GERMANY – 1992

GERMANY – 1992 (1992) (court ruled it did not have jurisdiction) (Child abuse, jurisdiction) L.H. v Youth Welfare Office of Wiesbaden, R.B. and A.B. The child, which is the focus of this case is in Germany in the protection of the Youth Welfare Office. The mother seeks an order of this court awarding her sole custody of her infant daughter. The court finds that they do not have jurisdiction and that all matters should be before the German courts.

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L. H.
v.

Youth Welfare Office of Wiesbaden, Germany, R. B. and A. B.

No. V-3651-90, 12 Mar 1992

Family Court of New York, Suffolk County

150 Misc.2d 490 [568 N.Y.S.2d 852]

COUNSEL:

Stephen P. Silberling, Esq., Attorney for Petitioner, Hauppauge,
New York.

Patricia Gillard, Esq., Attorney for Respondents, Bohemia, New
York.

Christine Grobe, Esq., Law Guardian, Stony Brook, New York.

JUDGES: David Freundlich, J.F.C.

MEMORANDUM

DAVID FREUNDLICH, Judge

In this proceeding commenced pursuant to F.C.A. Sec. 651 and
D.R.L. Sec. 75 et. seq. (U.C.C.J.A.), the petitioner, L. H. seeks
an order of this court awarding her the sole and exclusive custody
of her infant daughter, L. M., d.o.b. 10-19-88, and, further,
staying all proceedings now pending in the Republic of Germany
relative to the custody, guardianship and/or adoption of the said
infant. The instant matter is before this court pursuant to Order
to Show Cause entered by the undersigned on 12-4-90, with
enumerated ex parte relief contained therein.

The sole issue before the court at this juncture is whether
the court has jurisdiction over the matter pursuant to the
applicable provisions of the Uniform Child Custody Jurisdiction
Act, to wit, D.R.L. Sec. 75 and Sec. 75-w [9 ULA 23]
(international application). The court’s jurisdiction, although
initially determined ex parte in the Order to Show Cause dated
12-4-90 (albeit temporarily), has been challenged by the
respondents R. B. and A. B. by way of cross-motion dated 1-23-91.
The respondents, who presently have custody of the infant in the
Republic of Germany, and who are parties to a custody proceeding
presently pending in Germany, allege that the New York court lacks
jurisdiction pursuant to the provisions of the U.C.C.J.A.,
specifically D.R.L. Sec. 75-d [9 ULA 3]. In the alternative, the
respondents aver that New York is an “inconvenient forum” under
D.R.L. Sec. 75-h [9 ULA 7], and, to that end, a dismissal of this
proceeding is sought in favor of the continuance of the present
litigation in the Republic of Germany.

The relevant jurisdictional facts are not disputed in the
moving papers.

In addition to the papers, the court has also engaged in a
lengthy jurisdictional discussion with the judge presiding over
the proceedings in Germany, to wit, Hon. Helga Rusvay, which
discussion was had via overseas telephone on February 4, 1991, as
arranged and translated by the appointed Law Guardian, Christine
Grobe, Esq., who is fluent in the German language. Incidental to
said discussion, a written synopsis of the prior and pending
German proceedings, as well as a jurisdictional opinion, was faxed
to the undersigned (via Ms. Grobe) by Judge Helga Rusvay on
2-6-91. Based upon the foregoing papers and communications, and in
consideration of the arguments of counsel made on the record on
2-8-91, the court makes the following jurisdiction findings and
conclusions in this matter.

The subject infant, L. M. H. was born on 10-19-88 in Suffolk
County, New York. Her parents, L. H. and V. H. who were then
married, had two other children at the time, neither of whom are
involved in this proceeding. Mr. V. H. a member of the U.S. Armed
Forces, was ordered to a U.S. military base in Wiesbaden, Germany
sometime in April 1989, whereupon the entire H. family relocated
to military housing in that country.

Several months after their arrival in German, the subject
infant (L,) then nine (9) months of age, was severely and brutally
beaten while in the Hibbert home. On 7-10-89 (five days after the
child was brought to a U.S. military hospital in comatose
condition), the Youth Welfare Office of Wiesbaden, Germany,
charged the H.’s with criminal child abuse and otherwise sought,
and obtained, an emergency removal order for the three H. children
incidental to civil guardianship proceedings commenced by the
Youth Welfare Office at the same time. Upon placement of the
children with the Juvenile Department of Wiesbaden, the children
were transferred to foster care in Germany. It appears that he
placement of the children was consented to by the H.’s executing
written guardianship instruments in favor of the U.S. Army Family
Advocacy Program on 7-6-89; however, it further appears that the
German court removal order superceded such written consents.
Pursuant to said removal orders, L. ultimately was placed with the
respondents, R. and A. B. who are U.S. citizens residing in the
Republic of Germany.

