SWITZERLAND – KOROWIN – 1992 (Return ordered) KOROWIN v KOROWIN. The mother took the child to Switzerland for a month long visit. After one week, the mother decided she was not going to return to the United States with the child. The court ordered the child returned to the United States.
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DEPARTMENT OF STATEOFFICE OF LANGUAGE SERVICES
Translating Division
LS No. 138036
BL
German
[Translator’s note: the child’s name is variously spelled
“Deven” or “Devin” throughout the document – the correct
spelling not being known, the translation follows the original]
District Court of Horgen
—————————————————————
4891072U/ER4SV/ez
Single Judge in Summary Proceedings
Vice President lic.iur. Handloser assisted
by court secretary lic.iur. Schnyder
Decree of February 13, 1992
in the case of
K o r o w i n William John,
925 Antoine Street, Wyandotte, Michigan, USA,
petitioner,
represented by Attorney Rene Horlacher,
Kernstr. 8/10,
Postfach 251,
8026 Zurich,
vs.
K o r o w i n – Schreiner Nina S.,
Kirchbodenstr. 22, 8800 Thalwil,
defendant,
represented by Attorney Dr. Reto Suhr,
Pestalozzistr. 24,
Postfach
8028 Zurich,
concerning return of a child
Petition
“1. To order the immediate return of the child of the petitioner
and the defendant, Deven James Korowin, born on October 3,
1989, citizen of the United States of America and
Switzerland, U.S. [Social] Security no. 363-11-4644, U.S.
passport no. 023620703, Swiss passport no. 7690037, resident
at 925 Antoine, Wyandotte, Michigan, U.S.A., at present with
the defendant at Eisenbahnstrasse 29, 8800 Thalwil, to the
petitioner at his residence in Wyandotte, Michigan, U.S.A.;
2. to order the defendant under threat of punishment in
accordance with the provisions of Art. 292 of the Penal Code
and the threat of enforcement to return the child within a
short period, to be determined by the court, to the
petitioner at his residence in Wyandotte, and to charge an
appropriate agency (town administration, youth welfare
office, or guardianship office) with supervising the return;
3. in case the return of the child to the petitioner’s residence
does not take place within the stipulated period, to order
the competent town administration or, as the court sees fit,
another appropriate agency, such as the guardianship office
or the youth welfare office, to enforce the return of the
child as decreed in this decision, if necessary by force and
with the aid of the police as well as other appropriate
agencies, and to take the official measures necessary and
appropriate for the return of the child;
4. further to order the defendant to reimburse the petitioner
for all necessary past, present, and future costs incurred
within the meaning of Art. 26, paragraph 4 of the Hague
Convention on the Civil Aspects of International Child
Abduction.”
Motions
By petitioner: to approve the petition.
By the defendant: “1. to reject all points of the
petition
2. to decree that the costs of the
proceeding be borne by the state.
3. to order the petitioner to pay the
defendant an appropriate
compensation for the proceedings.”
The Facts of the Case:
I.
1. On September 6, 1991, the above-mentioned petition dated
September 5, 1991, was received at the Horgen District Court (act.
1). On September 12, 1991, the parties were summoned to a hearing
on October 16, 1991 (act.4/1-4), while a decree dated September
17, 1991 excused the petitioner from appearing in person (act. 6).
On the occasion of the hearing, the petitioner filed the following
additional motion (act. 17):
“That the petitioner be furnished free of charge with a
court-appointed attorney, and that the person
presenting the motion be appointed as such.”
Since the defendant credibly proved to the court during the
hearing of October 16, 1991, that the return of Deven James could
result in a serious danger of physical or psychological harm to
the child (act. 19; Prot. p. 13 ff.), an order was issued on
November 8, 1991 (act. 26), to commission an expert opinion on
that matter. In a letter dated November 19, 1991, (act. 29), Dr.
Michael von Aster of the Psychiatric University Hospital for
Children and Adolescents was asked to provide a short expert
opinion. On December 6, 1991, the expert opinion dated December 5,
1991 was received by the court (act. 30). On that same day, the
parties were given the opportunity by a court order to comment on
the matter (act. 31). In his reply of January 8, 1992, the
petitioner submitted a number of new motions (act. 38), based on
Art. 115 of the Code of Civil Procedure. Whether the preconditions
exist for a consideration of these motions in accordance with Art.
