Friedrich v. Friedrich (6th Cir. 1993)983 F.2d 1396
No. 92-3117
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EMANUEL FRIEDRICH,
Petitioner-Appellant,
v.
JEANA MICHELE FRIEDRICH; DAVID HARPER; and SHIRLEY HARPER,
Respondents-Appellees.
On Appeal from the United States District Court for the Southern
District of Ohio.
Decided and Filed January 22, 1993.
Before: BOGGS and SILER, Circuit Judges; and LAMBROS, Chief
District Judge. [The Honorable Thomas D. Lambros, Chief Judge,
United States District Court for the Northern District of Ohio,
sitting by designation.]
BOGGS, Circuit Judge, delivered the opinion of the court, in
which SILER, Circuit Judge, joined. LAMBROS, Chief District
Judge (pp. 13-14), delivered a separate dissenting opinion.
BOGGS, Circuit Judge. This is a case of first impression,
requiring us to determine when the removal of a child from one
country to another by one parent, without the consent of the
other, is “wrongful” as defined by the Hague Convention on the
Civil Aspects of International Child Abduction (“the
Convention”) as implemented by the United States Congress in the
International Child Abduction Remedies Act (“the Act”), 42
U.S.C. 11601-11610. Emanuel Friedrich appeals from the denial
of his petition for the return of his son, Thomas, to Germany.
Thomas was removed from Germany to the United States by his
mother, Jeana Friedrich, a few days after the Friedrichs
informally separated. The district court found that Mrs.
Friedrich did not wrongfully remove Thomas from Germany within
the meaning of the Convention because at the time of removal
Thomas was a “habitual resident” of the United States and Mr.
Friedrich was not exercising his parental custody rights. For
the reasons that follow, we reverse the district court’s ruling
and remand the case for a determination of whether, under German
law, Mr. Friedrich had custody rights at the time of the removal
that he was exercising or would have exercised but for the
removal, and for consideration of any affirmative defenses that
Mrs. Friedrich might raise.
I
In December 1989, Emanuel Friedrich married Jeana Friedrich
in the Federal Republic of Germany. Mrs. Friedrich, a citizen of
the United States, was a member of the United States Army
stationed in Bad Aibling, Germany. Mr. Friedrich, a citizen of
Germany, was employed on the military base as a bartender and
club manager.
On December 29, 1989, the Friedrichs’ only child, Thomas
David Friedrich, was born in Bad Aibling. During 1990 and early
1991, Thomas lived with both of his parents in Bad Aibling off
the military base. The Friedrichs’ marriage was a rocky one from
the start. Their first informal separation occurred in June
1990, but only lasted a weekend. The Friedrichs informally
separated for a second time in March 1991. For the majority of
this separation, Mr. Friedrich and his parents retained physical
custody of Thomas. Mrs. Friedrich lived on the military base.
In early May 1991, while still separated, the Friedrichs agreed
that Thomas would accompany his mother on a ten-day visit to her
parents’ home in Ironton, Ohio. Upon Thomas’s return to Germany,
the Friedrichs reunited, and Thomas lived with both of them until
late July 1991.
On the evening of July 27, 1991, the Friedrichs had a heated
argument at their apartment. During the argument, Mr. Friedrich
ordered Mrs. Friedrich to leave the apartment with Thomas and put
most of their belongings in the hallway, including some of
Thomas’s toys. Mrs. Friedrich, however, did not leave the
apartment until the next morning when she obtained assistance
from friends in the United States Army. Together, they took
Thomas and removed her possessions to on-base visiting quarters,
where she lived with Thomas for the next four nights, until
August 1, 1991. Mr. Friedrich did not interfere with the removal
of Mrs. Friedrich’s possessions or with the removal of his child.
He explained that he was intimidated by the soldiers and wanted
to avoid a scene in front of Thomas.
The on-base visiting quarters are not designed for permanent
residence and the daily rate is expensive. Therefore, Mrs.
Friedrich immediately sought alternative, less expensive
accommodations. Under military regulations, Mrs. Friedrich could
not live in the barracks on the base with her son. Mrs.
