USA – FEDERAL – FRIEDRICH – 1999 FRIEDRICH v THOMPSON (FRIEDRICH): The mother had kept the child here in the USA after a visit. The mother files a civil custody action in the State District court. The court gives the mother temporary custody and prohibits the removal of the child to Germany.
Friedrich v Thompson (Middle Dist 1999)Civ No 1: 99 CV 00772 (Merits of case)
15 Interntional Abduction [USA 1999]
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EMANUEL FRIEDRICH, )
Petitioner, )
)
v. ) 1:99CV00772
)
JEANA MICHELLE THOMPSON, )
Respondent. )
ORDER AND JUDGMENT
FOR RETURN OF CHILD TO PETITIONER
Beaty, District Judge.
001 This matter is before the Court on Petitioner Emanuel
Friedrich’s (“Friedrich”) Petition for Return of Child to
the Petitioner [Document #1] and on Friedrich’s Motion for
Return of Child to Petitioner and Attorney’s Fees [Document
#2]. Both documents were filed pursuant to the Convention on
the Civil Aspects of International Child Abduction, October
25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 49 [hereinafter
the Hague Convention], and the provisions of the
International Child Abduction Remedies Act, 42 U.S.C.
11601 (“ICARA”). For the reasons enumerated in the
MEMORANDUM OPINION filed contemporaneously herewith,
Friedrich’s Motion for Return of Child to Petitioner
[Document #2] is GRANTED. With respect to Petitioner’s
motion for attorney’s fees, Respondent Jeana Michelle
Thompson (“Thompson”) is ordered to respond on or before
September 23, 1999. The Court will thereafter consider the
appropriateness of Petitioner’s request for attorney’s fees
and necessary expenses.
This the 26th day of November, 1999.
/s/ James Beaty
____________________________
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EMANUEL FRIEDRICH, )
Petitioner, )
)
v. ) 1:99CV00772
)
JEANA MICHELLE THOMPSON, )
Respondent. )
MEMORANDUM OPINION
Beaty, District Judge.
I. INTRODUCTION
002 This matter is before the Court on Petitioner Emanuel
Friedrich’s (“Friedrich”) Petition for Return of Child to
the Petitioner [Document #1] and on Friedrich’s Motion for
Return of Child to Petitioner and Attorney’s Fees [Document
#2]. Both documents were filed pursuant to the Convention on
the Civil Aspects of International Child Abduction, October
25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 49 [hereinafter
the Hague Convention], and the provisions of the
International Child Abduction Remedies Act, 42 U.S.C.
11601 (“ICARA”). For the reasons stated herein, Friedrich’s
Motion for Return of Child to Petitioner [Document #2] is
GRANTED. With respect to Petitioner’s motion for attorney’s
fees, Respondent Jeana Michelle Thompson (“Thompson”) is
ordered to respond on or before September 23, 1999.
II. FACTUAL AND PROCEDURAL BACKGROUND
003 Thomas David Friedrich (“the child”) was born to
Emanuel Friedrich and Jeana Michelle Thompson on December
29, 1989 in Bad Aibling, Federal Republic of Germany, and
lived with both parents until their informal separation on
July 28, 1991. FN1 On August 1, 1991, without Friedrich’s
consent, Thompson left Germany with the child, bound for her
home town Ironton, Ohio. There, on August 9, 1991, she
brought an action for divorce. On August 3, 1991, Mr.
Friedrich discovered that Thomas had been removed to the
United States. Friedrich sought the return of the child in
the German Family Court, and was awarded sole custody of the
child on August 22, 1991. Friedrich, seeking the return of
his son, filed a petition pursuant to the Hague Convention
in the United States District Court for the Southern
District of Ohio. Finding that the habitual residence of the
child was the United States and that Friedrich had not been
exercising his parental tights when the child was taken, the
district court denied Friedrich’s petition. On January 22,
1993, the United States Court of Appeals for the Sixth
Circuit reversed the district court’s ruling that the
child’s habitual residence was the United States, holding
that the child was an habitual resident of Germany.
Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993)
(“Friedrich I”). The appellate court remanded the issue of
whether Friedrich had been exercising parental rights
protected by German law at the time of the child’s removal.
On remand, the district court held that Friedrich had been
exercising parental rights within the meaning of the
Convention, and ordered that the child be returned to
Germany. However, the court stayed the order pending an
appeal by Thompson to the Sixth Circuit. The Sixth Circuit
affirmed the district court’s order, and the child was
returned to Germany. Friedrich v. Friedrich, 78 F.3d 1060
(6th Cir. 1996) (“Friedrich II”).
004 In Germany, on December 5, 1996, the Court of Appeals
in Munich awarded sole custody of the child to Petitioner.
Although that court’s order made no mention of visitation
rights for Respondent, Petitioner verbally agreed to allow
the child to visit with his mother. The first visit took
place in the summer of 1997 when Respondent came to Bad
Aibling, Germany for a period of two weeks. The next visit
was in 1998 when the child was permitted to visit for a
month with Respondent at her home in the state of Ohio. Both
visits took place without incident or concern for the
well-being of the child. The last visit, which is the
subject of this matter, began when Petitioner placed his son
on a flight from Germany to Winston-Salem, North Carolina
for a visit that was to last from July 31, 1999 to September
4, 1999. The visit proceeded according to plan until a
telephone conversation between Petitioner and Respondent on
or about August 16, 1999, in which Respondent informed
Petitioner that there may be some problems with the
scheduling of the child’s return flight on September 4,
1999. Respondent informed Petitioner that the child might be
arriving to Germany sooner or later than anticipated.
Respondent informed Petitioner that she would call him back
to let him know of the changes. By August 31, 1999,
Petitioner had not heard from Respondent concerning the
changes in the flight arrangements. Petitioner called
Respondent’s residence several times, but he did not get an
answer. When he finally got an answer on September 1, 1999,
it was Rocky Thompson, Respondent’s husband. Petitioner
asked Mr. Thompson to have Respondent call him about the
changes in the chfld’s ilight so that Petitioner would know
when to pick the child up at the airport. Respondent,
however, never returned Petitioner’s call. Petitioner then
called the police in Winston-Salem, North Carolina, to ask
them to check on his ex-wife’s residence to verify that she
and the child were fine and to ask that she call Petitioner.
The police confirmed that everything was normal at
Respondent’s residence and delivered the message for
Petitioner. Petitioner contacted the police a second time on
September 2, 1999, when he had not heard from Respondent.
005 Instead of responding, Respondent filed a civil
custody action in Forsyth County, North Carolina, District
Court Division 99 CVD 6586 on September 3, 1999, and thereby
obtained temporary custody of the child. That order, which
has not been properly served on Petitioner, granted
temporary custody to Respondent and prohibited Petitioner
from returning the child to Germany without the consent of
the State District Court. The State District Court scheduled
a hearing on this matter for 9:30 a.m. on September 13,
1999.
005 After receiving a fax copy of the custody order on
September 6, 1999, Petitioner filed a second Hague petition
for the return of the child with the Central Authority of
the Federal Republic of Germany on September 8, 1999. This
petition came to the attention of the United States
Department of State, which serves as the Office of
Children’s Issues, and performs the function of the Central
Authority of the United States pursuant to the Hague
Convention. Hague Convention, art. 6, T.I.A.S. No. 11670, at
5, 1343 U.N.T.S. 49, 99. In a letter dated September 10,
1999, the Central Authority of the United States notified
this Court of Petitioner’s pending application and further
advised the Court of its obligations under the Hague
Convention. On September 9, 1999, Petitioner filed the
present action before this Court – Motion for Return of
Child to Petitioner and Attorney’s Fees – in accordance with
the Hague Convention. Petitioner also moved for an expedited
hearing and requested that the Court, pursuant to Article 16
of the Hague Convention, stay the custody action filed by
Respondent in the State District Court, pending the
determination of Petitioner’s application for return of the
child to his custody. Hague Convention, art. 16, T.I.A.S.