115 of the Code of Civil Procedure, may be left open, since these
proceedings are governed by the principle of ex officio
proceedings, and the new motions introduced are not relevant to
the decision, as made clear by the considerations mentioned below.
For that reason, there is no need for the defendant to comment on
the newly introduced allegations.
2. The petitioner’s motions are based on the following
uncontested facts: the petitioner and the defendant were – married
in 1986 in the United States (act. 1; Prot. p. 15). On October 3,
1989, their son, Deven James, was born (act. 2/3). The Korowins
lived together at 925 Antoine Street, Wyandotte, Michigan, U.S.A.
(act. 1, 2/2, 14/2). On May 30, 1991, the defendant left the
United States for Switzerland with the child in order to spend a
month’s vacation with her parents in Thalwil. Their return flight
was booked for July 3, 1991 (act. 1, 2/5; Prot. p. 14). About one
week after her arrival in Switzerland, the defendant decided not
to return to the United States with the child Devin James (Prot.
p. 16 and 19). On June 18, 1991, the defendant filed for divorce
in the magistrate’s court of Thalwil (Prot. p. 16), and instituted
formal proceedings at the Horgen District Court on July 5, 1991
(act. 1 and 19). Meanwhile, on July 4, 1991, the Federal Ministry
of Justice, which is the Swiss central authority, received a
petition by the petitioner via the American central authority,
based on the Hague Convention on the Civil Aspects of
International Child Abduction (SR 0.211.230.02, FN1 hereinafter
referred to as the Hague Convention), which has been ratified both
by the United States and Switzerland, for the return of the child
Devin James (act. 1, 2/1, 14/1). FN2 The Federal Ministry of
Justice instructed the Horgen District Court on August 7, 1991, to
suspend the divorce proceedings for the time being in accordance
with Art. 16 of the Hague Convention until a court decision on the
return of the child Devin James has been issued (act. 3). FN3
According to the petitioner, divorce proceedings have also been
instituted in the United States (Prot. p. 3).
1. The Hague Convention on the Civil Aspects of International
Child Abduction is applicable to children who were residents of
one of the Contracting States directly before their custody was
violated FN4 and who are not yet 16 years FN5 of age (Art. 4
of the Hague Convention). This is intended to assure the immediate
return of children taken illegally to another Contracting State
and held there, and to guarantee that the custody and visiting
rights existing in one Contracting State will actually be
respected in the other Contracting States (Art. 1 of the Hague
Convention). FN6 The implementation of the Convention is to take
place as quickly as possible (Art. 2 of the Hague Convention). In
the Canton of Zurich, this is a summary proceeding in accordance
with Art. 222, no. 3 of the Civil Code, whereby there is no need
to set a time in accordance with Art. 228 of the Civil Code, since
the Hague Convention creates substantive law, but not substantive
evaluation of the law (ZR 88 No. 24, p. 63). FN7
The petitioner bases his motion on the Hague Convention; the
defendant challenges its applicability. She claims that this is
not a case of child abduction, but a divorce case involving
parties with different nationalitites, that from the procedural
point of view, the preconditions of Art. 222 no. 3 of the Code of
Civil Procedure do not exist, and furthermore, that the defendant
is not holding the child Devin James illegally within the meaning
of Art. 3 of the Hague Convention (act. 19, Prot. p. 11 f.).
2. Both the United States and Switzerland are Contracting
States of the Hague Convention. FN8 Furthermore, the child Devin
James, born on October 3, 1989 (act. 2/3), clearly has not
completed his l6th year. His last regular residence directly
before being withheld from his father as claimed, was at 925
Antoine Street, Wyandotte, Michigan, U.S.A., where the petitioner,
the defendant, and Devin James were living together. At the time
the child was being withheld by the defendant, no court
proceedings, i.e. divorce proceedings, had been initiated between
the parties, and most importantly, no decision had been made
concerning custody of the child (see Erw. 1.2.). Thus the child
Deven James has been in Switzerland against the will of the
petitioner since July 1991.
Therefore, the Hague Convention on the Civil Aspects of
International Child Abduction is, on principle, applicable to this
case.
