GERMANY – WATKINS – 2001 (Return Ordered) (Habitual Residence)WATKINS v WATKINS. Both parents are serving in the U.S. Military. The mother takes the child to Germany while she fulfills her military obligation. She refuses to return the child. The father, stationed in Israel applies for the child’s return to Israel. After determining that the habitual residence of the child is Israel the court ordered the return. The court also ordered the bailiff to use force if necessary to enforce his order.
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Watkins vs. Watkins (FRG 2001)District Court of Zweibruecken
Docket Number 1 F 3709/00
6 International Abduction [FRG 2001]
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Certified translation of a German court order in the matter
of Watkins vs. Watkins
(stationery of the district court of Zweibruecken)
(docket no) 1 F 3709/00
ORDER
In the family mater of:
Watkins, Kemper,
residing at 27 Levi Eshkok, Herzliya, Israel
Petitioner
Represented by attorney at law Donald J. Cramer.
Vs.
Watkins, Marcia,
residing at Zur Melkerei 20,66849 Landstuhl, with Lisa
Barreto
Respondent
For physical custody of the child
001 The District Court, Family Court of Zweibruecken by
Judge at the district court Marscheck-Schaefer has ordered
on 25 January 2001 as follows:
002 1. It is ordered that physical custody of the child
Hollis Watkins, born 12 June 1999 is transferred to the
Petitioner in order to immediately return the child to
Israel.
003 The Petitioner (WMH Note: Respondent?) or every other
person who has the child in his/her care is required to hand
over the mentioned child to the Petitioner or to a person
designated by him for the mentioned purpose.
004 2. The court bailiff is ordered to take the child
from the Respondent and to hand over the child to the
Petitioner or to a person designated by him right there and
when the child is taken from the Respondent.
005 3. The court empowers the bailiff to use force to
enforce this order, in particular to break any resistance by
the Respondent, to search her premises and to use the
assistance of the police. However there is no force to be
used against the child.
006 4. The Respondent who is required to turn over the
child is warned that in case the child cannot be found she
can be required to attend a court hearing designed to
require her to file an affidavit concerning the whereabouts
of the child, that she can be brought to court for that
purpose and that the court may commit her to prison for up
to 6 months for that purpose.
007 5. Costs of the proceedings have to be paid by the
Respondent.
008 6. The Petitioner’s request to remove the order of
the family court of Zweibruecken of 21 December 2000 is
denied.
Reasons:
009 The parties are married to each other and are serving
in the US Forces, the Petitioner in active duty, the
Respondent as a major of the reserves. There is one child
from their marriage, Hollis Watkins, born 12 June 1999.
Since 1997 the parties were stationed in Germany.
010 According to their joint intentions for their life the
Petitioner was transferred to the US Embassy in Israel. The
Respondent and the child from their marriage were also
stationed in Israel as dependents where they had lived since
the beginning of June 2000 in a joint apartment.
011 The Respondent is as a major of the reserves required
to do two months of military duty within every calendar
year, this can be served in pieces. Because of a military
order she went to Ramstein Air Base and served there from 8
October 2000 until 15 October 2000 and from 30 October 2000
until 22 November 2000. Her departure from Israel occurred
with consent by the Petitioner as well that she took the
child with her.
012 Already in November 2000 she informed the Petitioner
of her intentions to separate and to divorce him. He took a
few days leave and went to Ramstein where marriage
counseling was done with a chaplain colonel which failed.
Meanwhile the Respondent had filed a petition to allow her
and their joint son to return early to the States since she
wished not to return to Israel. Such a permission is
necessary since the Respondent as member of the Armed Forces
must not leave the place where he/she is stationed early,
before the end of the tour of duty. This is detailed in the
ERP (Early Return Program) for which the Respondent applied.
013 With a petition of 18 December 2000, filed with the
court on 21 December 2000, the Petitioner asks for the
return of the child Hollis to him to Israel because, as he
alleges, the Respondent wrongfully withholds the child. He
alleges that it was jointly agreed that after serving her
reserve duty she would return to him to Israel and that she
would live there with him until the end of his 3-year tour
of duty. He says she broke this agreement by informing him
that after a short stay in Italy she would not return to him
but rather go the States. Meanwhile, he says, he does not
insist that the Respondent returns to Israel, but however
that it is urgently necessary that the child be returned to
his habitual residence.
