Barlow v BarlowCanton of Solothurn, Switzerland
Subject: Transport of Minors
I
1. The Parties married on 03 Mar 1988 and had 3 sons, in
1988, 1989, 1990. Their last shared home was in Kernesville, NC.
In 1991 the parties decided to leave the US and take up residence
in Switzerland. After winding up their household affairs, the
wife moved to Switzerland with the three children on 10 May 1991
and filed for divorce on 13 May 1991.
The husband, who was supposed to have arrived in Switzerland
one week later, therefore stayed in the US and filed a petition
for a court-ordered return of minors pursuant to the Hague
Agreement of 25 Oct 1980 concerning the civil law aspects of
international kidnapping. FN1 He requested that his wife be
legally required to return the children to their previous usual
place of residence FN2 in Kernesville or to surrender them to
him or to bring them back to Kernesville with a time period to be
set by a court and that she should be subject to legal penalties
for failure to comply. The wife opposed the petition on the
ground that her husband was violent toward her, had threatened to
kill her, had agreed to transport the children to Switzerland FN
3and that the children were in danger of physical and emotional
injury if they were returned based on the husband’s personal
situation at that time. FN4
2. The president of the Olten-Gosgen court denied the
husband’s petition of 08 Jul 1991. In his deliberations he
assumed that transporting the children to Switzerland was illegal
FN5 within the meaning of Article 3 of The Convention and that
the husband had not given his approval. FN6 However, he
nonetheless denied the petition on the grounds that returning the
children presented danger of physical and emotional injury. FN7
According to the introduction and last sentence of Art. 3,
paragraph 1, part b of The Convention FN8 , the welfare of the
children should be the only consideration. FN9 This would not
and is less likely to be assured by returning the children to the
US, because the father did not maintain his own household, worked
during the day and would have to leave his children in a nursery.
FN10
The father appealed this decision through his representative
on 26 Jul 1991. He requested reversal of the court’s decision
and recognition of his petition. He also requested waiver of
legal fees. Waiver of the husband’s legal fees was granted on 10
Aug 1991, effective 12 Aug 1991.
On 05 Sep 1991 the wife petitioned for denial of the appeal.
3. To the extent possible we have relied on the court’s
deliberation to determine the parties’ positions; otherwise we
have relied on file records.
II
1(a) The Convention concerning civil law aspects of
international kidnapping (hereinafter “The Convention”) is to be
applied to children who lived in a signatory country FN11
immediately prior to the denial of custody and have not yet
reached their 16th birthday. FN12 These requirements have been
fulfilled; therefore, The Convention is applicable.
(b) According to Article 3 of The Convention, transport or
retaining a child is illegal if custody is denied to a person,
agency or other entity that individually or collectively has such
a right according to the laws of the state in which the child had
its customary place of residence immediately prior to the
transport or retention and this right of custody for the purposes
of this decision therefore applies to the child’s actual persona
and especially to the right to determine the child’s home. (Art
5, part. a of The Convention). FN13
It is not contested that both parties had collective custody
rights for the child and actually acted upon such rights. FN14
When the Mother took the children to Switzerland, she denied the
Father his existing custody rights. The transport of the
children to Switzerland denied the Father his custody rights and
was therefore illegal FN15 within the meaning of Art. 3 of The
Convention.
2(a) If a child has been illegally transported within the
meaning of Art 3 and less than one year has expired since the
transport at the time a petition is filed in a signatory state in
which the child is located, the responsible court must order an
immediate return of the child. (Art 12 of The Convention). FN
16This provision is designed to realize the goals of The
Convention, specifically to secure the immediate return of a
transported child to a signatory state and to ensure actual
protection of the custody rights that exist in a signatory state
(Art 1 of The Convention).