No. 11670, at 9, 1343 U.N.T.S. 49, 101. The Court received
Petitioner’s pleadings on Friday, September 10, 1999. As
required by 11603(e)(2)(B), Petitioner alleged that less
than one year had passed between the date of his petition
before this Court and the alleged wrongfull retention of the
child by Respondent. Petitioner also alleged that the child
was an habitual resident of Germany at all times since the
German custody order was entered in 1996. In addition,
Petitioner alleged that immediately prior to Respondent’s
wrongfull retention of the child on September 4, 1999,
Petitioner was exercising his custody rights as a parent for
the minor child, and that he had not acquiesced or consented
to the child being retained by Respondent. Both of these
facts are now conceded by Respondent.
006 After due consideration of the facts alleged in the
petition, this Court scheduled a hearing for Monday,
September 13, 1999 at 9 a.m. in order to determine whether a
stay should be entered with respect to the matter filed in
State District Court and for determination, if necessary, of
Petitioner’s petition filed pursuant to the Hague
Convention. The Clerk of Court notified counsels for
Petitioner and Respondent of the hearing set by this Court.
Prior to the opening of the hearing, Respondent filed a
response to Petitioner’s application. Respondent’s response
included a copy of the motion filed by Respondent in the
State District Court for custody and a signed copy of the
order of the State District Court judge granting temporary
custody to Respondent.
007 At the beginning of the hearing, this Court inquired
of both counsel whether it was necessary for the Court to
exercise jurisdiction in this matter since, pursuant to 42
U.S.C. 11603(a), this Court and the State Court had
concurrent jurisdiction for proceedings filed under the
Hague Convention. Respondent asserted that this Court should
abstain from exercising jurisdiction because of the State
court action. However, the Court determined that
Respondent’s Complaint in the State District Court was not a
Hague petition, but rather an action for custody of the
child. In the state court action, Respondent only made
reference to the affirmative defenses under Article 13 of
the Hague Convention in order to establish that there had
been a change of circumstances warranting a new custody
determination by the State District Court. Moreover, based
upon persuasive authority cited by Petitioner, the Court
determined that the Hague Convention only contemplates
petitions filed by custodial parents, since only custodial
parents can make the allegation that a wrongful removal or
retention has occurred. Fjeldheim v. Fjeldheim, No.
95-CV-394 (W.D.Mich. Jan. 19, 1996). FN2 Therefore, since
Petitioner chose to file a Hague petition in federal
district court, this Court determined that it had exclusive
jurisdiction over the matter for the purposes of the Hague
Convention. Accordingly, the Court ordered that the State
District Court custody proceeding and the order granting
temporary custody to Respondent be stayed pending this
Court’s determination of the issues raised by the
application filed by Petitioner pursuant to the Hague
Convention.
III. STANDARD OF REVIEW
008 The return of a child who has been removed or retained
by one parent, without the consent of the other parent, in a
country foreign to the child’s habitual residence, is proper
where the petitioner establishes that the retention or
removal is wrongful, and the respondent fails to establish
one of four affirmative defenses available under the
Convention. In order to establish that the removal or
retention is wrongful, “[the petitioner] must prove by a
preponderance of the evidence that (1) [the respondent]
removed [the child] from his ‘habitual residence,’ and (2)
[the petitioner] was exercising his parental custody rights
over [the child] at the time of removal, or that he would
have exercised his rights but for the removal, under the law
of the state of [the child’s] habitual residence.” Friedrich
I, 983 F.2d at 1400. Once the petitioner sustains this
burden of proof, the respondent must establish (1) 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; (2) 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; (3) 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; or (4) 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.
