Denis v Gerlinde [FRG 1996]District Court of Augsburg, Family Court
8 F 1491/96, Entered on 09 Oct 1996
14 International Abduction [FRG 1996]
===========================================================
District Court of Augsburg
Family Court
Released by
District Court Justice
Frobel
8 F 1491/96
Entered 09 Oct 1996
In the lawsuit
Supersac Jeannette (born on 06/02/1986), presently residing
with her mother and grandmother.
Parents:
Father: Supersac Denis, La Cuiffaudiere, F-85150 Ste Flaive
de Loups, France
Plaintiff
Person with power of attorney: Ra Martens, Ohmstr. 7.
Postfach 440319, 80752, Munchen and RA Bloch,
Kurfulrstendamm 42, 10719 Berlin
Mother: Supersac Gerlinde, Hambacher Weg 11, 86179 Augsburg
Plaintiff in the first.
Other Parties Involved:
Gansbucher Else (grandmother), Hambacher Weg 11, 86179
Augsburg
Defendant in the second
Person with Power of Attorney: RA Rick, Brienner Str. 48
80333 Munchen
City Youth Office Augsburg
Pursuant to restitution of a child based on the verbal
agreement from 27/09/1996 on 07/10/1996 on the following
Resolution:
1. In alteration of the District-and Family Courts’ of
Augsburg decision of 17/03/1994 (AZ: 1 F 2279/93) in full
accordance with the decision of the Higher Regional Court of
Munchen of 20/05/1994 (AZ: 4 UF 104/94) the restitution of
Jeannette Supersac to her father (plaintiff) will be denied.
2. The father’s (plaintiff’s) proposal will be refused.
3. The parents will each carry half of the burden of the
legal expenses, Expenses outside of legal between the
plaintiff and the defendant will not be reimbursed.
3. The costs have been fixed at 5,000.00 DM.
Grounds:
The plaintiff and the defendant in the first are married to
each other. They are more than temporarily separated.
Jeannette (born on 06/02/1986) was born out of their union.
A divorce procedure involving Jeannette’s parents is in
course in France.
Up until the present, this has not yet been legally
concluded.
A French court has temporarily granted parental care for
Jeannette to the father.
Since Jeannette’s mother kept Jeannette from leaving on
occasion of a holiday stay, proceedings on the restitution
with the District Court – Family Court of Augsburg under
case number 1 F 2279/93 according to the gaunt agreement
over the civil rights aspects of international child
abduction in course.
Under resolution of 13/03/1994 in full accordance with the
resolution of the Higher Regional Court of Munchen of
20/05/1994 (AZ: 4 UF 104/94), the restitution of the child
was assigned to the father. This decision has been legally
in effect since 20/05/1994.
Jeannette could not be turned over to her father because in
the meantime she had disappeared with the defendant in the
second.
In proceedings 1F 515/94, the plaintiff has pursued
restitution of his daughter through the District Family
Court of Augsburg.
In August of 1996 the grandmother and the child have
returned. The defendant in the second turned herself in to
the criminal prosecution authorities.
The father upheld the view that from thenceforth, Jeannette
should be returned to him. In this regard, he allegedly
makes appeal to the decision of 1/03/1994. Most especially,
he claims that with him, the child would also be kept out of
harm’s way.
He sets forth the following proposal:
In the event that the child Jeannette will not be
voluntarily returned to him, the plaintiff will be empowered
to take the child away from the defendants and any third
parties, who acting out the defendants’ approval keep the
child in their care, and to be entitled to the help of
executors of the law and the police. Since a danger exists,
as with the previous threat of possible use of violence, the
restitution of the child may be prevented by a renewed
taking the child to a third location, it will expressly be
sought not to be the first in threatening with the use of
violence.
The defendants propose:
1. The decision of the Augsburg District Court 1 F
2279/93 of 17/03/1994 will be lifted.
2. The restitution claim will be denied.
Allegedly, Jeannette wants, in any case, to remain in
Augsburg. In the event of a return, the girl would allegedly
undergo severe physical and mental stress.
Due to further details in the case, reference will be made
to the exchanged written statements.
The plaintiff and the defendants and the child Jeannette
were heard on 27/09/1996. Reference will be made to the
those written statements.