Friedrich testified that she quickly concluded that she had
nowhere to live with her son in Germany and that her only
recourse was to return to the United States. In the late evening
of August 1, 1991, without Mr. Friedrich’s permission, consent or
knowledge, Mrs. Friedrich left Bad Aibling en route to the United
States with Thomas.
Between the time she left the family apartment on July 28,
and the time she left Bad Aibling on August 1, 1991, Mrs.
Friedrich met with Mr. Friedrich at least twice to discuss their
separation and Thomas’s welfare. On July 29, 1991, Mr. Friedrich
visited with Thomas for four hours. On August 1, 1991, the
Friedrichs planned specific times for Mr. Friedrich to visit with
Thomas during the following week.
Mrs. Friedrich arrived in Ironton, Ohio on August 2, and
initiated a divorce action in Lawrence County, Ohio on August 9,
1991. Although the court issued a Letter Rogatory to the
appropriate German authorities, Mr. Friedrich claims that he
never received the letter or any notice of the judicial
proceedings in Lawrence County, Ohio. On August 11, 1991, Mrs.
Friedrich returned to Germany without her son and immediately
sought an emergency discharge from the United States Army. On
August 28, 1991, the Lawrence County, Ohio, Court of Common Pleas
issued a temporary order in favor of Mrs. Friedrich and ordered
that Thomas not be removed from Ohio until further order of the
court. On September 15, 1991, Mrs. Friedrich was discharged from
the United States Army, and she returned to her parents’ home in
Ironton, Ohio.
Mr. Friedrich discovered that Thomas had been removed to the
United States on August 3, 1991, and filed a claim in Germany
seeking to obtain parental custody soon afterward. On August 22,
1991, a Municipal Court-Family Court in Rosenheim, Germany
granted Mr. Friedrich parental custody of Thomas. Mrs. Friedrich
did not receive notice of that judicial proceeding.
Mr. Friedrich filed this action on September 23, 1991,
alleging that Mrs. Friedrich had wrongfully removed Thomas from
Germany in violation of the Hague Convention on Civil Aspects of
International Child Abduction. On January 10, 1992, the district
court denied Mr. Friedrich’s claim.
II
The Convention on Civil Aspects of International Child
Abduction was adopted by the signatory nations in order “to
protect children internationally from the harmful effects of
their wrongful removal or retention and to establish procedures
to ensure their prompt return to the State of their habitual
residence, as well as to secure protection for rights of
access.” Hague Convention, Preamble. The United States
ratified the Convention on April 29, 1988. Germany is also a
signatory nation to the Convention. Pursuant to Article 19 of
the Convention and section 2(b)(4) of the Act, a United States
district court has the authority to determine the merits of an
abduction claim, but not the merits of the underlying custody
claim. It is important to understand that “wrongful removal”
is a legal term strictly defined in the Convention. It does not
require an ad hoc determination or a balancing of the equities.
Such action by a court would be contrary to a primary purpose of
the Convention: to preserve the status quo and to deter parents
from crossing international boundaries in search of a more
sympathetic court.
Under the Convention, the removal of a child from one
country to another is wrongful when:
a it is in breach of rights of custody attributed to a
person, an institution or any other body, either
jointly or alone, under the law of the State in which
the child was habitually resident immediately before
the removal or retention; and
b at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.
The rights of custody mentioned in sub-paragraph a
above, may arise in particular by operation of law or
by reason of a judicial or administrative decision,
or by reason of agreement having legal effect under
the law of that state.
Hague Convention, Article 3.
Under the Act, Mr. Friedrich has the burden of showing by a
preponderance of the evidence that the removal was wrongful. 42
U.S.C. 11603(e)(1). If Mr. Friedrich meets his burden, the
burden shifts to Mrs. Friedrich to show 1) by clear and
convincing evidence that there is a grave risk that the return of
the child would expose the child to physical or psychological
harm; Hague Convention, Article 13(b), 42 U.S.C.