3. a) In accordance with Art. 3 of the Hague Convention, the
transfer or holding of a child is deemed illegal FN9 when this
violates the custody rights which a person has either alone or
jointly with another person under the laws of the state in which
the child had his regular residence directly before being taken
away, and when these custody rights were actually being exercised
or would have been exercised by one person or jointly at the time
the child was taken away, if he had not been taken away or
withheld. Custody rights can exist by law and include especially
the physical care of the child as well as the right to determine
his residence (Art. 5 letter a of the Hague Convention). FN10
b) Directly before the child Deven James Korowin was withheld
[from the petitioner], his last regular residence was 925 Antoine
Street, Wyandotte, Michigan, USA. Therefore it must be determined
in accordance with the laws of the State of Michigan whether the
custody for Devin James rested jointly with the parents, i.e. also
with the father. FN11 The petitioner submitted appropriate
quotes from Bergmann/Ferid, International Marriage and Parent- and
Child Law (act. 16), a certification by consular officer John
Dixon Markey of the Child Custody Division of the U.S. Department
of State (act. 2/1, 14/1), as well as by B. Deschenaux of the
Federal Ministry of Justice (act. 2/6). FN12 These quotes prove
that under American law in the State of Michigan, petitioner and
defendant had joint custody.
c) The defendant raises the objection that the custody rights
had not been exercised jointly at their last joint residence in
Wyandotte, Michigan. Only the defendant had taken care of the
child, for instance, it had always been the defendant who took the
child to see the doctor. Therefore she claims that the
precondition of actual exercise of custody rights in accordance
with Art. 3, letter b, of the Hague Convention (act. 19; Prot. p.
12 ff.) does not exist.
It has been determined and not contested, that Mr. and Mrs.
Korowin lived together in the same apartment until May 30, 1991
(act. 1; Prot. p. 13 ff.). This is sufficient for these
proceedings to assume actual jointly exercised custody. It is
furthermore consistent with general experience in life that a
couple living together jointly exercises custody of their child.
The question of who took care of the child for how long or most of
the time cannot have a bearing on the question of the actual
exercise of custody in accordance with Art. 3, letter b, of the
Hague Convention. Art. 5, letter a, of the Hague Convention
especially defines the concept of custody as the right, among
other things, to determine the child’s place of residence,
regardless of who provides most of the care for the child. FN13
d) The defendant further objects that Art. 222, no. 3 of the
Code of Civil Procedure cannot provide the basis for the order
requested by the petitioner, since on the one hand, divorce
proceedings have been pending before the Horgen District Court,
and on the other hand, the petitioner is not suffering any
irremediable damage if Devin James continues to stay with his
mother. It must be assumed that the divorce judge will entrust the
two-year-old to the care of his mother as a precautionary measure
(act. 19; Prot. p. 5). FN14
When questioned personally, the defendant stated that she had
decided about one week after arriving in Switzerland, i.e. around
June 6, 1991, to remain here together with Devin James (Prot. p.
6). This is the decisive date from which the child has been
withheld. Consequently, it must be noted that at the date from
which the child was being withheld, there was no decision
concerning custody, nor had proceedings in this regard been
initiated. The divorce proceedings have only been pending before
the Horgen District Court since July 5, 1991 (act. 1 and 19). Even
if the conciliation request of the defendant were applicable, the
withholding dates back even farther, since the former is dated
June 18, 1991 (Prot. p. 16). FN15
The procedure for a court order in accordance with Art. 222,
no. 3 of the Code of Civil Procedure requires that the petitioner
is threatened with an irremediable disadvantage. This is obviously
the case with the violation of his custody rights, which according
to Art. 5, letter a, of the Hague Convention can also consist in
determining his child’s place of residence. FN16
It is immaterial for these proceedings who may be better
suited to take care of the child, or who might receive custody in
a custody proceeding. The Hague Convention does not concern a
substantive settlement of custody, but the restoration of the
status quo ante, FN17 i.e. it is intended to reverse the factual
conditions created by the withholding of a child and to place the
custody decision into the hands of the judge at the place of the
child’s regular residence (ZR 88, No. 24, p. 60). FN18
Therefore, Art. 16 of the Hague Convention expressly provides that
the Contracting States must not make any decisions concerning
custody before it has been determined whether a child must be
returned on the basis of the Hague Convention. For that reason, in
accordance with Art. 19 of the Hague Convention, the decision of
the judge in this case cannot be considered a decision concerning
custody. FN19 Instead, the custody situation which pertained
before the child was withheld from the petitioner is deemed to be
the valid legal status, which must be restored. Therefore, the
Hague Convention classified with international assistance in civil
matters.