Thus, as of July 10, 1989, there were criminal abuse actions
instituted against the H.’s and there were civil “custody”
proceedings commenced against the H.’s the latter being filed in
the Wiesbaden Guardianship Court, with Judge Helga Rusvay assigned
thereto. All three H. children were placed in foster care under
the temporary guardianship of the Youth Welfare Office of
Wiesbaden.

The criminal charges against L. H. in Germany were ultimately
dismissed, albeit for reasons not apparent on this record.
Notwithstanding the disposition of the criminal matters, the civil
guardianship proceedings against Mrs. H. continued and were
ultimately scheduled for final hearing on May 10, 1990.

Prior to the commencement of the final guardianship hearing,
and presumably after the disposition of the criminal case, two the
H. children were released from foster care and placed with Mrs.
H.’s mother, M. N. On 3-6-90, Mrs. N. was appointed guardian for
the two children, and she returned to New York, leaving Mrs. H.
and the infant, L. in Wiesbaden. It appears that the two children
were released in this manner due to the fact that there was no
significant evidence of abuse of them by Mr. or Mrs. H.

The “guardianship” hearing was then conducted before Judge
Rusvay on 5-29-90. Mrs. H. who was represented by counsel,
participated in said hearing, as did the foster parents, R. and A.
B.
On 6-1-90, Judge Rusvay issued a memorandum decision and
order in the aforesaid proceeding. After reciting the relevant
history of the case, Judge Rusvay found, among other things, that
Mrs. H. neglected her parental duty towards her daughter on or
about 7-5-89, when the child sustained “life indangering
injuries”. The court specifically found that

the decisive factor is that the mother either committed
the offense or did not do anything to prevent it, and
does not explain why she was unable to prevent her
child from being injured.

The court thereupon continued its prior order of 7-10-89 and
directed that L.’s custody remain with the Youth Welfare Office,
with foster placement with the B.’s subject to ongoing review and
monitoring of Mrs. H.

It is indeed significant that in addition to the foregoing,
the Wiesbaden Guardianship Court specifically determined that it
had jurisdiction over the question of L.’s custody under the
German Civil Code, on the basis that Germany was the child’s “main
residence”. The court also noted that

The deciding court does not have exclusive
jurisdiction, since jurisdiction also lies with New
York, the home state. This however, does not preclude
the jurisdiction of the deciding court. FN1

It appears that after the entry of the 6-1-90 decision and
order, Mrs. H. appealed to a higher German tribunal, which appeal
was denied on 8-24-90. Thereafter, by written application dated
7-5-90 and filed in pro-se fashion, Mrs. H. notified the German
court that she was returning to New York and that she was again
requesting the return of her child. Apparently, a more formal
application in this regard was made on her behalf by Mrs. H.’s
German attorney on 9-6-90. That application was accepted by the
Court, and, based upon communications had with German, the
application is open and pending.

This proceeding was commenced in New York in December 1990,
after Mrs. H. caused Suffolk County D.S.S. home studies to be
forwarded to Germany, which were rejected by the Wiesbaden court.

In her faxed statement of 2-6-91, Judge Rusvay stated:

I am of the opinion that I have continuous jurisdiction
over the matter since 7-10-89.
* * * * * * * * * * * * * *

In support of her claim that this court has jurisdiction over
the issue of L.’s custody, Mrs. H. contends that New York is the
child’s “home state” within the meaning of D.R.L. Sec. 75-d(1)(a)
[9 ULA 3(a)(1)], inasmuch as the child was out of the country only
temporarily due to parental military obligations. Further, Mrs. H.
avers that jurisdiction may also be founded upon the “significant
connection” test set forth in D.R.L. Sec. 75-d(1)(b) [9 ULA
(3)(a)(2)]. On the other hand, the respondents suggest that the
opposite is the case, that is, that Germany is the child’s home
“state” and that Germany has the more significant connection with
the subject child. Respondents also point out that a proceeding of
and concerning the custody of the child is (and has been) pending
in Germany, and that two custody determinations were made by the
German court prior to the commencement of the proceeding in this
court.