11603(e)(2)(A); 2) by clear and convincing evidence that the
return of the child “would not be permitted by the fundamental
principles of the requested State relating to the protection of
human rights and fundamental freedoms”; Hague Convention,
Article 20, 42 U.S.C. 11603(e)(2)(A); 3) by a preponderance of
the evidence that the proceeding was commenced more than one year
after the abduction and the child has become settled in its new
environment; Hague Convention, Article 12, 42 U.S.C.
11603(e)(2)(B); or 4) by a preponderance of the evidence that
Mr. Friedrich was not actually exercising the custody right at
the time of removal or retention, or had consented to or
subsequently acquiesced in the removal or retention; Hague
Convention, Article 13(a), 42 U.S.C. 11603(e)(2)(B).
Therefore, as a threshold matter, Mr. Friedrich must prove
by a preponderance of the evidence that 1) Mrs. Friedrich removed
Thomas from his “habitual residence,” and 2) Mr. Friedrich was
exercising his parental custody rights over Thomas at the time of
removal, or that he would have exercised his rights but for the
removal, under the law of the state of Thomas’s habitual
residence. If Mr. Friedrich meets this burden, Mrs. Friedrich
may fall back on one of the four affirmative defenses. The
district court held that Mr. Friedrich failed to prove both parts
of the test. Instead, the court found that 1) Thomas’s habitual
residence was “altered” from Germany to the United States when
Mr. Friedrich set some of Thomas’s belongings out in the hallway
on July 27, 1991, and 2) Mr. Friedrich “terminated” his custody
rights when he “unilaterally expelled” Mrs. Friedrich and
Thomas from the apartment. The district court did not reach the
merits of any affirmative defenses.
III
A
The Convention does not define “habitual residence.”
Little case law exists on the Convention in general; no United
States cases provides guidance on the construction of “habitual
residence.” The British courts have provided the most complete
analysis. In Re Bates, No. CA 122.89, High Court of Justice,
Family Div’n Ct. Royal Court of Justice, United Kingdom (1989),
the High Court of Justice concluded that there is no real
distinction between ordinary residence and habitual residence.
Id . at 10. The court also added a word of caution:
“It is greatly to be hoped that the courts will resist
the temptation to develop detailed and restrictive
rules as to habitual residence, which might make it
as technical a term of art as common law domicile. The
facts and circumstances of each case should continue to
be assessed without resort to presumptions or
pre-suppositions.”
Id. (quoting Dicey & Morris, The Conflicts of Laws 166 (11th
ed.)). We agree that habitual residence must not be confused
with domicile. To determine the habitual residence, the court
must focus on the child, not the parents, and examine past
experience, not future intentions.
Thomas was born in Germany to a German father and an
American mother and lived exclusively in Germany except for a few
short vacations before Mrs. Friedrich removed him to the United
States. Mrs. Friedrich argues that despite the fact that
Thomas’s ordinary residence was always in Germany, Thomas was
actually a habitual resident of the United States because: 1) he
had United States citizenship; 2) his permanent address for the
purpose of the United States documentation was listed as Ironton,
Ohio; and 3) Mrs. Friedrich intended to return to the United
States with Thomas when she was discharged from the military.
Although these ties may be strong enough to establish legal
residence in the United States, they do not establish habitual
residence.
A person can have only one habitual residence. On its face,
habitual residence pertains to customary residence prior to the
removal. The court must look back in time, not forward. All of
the factors listed by Mrs. Friedrich pertain to the future.
Moreover, they reflect the intentions of Mrs. Friedrich; it is
the habitual residence of the child that must be determined.
Mrs. Friedrich undoubtedly established ties between Thomas and
the United States and may well have intended for Thomas to move
to the United States at some time in the future. But before Mrs.
Friedrich removed Thomas to the United States without the
knowledge or consent of Mr. Friedrich, Thomas had resided
exclusively in Germany. Any future plans that Mrs. Friedrich had
for Thomas to reside in the United States are irrelevant to our
inquiry.
The district court appears to agree that before the argument
of July 27, 1991, Thomas was a habitual resident of Germany. The
district court, however, found that Thomas’s habitual residence
was “altered” from Germany to the United States when Mr.
Friedrich forced Mrs. Friedrich and Thomas to leave the family
apartment.