4. In summary, it must be noted that the Hague Convention on
the Civil Aspects of International Child Abduction is applicable
to this case, and that within the meaning of Art. 3 of the Hague
Convention, the defendant is illegally retaining the child Deven
James in Switzerland. FN20
III.
1. In accordance with Art. 12 of the Hague Convention, the
competent court must order the immediate return of the child, if a
child is being kept illegally, within the meaning of Art. 3 of the
Hague Convention, and if the child has been retained less than a
year at the time the Swiss central authority, or the court,
receives the petition.
In this case, the petitioner’s request was received by the
Federal Justice Ministry, the Swiss central authority (compare
Art. 6, paragraph 1 of the Hague Convention), on July 4, 1991, and
was filed with the Horgen District Court the next day, September
[sic] 5, 1991. FN21 The defendant, according to her own
statements, decided in early June of 1991 not to return to
Wyandotte, Michigan with the child (Prot. p. 16). Thus the period
of one year provided by Art. 12, paragraph 1 of the Hague
Convention applies, and for that reason, the immediate return of
the child Deven James must be ordered. FN22
2. a) Regardless of the principle of return in accordance
with Art. 12 of the Hague Convention, the judge is not obliged to
order the return of the child if the person opposing the return
can prove that the return would entail a serious danger or
physical or psychological harm to the child, or if it would place
the child in an unconscionable situation in other ways (Art. 13,
paragraph 2, letter b, of the Hague Convention). FN23
b) The defendant bases her argument on this exception to the
rule and opposes the return of Devin James (act. 19, p. 5 ff.;
Prot. p. 13 ff.). Essentially, the defendant claims that she has
been the child’s only caregiver since his birth, and that for this
reason, a separation of the mother and the two-year-old child
would lead to serious danger to Devin James. This was
corroborated by the child’s pediatrician, Dr. Th. Schwank as well
as day-care provider Mrs. Silvia Meier. A medical opinion by Dr.
Th. Schwank dated October 26, 1991, confirming the strong ties
between mother and child, as well as the corresponding danger in
case of a separation, was filed by the defendant (act. 22). The
defendant herself credibly claimed during personal questioning on
October 16, 1991 that the ties between her and her son Deven James
are extraordinarily close. She also stressed that she is the
child’s only caregiver (Prot. I p. 14 ff.). This argument, that a
separation between the defendant and her child would amount to
risking a serious danger of psychological harm to the child, was
expressly confirmed by the summary expert opinion by the
Psychiatric University Hospital for Children and Adolescents of
December 5, 1991 (act. 30).
It must therefore be assumed that in case of a separation of
mother and child, the child Devin James would be exposed to a
grave risk of physical or psychological harm within the meaning of
Art. 13, paragraph 1, letter b, of the Hague Convention.
c) The purpose of the Hague Convention is the quickest
possible restoration of the factual custody situation that existed
before the withholding of the child (see Art. 1 of the Hague
Convention). From this point of view and considering the basic
claim for the return of the child, the objections must be
interpreted in accordance with Art. 13 of the Hague Convention.
They must therefore present a compelling argument against the
return of a child (ZR 88 No. 24, p. 60). Concerning the case at
hand, this means that the defendant must be absolutely unable to
return with the child, and that therefore the child would have to
return by himself.
The defendant objects to this on the grounds that she would
have better opportunities for making a living in Switzerland than
in the United States and that her chances in the divorce
proceedings are better in Switzerland, too, since in the United
States, she would be facing the petitioner’s entire ‘clan’ all by
herself (Prot. p. 13 ff.). FN24
Such objections on the part of the defendant are insufficient
to prove that her return to the United States is impossible. The
defendant can definitely be expected to return together with Devin
James. She is holding Devin James arbitrarily in Switzerland (see.