Initially, this court notes that although D.R.L. Sec. 75-w [9
ULA 23] provides that the U.C.C.J.A. shall have “international
application”, there is no international treaty or comparable pact
among the nations of the western world that would mandate
application of the U.C.C.J.A. by the German court in this matter.
Indeed, the facts and circumstances herein do not give rise to the
administration of the Convention on the Civil Aspects of
International Child Abduction, commonly referred to as the Hague
Convention, 42 U.S.C. Sec. 11601 et. seq. There being no wrongful
removal or retention of a child (Hague Convention, Article 3), FN
2the Hague Treaty has no bearing whatsoever in this case. See,
e.g. Sheikh v. Cahill, 145 Misc. 2d 171 (Supreme Court, Kings
County, 1989). Thus, this court is to act, or not act, as the
case may be, solely upon the strength of its own statutes and
rules, albeit with the stark recognition that the tribunal in the
Republic of Germany is under no duty to recognize any declaration
that may be made herein.

However, this court is under a duty to apply the provisions
of the U.C.C.J.A. in this proceeding, just as it would were this a
jurisdictional conflict between New York and Florida, or any other
“state,” as that term is defined in D.R.L. Sec. 75-c(10). As
noted, supra, the U.C.C.J.A. is to be extended to the
international area, as per D.R.L. Sec. 75-w [9ULA 23], meaning
that the actions of a foreign tribunal are entitled to deference,
if its regard for due process parallels that of the courts of this
state, and if such deference would further the policies of the
U.C.C.J.A. Lotte V. v. Leo V., 128 Misc. 2d 896 (Family Court, NY
County, 1985)

In this regard, the court notes that the proceedings against
Mrs. H. in Germany appear to have been fairly and properly
prosecuted, with all due regard to the right of notice, the right
to counsel and the right to be heard and/or defend the claims
made. Further, this court has been given all relevant information
by the judge presiding in Wiesbaden, and has otherwise engaged in
intelligent and sound communication with the foreign judge, as
would normally be welcomed under D.R.L. Sec. 75-g [9 ULA 6]. Thus,
given the propriety of the proceedings in Germany, and in light of
the spirit of cooperation extended by the Wiesbaden judge, court
firmly believes that the provisions of the U.C.C.J.A. must be
strictly applied to the jurisdictional question posed by the
parties herein. C.F. Klein v. Klein, 141 Misc. 2d 174 (Supreme
Court, Kings County, 1988).

Resolution of the jurisdictional issue before the court
requires an examination of two predicates in the U.C.C.J.A. which
are directly controlling in this proceeding. The first, and
paramount issue, is whether any of the jurisdictional grounds set
fourth in D.R.L. Sec. 75-d [9 ULA 3] may be satisfied by the facts
herein. The second, and equally important issue is whether the
jurisdiction of Germany is lacking, or no longer effective,
thereby permitting this court to modify the existing Germany
orders within the meaning of D.R.L.) 75-o [9 ULA 14] and 28 U.S.C.
Sec. 1738-A (P.K.P.A.). FN3 Indeed, in this regard, Mrs. H. is
specifically asking that this court modify the order entered in
Wiesbaden on 6-1-90 so as to return custody of L. to her. In order
to entertain such a request, this court must find that Germany no
longer has jurisdiction over the matter and that New York does
have jurisdiction. Perkins v. Perkins, 134 AD 2d 416 (2d Dept.
1987); Tenenbaum v. Sprecher, 133 AD 2d 371 (2d Dept. 1987).

Base upon the undisputed facts herein, the court is convinced
that New York does not have jurisdiction to make a custody
determination and/or to modify the Germany custody orders within
the meaning of D.R.L. Sec. 75-d [9 ULA 3].

As of December 1990, when this action was commenced, L. had
been residing continuously and exclusively in Germany for in
excess of twenty (20) months. Her only contact with New York was
during the first months of her life, having been born here in
October 1988 and having lived here with her parents until April
1989, whereupon the entire family relocated to Germany. Mrs. H.
herself was continuously present in Germany from April 1989 until
July 1990.

Given that L. has been residing in Germany for twenty (20)
continuous months prior to the commencement of this proceeding,
and in view of her present residence in Germany, it is abundantly
clear that New York is not the child’s “home state” within the
meaning of D.R.L. Sec. 75-d(1) [9 ULA 3(a)(1)]. The fact that L.
was, and is, in Germany as a result of parental military
obligations is of no consequence, nor can “home state”
jurisdiction be found on the novel theory that L. was only
temporarily absent from the state, as if L. were on a brief
visitation sojourn. See, e.g. Patricia R. v. Andrew W., 121 Misc.
2d 103 (Family Court, Kings County, NY 1983).

