Berendsen v Berendsen (DC Kansas 1996)Case No. 96-4042-RDR
===============================================================
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FILED
22 Mar 1996
Clerk, U.S. District Court
Petitioner: SUSANNA BERENDSEN, Case No. 96-4042-RDR
vs.
Respondent: DAVID ALAN NICHOLS,
ORDER
After conducting a hearing and considering the positions of both
sides, the court makes the following findings and orders:
1. The court has jurisdiction over this action pursuant to 42
U.S.C. 11603.
2. Holland and the United States of America are contracting states
to The Convention on International Child Abduction (“the
Convention”) as enforced through 42 U.S.C. 11603.
3. Holland is the “habitual residence” of David Wesley Nichols
(age 5) and Shannon Kate Nichols (age 3) for purposes of the
relevant statutes and the Convention.
4. Petitioner, Susanna Berendsen, was granted custody of David and
Shannon by virtue of Dutch court orders.
5. Respondent, David Alan Nichols, has wrongfully retained David
and Shannon in the United States away from the petitioner’s
residence in Holland.
6. Petitioner did not acquiesce to the custody of the children
with the respondent after early January 1996.
7. For the purposes of the relevant statutes and the Convention,
no grave risk to the children has been established in returning
them to petitioner’s custody in Holland.
8. No material change in the findings and orders of this court
would occur if respondent were granted additional time to respond
to the petition in this case.
9. Pursuant to 42 U.S.C. 11607(b)(3), the respondent shall pay
at least a part of the expenses incurred by the petitioner in
obtaining the return of the children. The court will order the
parties to comply with the provisions of D.Kan.Rule 54.2 in
seeking such costs. The court strongly urges the parties to
attempt settlement of this issue.
IT IS THEREFORE ORDERED that respondent return David Wesley
Nichols and Shannon Kate Nichols to the petitioner forthwith.
IT IS FURTHER ORDERED that petitioner is awarded some portion of
costs associated with this action in an amount to be determined by
the court in a later order.
IT IS SO ORDERED.
Dated this 22nd day of March, 1996 at Topeka, Kansas.
/s/ Richard D. Rogers
____________________________
United States District Judge
=================================================================
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FILED
29 Mar 1996
Clerk, U.S. District Court
Petitioner: SUSANNA BERENDSEN, Case No. 96-4042-RDR
vs.
Respondent: DAVID ALAN NICHOLS,
MEMORANDUM AND ORDER
This order is issued to provide further explanation and authority
for the court’s order dated March 22, 1996 which granted
plaintiff’s petition requesting the immediate return of David
Wesley Nichols and Shannon Kate Nichols to her custody pursuant to
the provisions of The Convention on International Child Abduction
(“the Convention”) as enforced through 42 U.S.C. 11603.
During the hearing on the petition, a prime issue raised by
respondent was the validity of a Dutch divorce decree. Respondent
asserted that he had not been served with formal notice of the
divorce proceedings prior to the entry of the decree. The divorce
decree listed petitioner as the guardian and respondent as the
“second guardian” of the children of the marriage. At the close of
the hearing, the court remarked that even if the divorce decree
was invalid, the controlling law in this area did not permit a
parent to abduct a child from the child’s habitual residence in
order to initiate divorce proceedings in another country.
This proposition is supported by the Convention’s definition of
“wrongful removal” which does not make reference to divorce
decrees. Under the Convention, the removal of a child from one
country to another is wrongful when:
“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 agreement having legal effect under the law of that
state.”
The Convention, Article 3.
Without considering the divorce decree, petitioner still had joint
custody rights under the laws of The Netherlands. This is not
disputed. Nor is it disputed that petitioner was exercising those
rights when respondent removed the children, with petitioner’s
consent, to the United States for a Christmas visit, but then
retained the children, without petitioner’s consent, after early
January 1996. It is a violation of the Convention for respondent,
in breach of petitioner’s custody rights, to retain the children
away from their habitual residence for the purpose of initiating
divorce proceedings in the United States, unless a proper defense
can be established. See Feder v. Evans-Feder, 63 F.3d 217 (3rd
Cir. 1995) (mother violated Convention by retaining child from
habitual residence in Australia for the purpose of starting
divorce proceedings in the United States); see also, Friedrich v.
Friedrich (6th Cir. 1996) 78 F.3d 1060 (removal of child to
America was wrongful and breached joint custody rights of German
father).
The grave risk defense was advanced by respondent. However,
although respondent established that petitioner is unemployed,
living on social welfare, and an infrequent user of marijuana
(which apparently is legal in The Netherlands), the court believes
respondent failed to demonstrate with clear and convincing
evidence a grave risk to the children by returning them to
petitioner or that their return to petitioner would place them in
an intolerable situation. Such proof was necessary to establish
the grave risk defense. The Convention, Article 13(b); 42 U.S.C.
11603(e)(2).
Nor did respondent establish that additional time to present
evidence on this matter would change the court’s view regarding
the grave risk defense. In making this decision regarding the
grave risk defense, we are mindful that the defense should be
narrowly construed and is not intended as a vehicle for courts
where children have been removed to litigate the children’s best
interests. Friedrich, supra.
Accordingly, the court issued its order dated March 22, 1996
granting the petition for return of the children to petitioner.
IT IS SO ORDERED.
Dated this 29th day of March, 1996 at Topeka, Kansas.
/s/ Richard D. Rogers
____________________________
United States District Judge