However, the court can decide against the return of the
child if the person opposing such return can prove the other
party claiming custody rights had not actually exercised such
rights at the time of the transport or had agreed to the
transport or had approved it after the fact. FN17 Further,
return is not appropriate if significant danger of physical or
emotional injury to the child exists or the child will otherwise
be subjected to unsuitable conditions (Art. 13, paragraph 1,
parts a & b). FN18
In applying these provisions, it is essential to keep in
mind the goals of The Convention and the fact that custody issues
cannot be definitively decided within the parameters of this
proceeding. FN19 As far as we can determine from the 30 Jul
1991 letter from the Justice Department (Exhibit 1), the
exceptions to The Convention delineated in Art 13 are to be
applied restrictively (also the Explanatory Report, Permanent
Bureau Hague Conventions, Exhibit 2, page 43, No. 116). FN20
Art 13, Paragraph 1, part b of The Convention requires proof of a
significant danger of physical or emotional injury to the child.
This implies that the reasons for an objection to return must be
quite substantial. This requirement refers not only to physical
or emotional injury but also to the unsuitable conditions which
could result for the child as a result of his return (Appellant’s
Exhibit1, page 2).
The foreign decisions (Exhibits 3-9) and the published
opinion of the Swiss Supreme Court submitted by the appellant
also call for a restrictive application or interpretation of
Article 13 of The Convention.
(b) The Appellee is opposing the return of the children
based on the fact that the appellant has agreed to transporting
the children to Switzerland and had even wanted to transfer his
place of residence to Switzerland.
After a long stay in Switzerland, the appellee returned to
the U.S.A. in April, 1991 with her parents. In the same month,
the parties decided to leave what had been their home up to that
point in Kernesville and move to Switzerland because they hope to
find better economic conditions in Switzerland. They therefore
dissolved their household in a short period of time, sold all
their furniture and rented their property. The appellee
ultimately flew to Switzerland with the children on 10 May 1991.
The appellant wanted to join her a week later. On 13 May 1991
the appellee filed a petition for divorce and an emergency
petition for temporary custody, and informed the appellant
through his brother. In light of these circumstances, the
husband stayed in the U.S.A., rented a room and looked for a job.
While the appellee maintains that the two had discussed a
temporary separation while in the U.S.A. and that the petition
for divorce was only for the purpose of ensuring the care and
feeding of the children (because the husband would probably not
be able to find a job and a steady source of income quickly), the
appellant maintained in connection with the proceeding before the
judge that the two had never discussed separation or divorce.
If a temporary separation had actually been agreed upon
between the parties, the appellee did not need to file a divorce
petition three days after her arrival. In addition, the
emergency request for temporary custody could have been avoided
if the husband had been in agreement with the separation for his
wife and children. The time frame of events also tends to
disprove the appellee’s contentions. Just a month after
returning to the U.S.A. the appellee returned to Switzerland with
her children. In the meantime, an entire household was
liquidated and the appellant gave up his job. It seems
improbable that he wanted to give up his personal and economic
situation in the U.S.A. for an uncertain future. It is assumed
that the appellee’s return to Switzerland occurred with the
approval of the appellant, but he never would have agreed to this
return if he had known of his wife’s true intentions. Therefore,
we can hardly call this with the approval of the appellant and we
cannot apply Art 13, Para. 1, part a of The Convention.
(c) The appellee also maintains that returning the children
to their father would result in severe danger of physical or
emotional injury, FN21 in that it would mean separation from
their mother who no longer wished to return to the U.S.A. She
relies on the opinion of the trial court, which places primary
emphasis on the welfare of the children. It should be be
determined from the present living situations of the parents
which of the possible solutions would best serve the interests of
the children. In light of the existing personal situations,
appellee’s return of the children to the appellant would be out
of the question.
In opposition to the above, the appellant contends that the
trial court was influenced by custody considerations that were
inappropriate to address at that proceeding. THe fact that the
children would have to be placed in a nursery could not be
considered an unsuitable condition for the children within the
meaning and purpose of or through restrictive application of Art
13(b) of The Convention. In addition, it is entirely feasible
for the appellee to return to the U.S.A. with the children for a
limited time period. FN22
If children are illegally removed from their place of
residence and kept away from another parent with legal custody
rights, it can very seriously affect their further development.