Friedrich II, 78 F.3d at 1067 (6th Cir. 1996) (citing 42
U.S.C. 11603(e)(2)(A) and (B)). In reviewing such cases,
“a court in the abducted-to nation has jurisdiction to
decide the merits of an abduction claim, but not the merits
of the underlying custody dispute.” Id., at 1063
IV. DISCUSSION
009 Foremost in the Court’s consideration in this matter
is its charge to refrain from deciding the merits of the
underlying custody dispute. This was the legal
interpretation applied on two previous occasions by the
Sixth Circuit to the very parties seeking this Court’s
judgment in the present case. The Sixth Circuit, in
Friedrich II, noted that the Hague Convention and its
implementing legislation 42 U.S.C. 11601 “… [are]
generally intended to restore the preabduction status quo
and to deter parents from crossing borders in search of a
more sympathetic court.” Friedrich II, 78 F.3d at 1064
(citing Public Notice 957, 51 Fed.Reg. 10494, 10505 (1986)).
To the extent that the Respondent’s action in State District
Court focused on the underlying custody question, this Court
was compelled to exercise jurisdiction in this matter to
properly consider the issue of wrongful retention under the
Hague Convention.
010 Applying the appropriate standard of review to the
facts of this case, the Court finds that Petitioner has
sustained the burden of proof placed upon him by 11603 of
ICARA. Specifically, the Petitioner has established that
Respondent removed the child from his habitual residence,
and that Petitioner was exercising his custodial rights as
conferred upon him by the Federal Republic of Germany at the
time of the removal. Respondent concedes the truth of those
facts. Thus, the burden falls upon Respondent to establish
the existence of one of the four affirmative defenses in
order to preclude the Court from ordering the child’s return
to the custody of the Petitioner in Germany.
011 With respect to the first two of these affirmative
defenses, Respondent must show by a preponderance of the
evidence (1) that the petition for return of the child was
commenced more than one year after the abduction and the
child is now settled in his new environment, and (2) that
Petitioner was not exercising his custody rights at the time
of retention, or had consented to or acquiesced in the
retention. Respondent concedes that the first two
affirmative defenses are not applicable in light of the
facts of this case. First, this is true because the petition
in this case was filed within five days of Respondent’s
retention of the child, well within the one-year requirement
of Article 12 of the Hague Convention. Hague Convention,
art. 12, T.I.A.S. No. 11670, at 7-8, 1343 U.N.T.S: 49, 100.
Second, it is clear in this case that the Petitioner, having
only agreed to the child’s visit with Respondent from July
31, 1999 to September 4, 1999, did not consent or acquiesce
to the retention of the child by Respondent. Therefore, the
Court finds that Respondent cannot sustain the burden as to
the first or second affirmative defense.
012 Next, this Court must consider whether Respondent has
established either the third or fourth affirmative defenses
by clear and convincing evidence: (3) that there is a grave
risk that her son Thomas’ return would result in his
exposure to physical or psychological harm or an intolerable
situation; or (4) that the return of the child would not be
permitted by the fundamental principles of the United States
relating to the protection of human rights and fundamental
freedoms. 42 U.S.C. 11603(e)(2)(B). Since the latter of
these two affirmative defenses has not been asserted by
Respondent, this Court will only consider the former.
013 Respondent alleges, in her Reply to Petition and
Motion For Return of Child To Petitioner and Attorney’s
Fees, that Thomas’ return to Germany and the custody of his
father would expose him to continued physical and verbal
abuse by his father. In support of this allegation,
Respondent states that on several occasions, “when the
Petitioner has flown into uncontrollable rages,” Petitioner
has struck Thomas “forcefully and angrily” on the back of
his head. (Resp. Rep. To Pet. and Mot. For Ret’rn of Child
at 8.) She alleges that Petitioner has allowed the child to
be burned on his arms and back, the burns appearing to be
the result of lit cigarettes. She describes the verbal abuse
as continuous criticism and castigation for alleged
misconduct. (Id., at 9.) She accuses Petitioner of being
unsympathetic to the child’s complaints of loneliness and
endless taunting by his classmates for being “American.”
