifications are not enforceable under the UCCJEA.  It also rejected his argument that the Turkish order should not have been enforced because he did not have an opportunity to be heard in the Turkish proceedings.  The Court found that the translated Turkish order demonstrated Father had an opportunity to be heard in the Turkish proceedings.


Bloomenthal Law Office, Nashua (Sandra Bloomenthal on the brief and orally), for the petitioner.  Ropes & Gray, Boston (Daniel V. Ward, Erin Macgowan, and Elias R. Feldman on the brief, and Daniel V. Ward orally), and Preti, Flaherty, Beliveau & Pachios, Concord (William C. Saturley on the brief), for the respondent.