The City Youth Office of Augsburg was called in. A statement
was submitted (via fax) on 04/10/1996 to the court
II.
The appealed family Court is according to 5 of the custody
agreement – execution law – has jurisdiction, as the child
is residing in the local court district.
The father’s view that the 17/03/1994 resolution in
proceedings 1 F 227 9/93 should continue to be executed, is
not sustained by the court.
The Higher Regional Court of Koblenz (FamRZ 1994, 183) has
decided that in analogous use of 1696 BGB to be expressed
ideas of a decision amendment are not subject to any
reservations in the event of altered circumstances.
In so far as the plaintiff appeals to a decision of the
Higher Regional Court of Karisruhe of 22/06/1993, recently
settled by the appealed court in proceedings 1 F 515/94. No
reservations exist on the part of this court to carry out
restitution of the daughter to the father.
At present however lies a new matter ahead.
The child spent 2 and 1/2 years with her grandmother. In her
personal hearing Jeannette expressly refused a return to her
father. She would like to remain in Augsburg, an environment
she is familiar with from her past.
In the resolution of 29/0911 995 (AZ: 4 UF 218/94) the
Higher Court of Munchen executed the following:
“After additional time has elapsed, in which Jeannette’s
father’s influence over her has disappeared, a strengthened
resistance on the part of the child is to be anticipated. At
the child’ age of 9 and 1/2 years, her will cannot go
unconsidered.”
Based on a relevant discussion with Jeannette, the engaged
experts come to the conclusion that the mother is the next
closest relative to Jeannette. If the child should
immediately move in with her father, behavioral problems on
the part of the child, as well as psychic illness are not to
be excluded. It can be anticipated that intensive family
therapy would be necessary. The relationship between the
child and her father is so significantly strained that at
present, it is hardly imaginable that the father could
assume the responsibility of the parental care in a way that
would benefit the child.
The court is in agreement with this view.
An investigation of the 17/03/1994 decision will follow
these altered set of circumstances.
In accordance with 13 Abs I b of the gaunt agreement over
the civil rights aspects of international child abduction,
restitution of the child can be denied if this should entail
severe risk of physical or emotional damage.
This condition has now surfaced even more.
The court does not fail to recognize that this condition was
brought on by the disappearance. The main concern here,
however, is the well being of the child, who is not
responsible for the actions of the adults.
Jeannette expressly refuses returning to her father. In her
hearing it became clear that there are no special bonds with
her brother who lives in France. Hence, the so-called issue
of separation of siblings is not in need of any further
consideration.
In the meantime, Jeannette has reached an age and level of
maturity, by which it seems appropriate to take her opinion
into consideration. Hence, it is to be considered according
to the present situation and Article 13 Abs. II of the gaunt
agreement of the civil rights aspects of international child
abduction.
According to the determination of the City Youth Office of
Augsburg, regulating conditions are in place for the mother
of the child. Therefore, in sum, no further reservations
would stand in the way of a further stay of the child in
Augsburg.
Thus, in keeping with such, the defendants’ proposals – in
the tenor in which they were expressed – were to be
followed.
Based on this decision the father’s lawsuit proposal is
deemed unsuccessful. Furthermore the 17/03/1994 verdict is
to be amended.
Further reference to Dr. Bernd Hippler’s assessment will not
be made. The problem will be resolved with experts engaged
by the court.
As far as Dr. Hippler executes, “Based on a renewed
arrangement between the mother’s attorney and the Family
Court, the mother could be persuaded to interrupt foreign
stay and to agree to a trial date with regard to the further
custody and visitation rights” this does not correspond to
the actual circumstances. An arrangement with the Family.
Court was not given at any time. An arrangement has only
materialized with the Public Prosecutor, Criminal Court,
respectively.
Costs: 94 Abs. III Clause 2′ Costs, 13 [illegible in
fax] Abs. PGG.
Costs [Goodwill]: 94 Abs. I Nr. 6, Abs. II, 30 Abs. II
Costs
Frobel
District Court Justice
Proclaimed on the 7th of October, 1996
Triffo, Jang
As Charter. Officer of the Business Office
For the consonance of completion
With the signature
Augsburg, the 17th of October 1996
[Illegible in FAX]
Business Office of the District Court
Wenninger
Justice Employee