(Id., at 9.) Finally, Respondent alleges that Petitioner has
been negligent with respect to attending to Thomas’ medical
maladies, including migraine headaches, low body weight, and
ruptured stomach muscles. (Id., at 10.)
014 Prior to the action presently before this Court,
Respondent attempted to prevail on a similar showing that
Thomas would face a risk of psychological harm if returned
to Petitioner. Before the Sixth Circuit, she argued that the
child would suffer psychological harm if separated from his
mother. Friedrich II, 78 F3d at 1067. In support of this
argument, she offered the testimony of a psychologist who
stated that “a whole host of anxious-type behavior” could
result, along with “other developmental or emotional
restrictions which could include nightmares [and]
anti-social behavior.” Id., at 1067. Applying the Hague
Convention to those allegations, the Friedrich II court
stated: “If we are to take the international obligations of
American courts with any degree of seriousness, the
exception to the Hague Convention for grave harm to the
child requires far more than the evidence that Mrs.
Friedrich provides.” Id., at 1067.
015 With respect to Respondent’s allegations of
psychological harm presented in the present action, this
Court reaches a similar conclusion as did the Sixth Circuit.
The only new accusations concern Petitioner’s alleged
criticizing and lack of empathy for Thomas’ loneliness.
Although it is beyond the purview of this Court to decide
whether the alleged existence of these conditions is in the
child’s best interests, the Court is required to decide
whether they constitute an intolerable situation. In making
this decision, the Court is persuaded by the standard
articulated by the Department of State in a Public Notice of
the Federal Register. Public Notice 957, 51 Fed.Reg. 10494
(1986). The agency noted that Article 13(b) “was not
intended to be used by defendants as a vehicle to litigate
(or relitigate) the child’s best interests.
016 The person opposing the child’s return must show that
the risk to the child is grave, not merely serious.” Id., at
10510. The Court therefore finds that the behavior alleged
here, even if taken to be true, would not constitute an
intolerable situation as contemplated by the affirmative
defenses established in the Hague Convention.
017 With respect to the physical harm to the child, this
Court conducted an in camera hearing to ascertain the nature
of the alleged abuse. The child confirmed reports that his
father struck him on the back of the head on a few occasions
to prompt him in the completion of his homework. The Court
makes no judgment call as to the appropriateness of such
disciplinary action. It was important to the Court, however,
that even on such occasions of discipline, there was not an
outright and uncontrollable rage as Respondent has alleged.
Instead, judging from the accounts given by the child, it
appears that his father cares for him and goes about their
scheduled recreational activities even after occasions of
disciplinary action. It was also significant to the Court
that some of the allegations of abuse made by the Respondent
were totally unsupported by the evidence. There were no
signs that Petitioner allowed the child to suffer cigarette
burns, or that Petitioner failed to secure medical treatment
for the child’s illnesses. The Court’s objective
consideration of all the evidence presented, including its
in camera interview with the minor child, failed to reveal
the existence of an intolerable situation or a grave risk of
psychological or physical harm facing the child if he were
to return to the Petitioner. The Court, therefore, finds
that Respondent has failed to show by clear and convincing
evidence that the child faces psychological or physical harm
upon his return to Petitioner’s custody.
018 The final matter to be considered by the Court is the
weight, if any, the Court should give to the child’s desire
to remain in the United States with Respondent rather than
return to Germany with Petitioner. Respondent argues that
the child’s wishes constitute sufficient grounds for not
returning him to his father’s custody. Article 13 of the
Hague Convention states that “the judicial or administrative
authority may also refuse to return the child if it finds
that the child objects to being returned and has attained an
age and degree of maturity in which it is appropriate to
take account of its views.” Hague Convention, art. 13,
T.I.A.S. No. 11670, at 8, 1343 U.N.T.S. 49, 101. The Court
was impressed with the ability of the minor child to respond
to questions both from the Court and the attorneys during
the in camera interview. However, the Court must also take
into account that the child is only nine years old, and has
undergone a tremendous jostling about between his parents
over the course of his young life. One court, upon
examination of facts similar to these, decided that the
child objection defense of Article 13 should be narrowly
construed. In Re Application of Nicholson v. Nicholson, No.