In particular, small children cannot understand or deal with the
loss of a trusted person. For this reason, such illegal action
should be reversed as quickly as possible in the interest of the
children’s welfare. Only when extreme circumstances exist which
will influence the children’s well being should their return be
denied. In do so, it should be considered whether the reasons
against a return of the children allow the denial of custody to
be corrected. Therefore, the exceptions listed in Art. 13(b) of
The Convention are to be applied restrictively; i.e., they must
be so extreme as to make a return of the children impossible.
Both the trial court and the appellee assume that the
appellant will not take care of his children during the day and
that he would therefore leave them in care of a nursery. In
addition, he occupies only a single room which is unsuitable for
the care of small children. Further, the youngest child is still
breast-feeding. In the event of their return, that child would
have to be put on bottle-feeding too quickly. In opposition, the
appellant claims he is in a position to find a suitable apartment
with the necessary furnishings in a short time without any
difficulty. His brother owns a large house and he would be able
to say with him for the time being.
The appellee and the trial judge assumed that the small
children would have to be returned to the U.S.A. without their
mother. They are forgetting that she could easily and in fact
should accompany her children. In doing so she could avoid
having her children placed in a strange environment, like a
nursery, for even a limited time period, and the youngest child
could continue breast-feeding. The appellee is not required to
return to the appellant but only for a limited stay until a
decision is reached concerning the placement of the children. In
the event that the appellee absolutely refuses to return to the
U.S.A. with the children, it should be determined at that point
whether a return of the children would threaten their physical or
emotional well being or expose them to unsuitable conditions. FN
23Placing the children in a nursery during working hours
constitutes the basis of the appellee’s opposition to the
children’s return. However, the present situation in Switzerland
also demands that many children are kept in nurseries during the
day on a long term basis, and they are very well cared for there.
Despite the appellee’s contentions, a limited period during which
her children are in a nursery cannot be called extreme risk of
mental or physical period or unsuitable conditions for th
children. Even if certain difficulties must be overcome at the
beginning, on the whole they seem less significant than the
damage done to the husband’s custody rights. FN24
In summary, there exists no exception listed in Art 13,
Para. 1 of The Convention and the children must therefore be
returned to the U.S.A. It would obviously be preferable for them
to return with the appellee. However, in the event that she
refuses such a return, the children are still to be returned to
their father.
The appeal is deemed valid and is approved and the 08 Jul
1991 decision of the president of the Olten-Gosgen court is
hereby reversed. The appellee is ordered to return the children
to their previous place of residence in Kernersville, North
Carolina, U.S.A. within thirty days of this decision, or to
surrender custody of them to the appellant for this purpose.
4. No fees are imposed for this proceeding, (Art 26, Para 2
of The Convention). As losing party, the appellee must cover all
costs incurred by the appellant.
IT IS HEREBY DECIDED:
1. According to the terms of this appeal, the appellee is
ordered to return the children to Kernesville, North Carolina, or
surrender custody of them to the appellant for this purpose
within thirty days of this opinion.
2. No fees are imposed for this proceeding.
3. The state allows the recognition of fees for Dr. Studer,
Dr. Groucher and Dr. Halflinger.
________________________________________________________________
Notes:
1. TRANSLATION provided by: Smith, Helms, Mulliss & Moore of
Greensboro, NC. Document is dated 05 Dec 1991
2. All notes are comments by William M. Hilton, CFLS, Attorney
At Law, Box 269, Santa Clara, CA 95052 (408) 246-8511.
________________________________________________________________
——————–
1. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention]
2. This is the “Habitual Residence” within the meaning of Art. 3
of The Convention.
3. Art 13(a)
4. Art 13(b)
5. “Wrongful Removal” Art. 3
6. Art. 13(a)
7. Art 13(b): Notwithstanding the provisions of the
preceding Article, 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,
institution or other body having the care of the person of
the child was not actually exercising the custody rights at
the time of removal or retention, or had consented to or
subsequently acquiesced in the removal or retention[.]