Erw.Il), and it is clear that she opposes the return, among other
things, because she herself does not want to return to the United
States. However, the purpose of the Hague Convention is the
restoration of the status quo ante. The Convention is not intended
to produce a substantive decision on custody. FN25 It is
intended to prevent the surreptitious creation of jurisdiction of
the home country of one of the spouses. The abductor or withholder
must initiate regular proceedings in the jurisdiction which he
sought to avoid (ZR 88, No. 24). Thus neither the defendant’s
better expectations in the divorce proceedings nor in the job
market justify the violation of the petitioner’s custody rights,
or to claim that she cannot return to the United States. After
all, the Hague Convention does not require the defendant to again
take up marital relations with the petitioner or to live in his
household if she returns to Wyandotte, Michigan. For the rest, the
petitioner has submitted a sworn statement (act. 39/1, No. 2 –
act. 41/1), declaring his willingness to provide housing and to
bear the costs if she were to return to the United States while
custody proceedings are pending. FN26
d) But the above explanation also shows the unhappy
consequences of the Hague Convention. It only requires the return
of the child, while actually it should also require the return of
the defendant. However, this drawback is not overwhelming in the
case at hand. As a responsible mother who has the interest of her
child at heart, and in view of her own description of her
extraordinarily close ties with Devin James (Prot. p. 14 ff), as
well as the confirmation of that fact by the summary expert
opinion of December 5, 1991 (act. 30), and the pediatrician’s
certificate of October 26, 1991, which she filed herself (act.
22), the defendant will hardly refuse to accompany the child on
his return. Should she refuse and thereby expose her child to a
serious danger of physical or psychological harm, it will have to
be assumed that she places her own welfare above that of the
child.
Thus it is exclusively up to the defendant whether Devin
James will be exposed to a serious risk of physical or
psychological harm within the meaning of Art. 13, paragraph 1,
letter b, of the Hague Convention. This is not sufficient under
the existing jurisprudence and case law to deny the return of the
child in accordance with Art. 13 of the Hague Convention (Zœi 88
no. 24 with sources).
e) The defendant claims that giving the child Deven James to
the petitioner would create an unconscionable situation in
accordance with Art. 13, paragraph 1, end of letter b, of the
Hague Convention. She claims that the petitioner is an unsuitable
parent who could not guarantee the care of the child, being both
an alcoholic and drug addict (act. 19; Prot. p. 5 ff.).
The petitioner emphatically denies these accusations (Prot.
p. 3 ff.). As can be seen from the petitioner’s request for unpaid
counsel (act. 17, 18), he works at the Ford Motor Company and has
a monthly income of about $1,800.00. The accusations concerning
alcohol and drug abuse therefore do not appear credible, since the
petitioner is obviously capable of earning a regular income.
Furthermore, the statements by acquaintances and authorities (act.
2/12-21) submitted by the petitioner attest to the fact that he is
socially integrated. It is true that these statements were
credibly relativized by the defendant (Prot. p. 17 -19), but not
sufficiently so to allow the conclusion that the petitioner is a
drug addict living on the fringes of society. These objections on
the part of the defendant may gain relevance within the framework
of the custody proceedings, but in this proceeding, they cannot be
considered grounds for an exception in accordance with Art. 13,
paragraph 1, letter b, of the Hague Convention. It must be pointed
out once more that the Convention is not intended to provide a
substantive decision with regard to custody (Art. 19 of the Hague
Convention). Therefore, the question of who will provide better
care for the child is totally irrelevant to the question of
returning the child. The Hague Convention is intended only to
reverse the factual situation created by the withholding of the
child. FN27 The custody decision must be left to the judge at
the place of [the child’s] Previous regular residence (ZR 88
no.24, p. 60).
3. In summary, the case appears to be such that no grounds
for exceptions under Art. 13 of the Hague Convention exist, for
which reason the principle of Art. 12 of the Hague Convention must
be applied, and the child Devin James must be returned to
Wyandotte, Michigan. On principle, this must be done immediately
(Art. 12, paragraph 1 of the Hague Convention). Since it is to be
assumed that the defendant will accompany her child in the
latter’s interest, it appears appropriate to allow her a period
until March 15, 1992 to prepare for the return of the child Devin
James. The defendant will have to bear the costs for the return
(Art. 26, paragraph 4 of the Hague Convention).