014 He states that in no case is there a military order
for the Respondent to return stateside. Rather this is the
opening of a possibility of an early return and there are
orders to attend a school which, however, only starts in
August 2001. This however does not, he says, change anything
regarding the civil law obligation to return the child.
015 The Respondent opposes a return of the child. She
maintains that there is no wrongful withholding of the
child. She says that Hollis did not have his habitual:
residence in Israel since the parties had been living there
only since June of 2000. She says that even if the parties
jointly – at least factually if not expressly – had jointly
assumed before her trip to Germany that she would return
with the child to Israel after the end of her service duties
there, this agreement would be obsolete by now because now
she has decided to file for divorce in Texas. She says that
such a petition for divorce has been filed on 17 January
2001 with the court of jurisdiction.
016 As regards further details reference is made to the
briefs exchanged between the parties and their affidavits.
017 The petition of the Petitioner for return of the child
Hollis is granted.
018 Such a claim for return is based on Art. 12 subs.1 of
the Hague Convention on the Civil Law Aspects of
International Child Abduction.
019 The legal prerequisites for that are met. The child
Hollis Watkins is being wrongfully retained by the
Respondent within the meaning of Art. 3 of the Hague
Convention, by not returning him to Israel.
020 As regards this the court finds that at the time of
the departure of the Respondent the child had his habitual
residence in Israel. In order to determine the habitual
residence a number of requirements have to be met with the
courts requiring a certain time element. In this case
however the parties had been residing only for 4 months in
Israel. It has to be taken into account that the parties had
been ordered to be stationed there, that they had their own
home there and that therefore the centre of all their
activities was in Israel.
021 The court finds that the parties had agreed before the
departure of the Respondent that she would return with the
child to Israel after the end of her military service
duties. The behavior of the Respondent which is inconsistent
with this agreement violates the joint custodial rights
according to which both parents jointly determine the
whereabouts of the child. Such a joint custody
determination is contained in Sections 14, 15 of the Israeli
law, Israel is since 1995 a member state of the Hague
Convention.
022 The Respondent herself alleges that it was the
original plan of the parties that she should return after
her reserve duty services to Israel. Her allegation that
this agreement would be now obsolete is not suitable to
remove the wrongfulness of her behavior.
023 In contrast her behavior is absolutely one sided and
it constitutes the termination of an agreement against the
wishes of the Petitioner and father of the child. It may be
so that she is free not to continue the marriage with the
Petitioner. It may be so that for that purpose she has
already filed for divorce in Texas/USA. By virtue of joint
custody she is not entitled to bring the child stateside
against the wishes of the Petitioner. It is to the contrary
the reason and purpose of the Hague Convention to provide in
cases like this one the immediate return of the child to the
place of his habitual residence.
024 The allegation by the Respondent that she has been
ordered militarily back to the States is not correct in this
form. Her return has only been ordered because the
Respondent has applied for such an order arguing that she
does not wish to return to Israel. She is free to make use
of the early return program. She is not free to take the
child with her since the Petitioner does not agree to this.
025 She cannot rely on her allegation that the Petitioner
had never indicated his wish of a return to Israel, at least
of the child. The opposite is true as manifested by the
filing of the return request of 18 December 2000.
026 Also the fact that she has meanwhile filed with a
court in Texas is no block in the way of an order according
to the Hague Convention.
027 Reasons which would bar the return within the meaning
of Art. 13 are not to be found. In particular the
Respondent needs to be alerted to the fact that the violent
disturbances in the Near East occur not only since October
2000 but already at a point in time when it was in
accordance with their life plan to live in Israel.
028 Therefor the return of the child had to be ordered.
029 An order for immediate effectiveness within the
meaning of Section 8, subsection 1, 2d sentence of the
Custody Rights Treaty the court found not warranted here
because the interests of the Petitioner are sufficiently
safeguarded by the order of 21 December 2000 and because the
Respondent needs to have the opportunity to protect her
interests by filing an appeal. Therefor the order remains
in force.
030 The order for costs is based on sect. 13 a statute for
Civil Matters in connectIon with Art. 26 subsection 4 of the
Hague Convention.
