USA – FEDERAL – CURRIER – 1994(Return ordered, stayed for one week) CURRIER v CURRIER. Father takes children to USA. Mother requests return under the Hague Convention. Court orders the return of the children to Germany. Order was stayed one week to allow for appeal.
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U.S. District CourtDistrict of N.H.
Filed
16 Mar 94, 17:41
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
845 F.Supp. 916 (D.N.H. 1994)
Gabriele Currier,
Petitioner,
v.
Civil No. 94-99-M
Richard Currier. Jr.,
Respondent.
ORDER
Gabriele Currier, a citizen of Germany, petitions the court
pursuant to 42 U.S.C. 11603(b), for relief under the Hague
Convention on the Civil Aspects of International Child Abduction
(the “Convention”) FN 01, Dec. 23, 1981, 51 Fed.Reg. 10493,
10498-502, implemented by the International Child Abduction
Remedies Act (“ICARA”), 42 U.S.C. 11601 – 11610. The court
exercises jurisdiction pursuant to 42 U.S.C. 11603(a).
Petitioner seeks the immediate return of her two minor children
to Germany. She alleges that the respondent, her husband
Richard Currier Jr., an American citizen and the children’s
father, removed them from Germany without her consent. The
children, Laura, aged 2, and Collin, aged 10 months, have dual
citizenship, but have lived in Germany with both parents since
birth. For the reasons set forth below, the court
grants petitioner the relief she requests and orders the children
returned to Germany.
BACKGROUND
This case arises from a troubled marriage. Petitioner and
respondent were married on May 3, 1991, in Germany. Their first
child, Laura, was born on December 27, 1991. The couple first
separated in June, 1992, after which petitioner and Laura resided
with her parents in Germany. The parties reconciled and their
second child, Collin, was born on April 24, 1993. In August,
1993, they separated again. Petitioner again returned to her
parents’ German home, with the children.
After that separation, respondent retained a German attorney to
assist him in securing custody of, or the right to visit, his
children. On September 14, 1993, a hearing was held in Germany
before the Family Court, District of Rockenhausen. On September
23, 1993, that court awarded petitioner custody of the children
for the duration of the parties’ separation, finding “contrary to
the father’s view. . .[there was] no basis for doubts as
regards [petitioner’s] ability to care for the children.
Emotional tension and reciprocal claims made by each party
against the other are only based in their personal relationship
with each other . . . that allows no conclusion as regards the
mother-child relationship.” See Judgment of Sept. 23, 1993, No.
3 F 288/93, Family Court, District of Rockenhausen. The custody
decree was affirmed on appeal. See Judgment of Nov. 15, 1993,
No. 6 UF 165/93, High Court of Zweibruecken.
While separated, the couple agreed to seek counseling and attempt
to reconcile their differences. When, in early November, 1993,
petitioner’s parents learned of her intention to seek another
reconciliation, they told her she could not continue to live in
their home if she resumed that relationship. On November 15,
1993, petitioner and the children moved back in with respondent.
Their marital troubles resumed almost immediately. Both
parties testified at length about behavioral lapses by the other.
By late January, 1994, tensions peaked and the marriage was,
apparently, at an irreconcilable point. On January 27th the
couple had an argument about the children’s health, which ended
with petitioner throwing something at respondent as he left to
take the children to see a doctor. That evening the parties
signed an agreement, drafted by respondent’s German attorney,
which purportedly mooted the custody decrees previously entered
by the German courts. The agreement granted respondent sole
custody of the children during any future marital separation or
in the event of a divorce. The parties presented contradictory
testimony about the circumstances surrounding the agreement’s
execution. Respondent claimed the agreement was a product of
petitioner’s demand for her freedom from the marriage and
the children. Petitioner claimed she signed the document under
duress and in response to threats. In any event, the agreement
was signed in the presence of petitioner’s friend, Roswitha
Wagner, who advised petitioner against signing it and who refused
to sign her own name on the witness line.
The next morning, respondent arranged to have the agreement
notarized by his lawyer, believing that would render the contract
legally binding under German law. Respondent testified that when
he went to call his lawyer to make the appointment (the couple
did not have a telephone in their apartment), he took Laura with
him suspected petitioner might leave with the children.
When he returned, petitioner went to Mrs. Wagner’s house to make
calls of her own. She telephoned respondent’s attorney to revoke
her consent to the agreement. Petitioner then called the local
Family Court for information related to rescinding the agreement.
In an ex parte decree issued later that morning, the Family
Court ordered respondent to return the children to petitioner.
See Judgment of Jan. 28, 1994, No. 1 F 70/94, Family Court,
District of Rockenhausen. Petitioner also informed a German
youth services agency that she feared she was losing her
children. Before obtaining a copy of the court order, petitioner
returned home to get Laura, but respondent and the children were
gone.
After petitioner obtained the order, she returned to Mrs.
Wagner’s house. There, petitioner received a call from
respondent, which ended abruptly and without respondent revealing
where he and the children were. Respondent learned from his
German attorney that petitioner had called to revoke the
agreement, but was advised that the contract was nevertheless
valid under German law until petitioner proved, in court, that
she had signed under psychological duress as she claimed.