IV.
In points 2 and 3 of the petition, the petitioner requests
that the court guarantee the execution of this decision.
On the occasion of the hearing of October 16, 1991, the
defendant made a good impression and described emphatically her
concern for the welfare of her child Devin James (Prot. p. 13
ff.). Therefore it does not appear probable that the defendant
will try to prevent the court-ordered return oœ the child. On the
one hand, she must be well aware that the court would make the
necessary arrangements should she refuse. On the other hand, it
must be assumed that she will not only comply with the court
order, but will accompany her child in the interest of his welfare
(see the explanations in Erw. III e).
It must be assumed at this time that there is no immediate
urgency to act in order to guarantee compliance with this decision
through the kind of measures demanded by the petitioner in points
2 and 3 of his petition. For that reason, points 2 and 3 of the
petition will not have to be considered because there is no
present need for it.
V.
1. On the occasion of the hearing of October 16, 1991, the
petitioner requested a court-appointed lawyer (act. 17, 18).
In accordance with Art. 26, paragraph 2 of the Hague
Convention, a petitioner may not be charged for costs arising from
appointing a lawyer. This does not apply if a Contracting State
has registered a reservation in accordance with Art. 26, paragraph
3 of the Hague Convention and has declared that it will be bound
by this only to the extent that the costs arising œrom the
appointment of a lawyer are covered by its system of legal aid.
Switzerland has not registered such a reservation, and therefore
the costs arising from the appointment of a lawyer must be assumed
independently of the petitioner’s financial situation. The Federal
Ministry of Justice, the Swiss central authority, advised the
petitioner by fax on August 7, 1991, to avail himself of the
services of a Swiss attorney (act. 2.7), and on August 14, 1991,
proposed by fax attorney lic.ir. R. Horlacher as a suitable
attorney. Thus attorney lic.iur. R. Horlacher is appointed counsel
for the petitioner free of charge.
2. In point 5 of the response to the petition (act. 19, p.
7), the defendant’s attorney announced a future motion for a free
attorney for the defendant, however, since he did not actually
apply for one during the course of the proceeding, it must be
assumed that the defendant did not request a court-appointed
attorney.
VI.
No court costs will be charged for these proceedings (Art.
16, paragraph 2 of the Hague Convention). However, as the losing
party, the defendant must pay the petitioner compensation for the
proceedings, which, due to the fact that he was granted free
counsel, must be paid directly to the petitioner’s attorney (Art.
89, paragraph 1 of the Code of Civil Procedure).
The Court Orders:
1. The defendant is ordered to return the child Devin James
Korowin, born on October 3, 1989, immediately, or no later
than March 15, 1992, to his former place of residence, i.e.
Wyandotte, Michigan, or to have him returned there.
2. Points 2 and 3 of the petition will not be considered.
3. The court appoints Attorney lic.iur. Rene Horlacher,
Kernstrasse 8/10, 8026 Zurich, as counsel for the petitioner
free of charge.
4. No court costs are charged.
The remaining costs, such as:
Fr. 100.00 for summonses
Fr. 635.00 for clerical expenses
Fr. 225.00 for transmission
Fr. 925.25 for expert opinions
Fr. 600.00 for translation
will be discharged by the Horgen Court.
5. The defendant is ordered to compensate attorney lic.iur.
Horlacher for his expenses in the amount of Fr. 2,000.00.
6. The parties will be notified in writing against receipt, as
will the III. Division of the Horgen District Court (Docket
0291128).
7. An appeal of this decision may be filed within 10 days of
receipt, in writing, in duplicate, and by annexing this
decision, with the Superior Court of the Canton of Zurich,
Second Civil Division. The appeal must contain the arguments
for the appeal and the grounds (Art. 276 of the Code of Civil
Procedure).
HORGEN DISTRICT COURT
Judge in Summary Procedure
The Clerk of the Court:
lic.iur. Schnyder
Dispatched on February 14, 1992
——————–
1. WMH Note: This is The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on 25 Oct
1980.
2. WMH Note: Both Switzerland and the U.S.A. are “Contracting
States” within the meaning of Art. 37 of The Convention.