Habitual residence cannot be so easily altered. Even if we
accept the district court’s finding that Mr. Friedrich forced
Mrs. Friedrich to leave the family apartment, no evidence
supports a finding that Mr. Friedrich forced Mrs. Friedrich to
remove Thomas from Germany; Mr. Friedrich was not even aware of
the removal until after the fact. Thomas’s temporary three-day
stay on a United States military base did not transfer his
habitual residence to the United States, even if it was
precipitated by Mr. Friedrich’s angry actions in a marital
dispute. As a threshold matter, a United States military base is
not sovereign territory of the United States. The military base
in Bad Aibling is on land which belongs to Germany and which the
United States Armed Services occupy only at the pleasure of the
German government. See Dare v. Secretary of Air Force, 608 F.
Supp. 1077, 1080 (D. Del. 1985).
More fundamentally, Thomas’s habitual residence in Germany
is not predicated on the care or protection provided by his
German father nor does it shift to the United States when his
American mother assumes the role of primary caretaker. Thomas’s
habitual residence can be “altered” only by a change in
geography and the passage of time, not by changes in parental
affection and responsibility. The change in geography must occur
before the questionable removal; here, the removal precipitated
the change in geography. If we were to determine that by
removing Thomas from his habitual residence without Mr.
Friedrich’s knowledge or consent Mrs. Friedrich “altered”
Thomas’s habitual residence, we would render the Convention
meaningless. It would be an open invitation for all parents who
abduct their children to characterize their wrongful removals as
alterations of habitual residence.
This is a simple case. Thomas was born in Germany and
resided exclusively in Germany until his mother removed him to
the United States on August 2, 1991; therefore, we hold that
Thomas was a habitual resident of Germany at the time of his
removal.
B
The district court also found that Mr. Friedrich
“terminated his actual exercise of his parental custody rights”
when he “unilaterally” expelled Mrs. Friedrich and Thomas from
his residence. We are doubtful that the evidence supports a
finding that Mr. Friedrich unilaterally expelled Mrs. Friedrich
and Thomas from the family apartment. It is undisputed that
during the heated argument on July 27, 1991, Mr. Friedrich
removed some and maybe even all of Thomas’s toys from the
apartment. Yet, Mrs. Friedrich and Thomas remained in the
apartment through the night. Mrs. Friedrich was the one who
actually removed Thomas from the residence and did so with the
help of the United States Army.
Even if we accept the district court’s finding that Mrs.
Friedrich removed Thomas from Mr. Friedrich’s residence only
because she was forced to do so by Mr. Friedrich, we doubt that
Mr. Friedrich terminated his custody rights. Mr. Friedrich
continued to have contact with both Mrs. Friedrich and his child.
Mr. Friedrich assisted Mrs. Friedrich in establishing quarters on
the base and helped her move Thomas’s crib on to the base. On
July 29, 1991, Mr. Friedrich visited his child for four hours.
On August 1, 1991, Mr. Friedrich met with Mrs. Friedrich to
discuss the future of their relationship and the custody of
Thomas. Although they gave conflicting accounts of the meeting,
both stated that plans were made for Mr. Friedrich to visit
Thomas within the next week.
Under the Convention, whether a parent was exercising lawful
custody rights over a child at the time of removal must be
determined under the law of the child’s habitual residence.
Hague Convention, Article 3. We have determined that Thomas was
a habitual resident of Germany when Mrs. Friedrich removed him to
the United States. Neither the district court, nor either party
on appeal, applied German custody law to the above facts. At
oral argument, however, both parties agreed that German custody
law is similar to American law. Under American law, custodial
rights can only be terminated by judicial action, or by
circumstances much more extraordinary than those presented here.
We would be surprised if Mr. Friedrich’s actions terminated his
custody rights under German law, but we do not make that factual
determination. Instead, we remand to the district court with
instructions to make a specific inquiry as to whether, under
German law, Mr. Friedrich was exercising his custody rights at
the time of Thomas’s removal.