Likewise, the court cannot find that L. has a “significant
connection” with New York, nor can it be fairly said that there is
substantial evidence in New York concerning the child’s care,
protection, training and development. D.R.L. Sec. 75-d(1)(b) [9
ULA 3(a)(2)]. To the contrary, the child is fully and completely
connected to the Republic of Germany, and, based upon the events
and proceedings in Germany, it is clear that most, if not all of
the evidence of the child’s “best interests” remains in the
foreign forum. FN4

In light of the foregoing, and considering that the remaining
jurisdictional predicates under D.R.L. Sec. 75-d [9 ULA 3] have no
application in this case, the court is satisfied that it lacks
jurisdiction under the U.C.C.J.A.

It should be noted that even if New York were to have
jurisdiction under D.R.L. Sec. 75-d(1) [9 ULA 3(a)(1)], it could
not exercise that jurisdiction and modify the orders of the
Wiesbaden Guardianship Court, due to the fact that the custody
jurisdiction of Germany has already attached and is otherwise
continuing. In other words, Germany has not lost, relinquished or
divested itself of its jurisdiction over the current proceeding
involving L. and her mother. The continuance of that jurisdiction
absolutely precludes this court form modifying, changing or alter
in the orders that already have been entered in the foreign court,
which orders have ostensibly been made in proceedings that do not
appear to offend either the policies of the U.C.C.J.A. or the due
process notions of our federal and state constitutions. Thus, this
court is prevented from acting under both the U.C.C.J.A. (D.R.L.
Sec. 75-o [9 ULA 14]) and the P.K.P.A. (28 U.S.C. Sec. 1738-A),
and under applicable case law. Perkins v. Perkins, supra.

Although not essential or germane to the issue of
jurisdiction herein, the court should point out that the Wiesbaden
Court has indicated in no uncertain terms that it believes that it
has full and continuing jurisdiction over the matter of L.’s
custody. Communication was properly had between the courts, with
simultaneous proceedings pending both forums. The applicable law
(D.R.L. Sec. 75-g [9 ULA 6]) requires that there be a judicial
exchange of thoughts and positions, to the end that the litigation
take place in the more appropriate forum. Again, considering the
long history of the Wiesbaden proceeding, and in light of the
substantial connection between the parties, the child, and the
Republic of Germany, this court is constrained to defer to the
jurisdictional position taken by Judge Rusvay in this matter.

The court recognizes that its ruling in this proceeding may
result in hardship to Mrs. H. and that she will be compelled to
litigate this matter in a foreign country that has not been
completely sympathetic to her plight. The court also understands
that L. and her mother are U.S. citizens who did not purposefully
invoke the jurisdiction of the foreign court, nor did they foresee
that their presence in Germany would lead to such an emotional and
frustrating dispute with German authorities. However, the Court
cannot assume jurisdiction on the basis of protecting U.S.
citizens, or upon feelings of pity and sympathy, or upon
considerations or principles not otherwise addressed in the law.
As stated, the court is duty bound to act, or not act, solely upon
the statutory framework which it must adhere to, to wit, the
U.C.C.J.A. and the P.K.P.A. The application of those laws herein
compels the court to reject jurisdiction over the matter of the
custody of L. M. H. FN5

Based upon the foregoing, the instant proceeding is
dismissed, without prejudice to further actions and proceedings
now pending, or to be filed in the future, in the court of
Germany. This determination is limited to the question of the
power of this court to act, there being no finding or inference
that Mrs. H. should, or should not, have custody of her infant
daughter.

——————–
1. WMH Note: The German court, like most courts outside of the
United States (and the U.S. prior to the enactment of the
UCCJA), probably exercised CCSMJ under the parens patriae
rule. Their law, unlike the UCCJA, would permit more than
one jurisdiction to have CCSMJ.

2. WMH Note: The full text of Article 3 is: “The removal or
the retention of a child is to be considered wrongful where–
(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 an agreement having legal effect under the law of that
State.”

3. WMH Note: The court is in error here citing the PKPA. The
PKPA, by its own terms, does not apply to a foreign country.

4. WMH Note: This is the proper focus of the case (and for that
matter The Convention): The evidence available to the court
that is relevant to the issue presented exists only in the
FRG. It would be an abuse of discretion for the court to
assume jurisdiction on this basis.

5. WMH Note: There is another reason: CCSMJ that is based on
convenience, if at all, is based on the convenience of the
child and not the parents.