3. WMH Note: See Art. 16 of The Convention
4. WMH Note: The Habitual Residence of the children. See Art.
3 of The Convention.
5. WMH Note: Art. 4 of The Convention.
6. WMH Note: Art. 12 of The Convention
7. WMH Note: Does this refer to Art. 19 of The Convention?
8. WMH Note: Contracting States
9. WMH Note: This probably should read Wrongful, within the
meaning of Art. 3 of The Convention.
10. WMH Note: Art. 5 of The Convention.
11. WMH Note: Art. 3 of The Convention
12. WMH Note: Art. 23 of The Convention
13. WMH Note: The court here makes it clear that the mere
existence of a statute granting joint custody to both parents
is sufficient. The fact, as the court notes, that one parent
may have had a greater actual burden of child care is not
controlling. The court seems to suggest that this is an
issue that relates to the merits of the custody dispute but
has no place in the application of The Convention.
14. WMH Note: The position that that Defendant mother is
advancing is one better left to the trial court in the place
of Habitual Residence, here Michigan.
15. WMH Note: This is the date that the Defendant mother filed
for divorce and the date that the Art. 12 clock starts
running as this is the first indication that the child would
not be returned to Michigan.
16. WMH Note: Art. 5 of The Convention
17. WMH Note: Art. 19 of The Convention
18. WMH Note: This is in fact the heart of The Convention.
Quoting from the Perez-Vera Report, No. 34: “The practical
application of this principle requires that the signatory
States be convinced that they belong, despite their
differences, to the same legal community within which the
authorities of each State acknowledge that the authorities of
one of them – those of the child’s habitual residence – are
in principle best placed to decide upon questions of custody
and access.”
19. WMH Note: Art. 16 of The Convention bars a court from
proceeding on the merits of a case while an action under The
Convention is pending. In this case the court, and rightly
so, holds that any order issued by a court during the
pendency of a proceeding under The Convention is a void
order.
20. WMH Note: Perhaps a better word would be “Wrongfully” as a)
that is the language of The Convention and b) the per se
removal/retention of a child may not be “illegal” while at
the same time it can be in the derogation of the rights of
custody of the left behind parent.
21. WMH Note: The position of the United States that the Art. 12
clock stops upon the commencement of the proceeding, here the
filing in the District Court of HORGEN and not when the
petition is received by the Central Authority. In this case
the one month period from 04 Jul 1991 to 05 Sep 1991 was not
fatal but in other circumstances it could be so. The
practitioner would be well advised to keep a tight hold on
the petition until it has been filed with the local court.
22. WMH Note. Art. 12 of The Convention states that if the
action to return has been commenced and less than one year
has elapsed from the date of the removal/retention, then the
child shall be returned. If more than one year has passed
The Convention still requires the return of the child unless
the Defendant proves that the child is now settled in the new
environment. Note that the court, even where it has been
demonstrated that the child is “settled”, may still order the
return of the child. All exceptions to the return of a child
are discretionary with the court.
23. WMH Note: Art 13(b) of The Convention. The exact language
of Art. 13(b) is instructive as it is much stronger than this
paragraph would lead one to believe: “there 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.” The dictionary definition of
“intolerable” is: unbearable; too severe, painful, cruel,
etc. to be endured. Compare this to “unacceptable”:
unsatisfactory or, sometimes, merely inadequate.
24. WMH Note: Compare the Uniform Child Custody Jurisdiction Act
(UCCJA), 9 Uniform Laws Annotated (ULA), Section 1(a)(5):
“The general purposes of this Act are to: * * * deter
abductions and other unilateral removals of children
undertaken to obtain custody awards.”
25. WMH Note: Art. 19 of The Convention
26. WMH Note: This is a partial example of the “Safe Harbor”
technique. The idea is that all objections to the return are
met with an affirmative response: No money to travel —>
tickets are provided; No housing —> housing is provided;
Other parent is abusive —> temporary custody, restraining
orders, etc. See also In re A (a Minor), Court of Appeal
(Civil Division), The Times 13 Jun 1987, Hearing-Dates: 10
Jun 1987.
27. WMH Note: In other words The Convention does not entertain
arguments that are relevant to a “Best Interests” hearing for
custody but only will hear arguments as to the status quo and
possible defenses.