/s/ Marscheck-Schaefer
Judge at the District Court
Certified copy
/s/ (signature illegible)
Court Clerk
(rubber stamp for the district court of Zweibruecken)
As licensed translator for the English language for the
State of Bavaria I hereby confirm that the above is a
complete and correct translation of the order of the
district court of Zweibruecken of 25 January 2001 in the
matter of Watkins vs. Watkins
Muenchen, 12 February 01 Dr. Donald J. Cramer, Muenchen
WMH Note: This document was furnished by the Law Office of
Edwin Freedman, Tel-Aviv, Israel who has advised this office
that the matter, as of 26 Feb 2001, was on appeal in the
FRG.
Comment by Wm. M. Hilton, CFLS
The order covers the following issues:
1) Determination of the Habitual Residence (H/R) of the
child.
2) The effect of a unilateral decision affecting the
child by one of the parents.
3) The effect of political unrest in Israel as it would
affect an Art. 13(b) defense.
4) The specific steps taken by the FRG Court as to the
enforcement of its order.
Habitual Residence
The FRG Court found that the H/R of the child was in Israel,
a necessary condition for the operation of the The
Convention on the Civil Aspects of International Child
Abduction, done at The Hague on 25 Oct 1980 (The Convention)
The FRG Court found that, at the time of the retention in
the FRG by the Respondent, Israel had become the H/R of the
child despite the fact that the child had previously lived
in the FRG from birth to Jun 2000 or about one (1) year and
had then lived in Israel from Jun 2000 to Oct 2000.
The court took into account that the parties had been
ordered to be stationed in Israel, that they had their own
home in Israel and that therefore the center of family’s
activities was in Israel. In short it was the mutual intent
of both parties that they permanently leave the former H/R
in the FRG and take up a new H/R in Israel.
Under such circumstances it is common ground that the FRG
lost its status as the H/R the day the family left the FRG
for Isreal and that, since there was mutual intent, Isreal
would become the new H/R within a very short period of time,
arguably within a month or less.
Unilateral Decision of Respondent
The Respondent argued that even if there was a joint
decision that the child would be returned to Israel from the
FRG at the end of her temporary stay in the FRG, that
decision was negated by her later statement that she would
not return the child to Israel.
The FRG court, quite properly, held that a specific purpose
of The Convention is to prevent the unilateral removal
and/or retention of the child and found Respondent’s
argument without merit.
Art. 13(b) Defense
The Respondent seems to have suggested that, because of the
political unrest in Israel, it would be unsafe for the child
to return to Israel.
While the FRG court acknowledged that such political unrest
did exist, it existed when the family made its original move
from the FRG to Israel and accordingly it would be assumed
that the parties did not think that the political unrest in
Israel did not per se reach the level of a proper Art. 13(b)
defense.
In short it would appear as if the FRG court held that the
parents had voluntarily assumed the risk of living in Israel
as it was in Jun 2000.
For a similar comment on this point see Freier v Freier
(E.D. Mich. 1996) 969 F.Supp. 436, at Paragraph 032. [The
Court does not find sufficient evidence in this record for
Israel to be the “zone of war” contemplated by the Sixth
Circuit or the Hague Convention.]
Enforcement of the FRG Order
The order of the FRG court is somewhat unusual in that it
has specific and concrete steps for the return of the child
to Israel.
In this order the Respondent is required to turn the child
over to the Petitioner forthwith, the court bailiff is
directed to take the child from the Respondent and turn the
child over to the Petitioner and Respondent is advised that
failure to do so could result in her imprisonment.
In many cases, particularly in Europe, the order of the
court that grants a Petition for Return cannot be executed
upon its face but instead relies upon a specific second
order that enforces each and every one of the terms of the
order for return.
This procedure clearly causes delay in that at least two
applications are required (Petition for Return and Executory
Order). In some cases both orders are appealed in turn
causing further delay.
The language of this order is similar to the language of the
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), at Section 316:
At the request of a [prosecutor or other appropriate public
official] acting under Section 315, a [law enforcement
officer] may take any lawful action reasonably necessary to
locate a child or a party and assist [a prosecutor or
appropriate public official] with responsibilities under
Section 315.