97-1273-JTM, 1997 WL 446432 (D.Kan.July 7, 1997). In Re
Nicholson cites evidence that there is a “demonstrated
disinclination” on the part of courts to defer to a child’s
objection as a basis for denying a Hague petition. Id. at
*3. (In at least one case, Tahan v. Duquette, 259 N.J.Super.
328, 613 A.2d 486 (1992), a court ruled that the child
objection offense does not apply to nine-year-olds.)
019 In the present case, it appears from the Court’s in
camera hearing that Thomas was prepared by Respondent and
her attorney to give specific answers when questioned about
whether he wanted to remain with his mother, or return to
Germany with his father. Though Respondent may not have
engaged in outright coaching of the child, the influence of
the mother and other family members, as acknowledged by the
child, cannot be overlooked by this Court. Furthermore, the
Court finds that the child, at age nine, has not attained
the “age or degree of maturity” at which it is appropriate
for the Court to take account of his views and defer to his
preference for living with his mother. Hague Convention,
art. 13, T.I.A.S. No. 11670, at 8, 1343 U.N.T.S. 49, 101.
Even taking the minor child’s views into account, the Court
finds that his preference for living with his mother is not
so much an objection to being returned to live with his
father as it is a desire to continue his summer vacation
with his mother. This Court, like other courts that have
considered the child objection defense, chooses not to rest
its decision on such a desire.
V. CONCLUSION
020 For the reasons enumerated herein, the Court finds
that Respondent has failed to sustain her burden of proof
with respect to the four affirmative defenses of the Hague
Convention. It is therefore required by Article 12 of the
Hague Convention that Thomas David Friedrich be returned
forthwith to the Republic of Germany with his father,
Emanuel Friedrich. Hague Convention, art. 12, T.I.A.S. No.
11670, at 7-8, 1343 U.N.T.S. 49, 100.
021 The Court notes that if Respondent has legitimate
concerns about the well-being of the child, she can address
those concerns with the German Family Court which has
jurisdiction over the underlying custody issues in this
matter. The Court finds that there is no indication that the
German court is incapable or unwilling to decide any
disputes about the adequate care of the child.
022 IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that
the minor child, Thomas David Friedrich, shall be returned
forthwith to Petitioner Emanuel Friedrich’s custody in the
Federal Republic of Germany. Petitioner’s Counsel has filed
an accompanying motion for attorney’s fees and expenses
incurred in traveling to the United States to litigate this
matter. The Court will consider this request after
Respondent’s counsel has had a reasonable period of time to
respond to the motion. It is further ORDERED that
Respondent’s counsel shall respond to Petitioner’s request
for attorney’s’ fees on or before September 23, 1999. FN3
This the 26th day of November, 1999
/s/ James Beaty
______________________________
United States District Judge
Footnotes
———————
1. At the time of the child’s birth, Jeana Michelle
Thompson was known as Jeana Michelle Friedrich. She
has since remarried, and is now Jeana Michelle
Thompson.
2. In Fjeldheim, the United States District Court for the
Western District of Michigan held that a state court
had not properly exercised jurisdiction in entering a
judgment under the Hague Convention in favor of the
respondent since the action had been brought by the
respondent, the same party accused of wrongfully
retaining the child in question. The district court
reasoned that since the Hague Convention and ICARA are
worded in such a way as to address remedies for the
“petitioner” or “applicant,” and the spirit of the law
is to protect the parent who has been wrongfully
deprived of custody of a child, then it follows that
the petitioner must be the aggrieved custodial parent.
Accordingly, the custodial parent was the only party
who could appropriately file a petition pursuant to
the Hague Convention, and could choose state or
federal court as a forum.
3.0 The Court rendered its finding of fact and conclusion
of law in open court on September 13, 1999. The
present written Order and Judgment and Memorandum
Opinion are being added for the purpose of completing
the Court’s record of this matter.