IV
Every family dispute has its own unique set of facts, and
the case before us certainly is no different. However, there is
a central core of matters at which the Hague Convention was
aimed: situations where one parent attempts to settle a difficult
family situation, and obtain an advantage in any possible future
custody struggle, by returning to the parent’s native country, or
country of preferred residence. That is exactly what happened
here. The rights and wrongs of the actions of the respective
parents are not before us for disposition on the merits. But it
is clear, as shown both by actions at the time and by the
subsequent strenuous course of this litigation, that both parents
maintained a lively interest in their relationship with their
child, Thomas.
Under such circumstances, the Hague Convention is clearly
designed to insure that the custody struggle must be carried out,
in the first instance, under the laws of the country of habitual
residence, which is Germany in this case.
The affirmative defenses of Section 11603(e)(2) of the Act
offer an opportunity, in extraordinary cases, for a court in the
country of flight to consider the practical realities of the
situation. However, it is the clear import of the Convention
that in most cases the duty of that court, when the niceties of
the convention are met, is to return the child to the country of
habitual residence for resolution of the custody dispute under
the laws of that country.
V
For the foregoing reasons, we REVERSE the district court’s
denial of the petition and REMAND the case to the district court
with instructions to determine whether, under German law, Mr.
Friedrich was exercising his custody rights over Thomas at the
time of the removal and to consider any affirmative defenses Mrs.
Friedrich might raise.
THOMAS D. LAMBROS, Chief District Judge, dissenting. For
reasons set forth below, I believe the decision of the trial
judge in denying the return of Thomas Friedrich to Germany should
be affirmed. The trial judge’s laudable efforts in seeking a
voluntary resolution of the dispute over the child’s custody and
his determination that the mother did not wrongfully remove the
child from Germany are compatible with the objectives and
imperatives of The Hague Convention on the Civil Aspects of
International Child Abduction.
The findings of fact made by the judge shall not be set
aside unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of
the witnesses. Fed. R. Civ. P. 52(a). I believe the trial
judge’s decision to deny return of the child to Germany is
supported by the evidence produced at trial and is therefore not
clearly erroneous.
Respondent testified, ” [h]e threw everything I owned and
my baby owned out of the house. There was nothing left in that
house.” Petitioner’s testimony corroborates this:
Question: … [with] regard to your asking her to
leave, requesting her to leave, and removing her
personal belongings and your son’s personal belongings
into the hallway outside the apartment. Did that
occur?
Answer: yes, sir.
Focusing on the totality of the testimony given, there may
be a dispute as to whether petitioner threw out respondent and
her son however, the trial judge sitting as trier of fact,
determining credibility of the witnesses and the value of
testimony given, found that petitioner expelled the wife and
child from the apartment and terminated actual exercise of his
parental custody rights over the child. This finding by the
trial judge is not clearly erroneous.
A finding is ‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake had been committed. Anderson v. Bessemer City, 470 U.S.
564, 573 (1985) (quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)). This standard plainly does not
entitle a reviewing court to reverse the finding of the trier of
fact simply because it is convinced that it would have decided
the case differently. Anderson at 573. I have no definite and
firm conviction that a mistake has been made.
With regard to the treaty itself, Article 13 provides:
… the judicial or administrative authority of the requested
State is not bound to order the return of the child if the
person, institution or other body which opposes its return
establishes that- ®a the person,… having the care of the person
of the child was not actually exercising the custody rights at
the time of removal or retention….
In defining the rights of custody, Article 5 of the
Convention includes rights relating to the care of the person of
the child and the right to determine the child’s place of
residence. By expelling the child from the apartment, petitioner
gave up his right to determine the child’s place of residence
which means that there was no right of custody to assert in the
district court. Since there was no right of custody because
petitioner gave it up, there was no breach of the rights of
custody. Thus, removal was not wrongful under the terms of The
Convention.
For these reasons, I believe the district court’s decision
should be affirmed.
=======================HILTON NOTE==============================
On 06 May 1994 a letter was sent by Gary J. Gottfried, Esq., of
Columbus, Ohio, to this office. In this letter it was learned
that Federal District court has issued its order returning the
child to Germany for further proceedings. The letter further
states that this has been in process for just about three (3)
years.