8. This article is probably mis-cited. This may refer to the
introductory language of The Convention.
9. Similar language is found in the Uniform Child Custody
Jurisdiction Act (UCCJA) and the Parental Kidnapping
Prevention Act (PKPA) 28 USC 1738A. “Best Interests”
language is often used by a court that does not want to
follow the jurisdictional and procedural rules established by
the UCCJA, PKPA and The Convention. This cause the
misapplication of these laws in that they exist for the best
interests of all children which is to prevent or at least
reduce child abduction. If the courts were to make no
exceptions to the rule that an abducted child is to be
returned to its “habitual residence”, with proper safeguards
in appropriate cases, then the incidents of child abduction,
felt to be about 350,000 or more per year, would be greatly
reduced.
10. See Burchard v Garay (1986) 42 Cal.3d 531 [229 Cal.Rptr. 800;
724 P.2d 486] where the California Supreme court ruled that
it was an abuse of discretion for the trial to grant custody
to the father because, inter alia, the mother used child
care.
11. “Contracting States” Art. 35
12. Art 4
13. Arts 3: 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.
Art 5: For the purposes of this Convention–(a) ‘rights of
custody’ shall include rights relating to the care of the
person of the child and, in particular, the right to
determine the child’s place of residence; (b) ‘rights of
access’ shall include the right to take a child for a limited
period of time to a place other than the child’s habitual
residence.
14. See, for example, California Civil Code Section 197 that
gives the parents equal rights of custody in the absence of
any court order. See also California Penal Code Section 277
which makes it a felony to abduct a child in the absence of a
court order.
15. A better term is that used by The Convention: Wrongful
Removal, which is defined under Art. 3. See also Wrongful
Retention which applies when the removal was with consent but
only for a period of time.
16. See 42 USC 11603(b) and (f)(3). It happens that at times one
does not know where, in the United States as an example, just
which state the “wrongfully removed/retained” child is in.
One should then file an action in a federal district court in
the theory that they would have jurisdiction over the child
no matter where they were in the US. By filing this action
one may be able to avoid the “one year” limitation under Art
12.
17. Art 13(a)
18. The precise language of Art 13(b) is instructive: “[T]here
is a grave risk that his or her return would expose the child
to physical or psychological harm or otherwise place the
child in an intolerable situation.” (Emphasis added).
Compare “significant” to “grave” and “unsuitable” to
“intolerable”. The decision could be used to argue that any
sort of inconvenience to the child would qualify whereas the
intent of The Convention is that serious harm must result.
See 42 USC 11603(e)(2)(A) and the requirement of clear and
convincing evidence. In nearly all cases that have discussed
this section (and many have) the rulings have overwhelmingly
required a very high standard of proof coupled with an
immediate showing of serious harm. See also the cases
collected under the UCCJA “Emergency” jurisdiction section, 9
ULA 3(a)(3).
19. Art 19, 42 USC 11601(b)(4)
20. No. 116 reads as follows: “The exceptions contained in b
deal with situations where international child abduction has
indeed occurred, but where the return of the child would be
contrary to its interests, as that phrase is understood in
this sub-paragraph. Each of the terms used in this provision
is the result of a fragile compromise reached during the
deliberations of the Special Commission and has been kept
unaltered. Thus it cannot be inferred, a contrario, from the
rejection during the Fourteenth Session of proposals
favouring the inclusion of an express provision stating that
this exception could not be invoked if the return of the
child might harm its economic or educational prospects, that
the exceptions are to receive a wide interpretation.”
21. Art 13(b)
22. The issue of “best interests” is an ongoing problem that the
practitioner will constantly face with the court and other
counsel. It is important to stress, from the outset and
frequently during the hearing, that a proceeding under The
Convention is not a determination of the merits of a custody
dispute.
23. Art. 13(b)
24. One should also argue at this point that there is also the
damage to the child caused by its being removed from a parent
that it had regular contact with. See, e.g., William F.
Hodges, Interventions for Children of Divorce, John Wiley and
Sons.