Respondent testified that he feared petitioner would take the
children away from him, and, believing the agreement binding, he
decided to leave Germany. By 6:30 that evening respondent and
the children were enroute to the United States. Since then he
and the children have been living with his family in Holderness
and Wolfeboro, New Hampshire.
On February 10, 1994, respondent initiated legal proceedings
against his wife in New Hampshire, petitioning the Grafton County
Superior Court to enforce the marital agreement executed in
Germany. Two weeks later he obtained a temporary restraining
order against petitioner based upon her alleged prior abuse of
him (petitioner was still in Germany).
Meanwhile, on the day respondent left Germany (January 28th),
petitioner filed a criminal complaint with German authorities
charging him with abduction of the children. Petitioner also
reported the situation to the German Central Authority,
designated under Article 6 of the Convention to provide
assistance with international abductions of children residing in
Germany. By letter dated March 10, 1994, this court was informed
that the German Central Authority submitted an application for
the return of the Currier children to the United States
Department of State, which serves as the American Central
Authority under the Convention. On March 4, 1994, petitioner
brought these proceedings in this court under the Convention and
ICARA seeking an order returning the children to Germany. On
March 8, 1994, this court issued an ex parte order temporarily
returning custody of the children to petitioner pending final
disposition of the matter, and scheduled a hearing for March 14,
1994.
On March 3, 1994, the German court issued another order,
affirming the custody decree of September 23, 1993, and declaring
respondent’s removal of the children from Germany wrongful within
the meaning of the Convention. See Judgment of Mar. 3, 1994, No.
3 F 72/94, Family Court, District of Rockenhausen. On March 10,
1994, respondent’s German attorney, Dr. jur. Hans-Otto Merkel
issued an opinion letter, stating that the respondent had not
violated German law by taking the children to the United States
without petitioner’s consent. However, a March 11, 1994, opinion
letter by Dr. Donald J. Cramer, a German lawyer retained by
petitioner, asserted both that Dr. Merkel’s opinion was
inaccurate and that respondent’s actions were not consistent with
German law and did constitute a “wrongful removal” within the
meaning of the Convention.
On March 14, 1994, the German Central Authority issued an
advisory statement, pursuant to Article 7(e) of the Convention,
declaring that respondent had violated German law by removing the
children without petitioner’s consent and, therefore, had
“wrongfully removed” the children within the meaning of the
Convention.
Based on the facts adduced at the hearing and the affidavits and
advisory letters submitted by the parties, as contemplated by the
Convention, the court makes the following findings and rulings.
DISCUSSION
I. Purposes of the Convention
The preamble of the Convention explains its purpose as:
to protect children internationally from the
harmful effects of their wrongful removal or
retention and to establish procedures to
ensure their prompt return to the State of
their habitual residence.
See 51 Fed.Reg. 10493, 10498. President Reagan, in a letter to
the United States Senate, further explained that the Convention
reflected “a worldwide concern about the harmful effects on
children of parental kidnapping and a strong desire to fashion an
effective deterrent to such conduct.” See id. at 10495. To
effectuate this purpose, the Convention requires signatories to
act promptly to restore the factual situation that existed prior
to a child’s removal from the country in which he or she
habitually resides. Id. The Convention does not provide a
structure for resolving disputes about legal custody on the
merits, but, instead, presumes that those disputes are properly
resolved in the child’s country of habitual residence. Id.; Art.
19, Convention; 42 U.S.C. 11601(b)(4).
Both the Convention and ICARA insure that, absent the most
extreme circumstances, a parent will not be permitted to obtain
custody of a child by removing the child from his or her usual
residence to a country or jurisdiction perceived by that parent
to be more favorably disposed to his or her own interests. See
Art. 1, Convention; see also 42 U.S.C. 11601(a)(2). Therefore,
all signatory countries have mutually committed to promptly
return children who are “wrongfully removed” within the meaning
of the Convention, unless one of the narrow exceptions set forth
in the Convention applies. 42 U.S.C. 11601(a)(4).
The Convention and ICARA have been uniformly construed as
granting courts of the receiving country jurisdiction to
determine the merits of the abduction claim, but not the merits
of the underlying custody issue. Friedrich v. Friedrich, 983
F.2d 1396, 1399 (6th Cir.-1993). Accordingly, while this court
may properly determine which Contracting State has jurisdiction
to determine the custody rights to the Currier children, it may
not properly resolve the underlying custody dispute between the
parents. Levesque v. Levesque, 816 F.Supp. 662, 663 (D.Kan.
1993). Courts in countries party to the Convention are duty
bound to promptly return children to the country of “habitual
residence” for resolution of any custody disputes. Friedrich,
983 F.2d at 1402. Parents will hardly be deterred from moving
children across international boundaries in search of a more
sympathetic forum, if courts in the signatory countries do not
uniformly enforce the Convention in a prompt and predictable
manner. See id. at 1399.
II. Standard of Review
A. Wrongful Removal
To obtain relief, petitioner must establish by a preponderance of
the evidence that the children were “wrongfully removed” within
the meaning of the Convention. Art. 12, Convention; 42 U.S.C.
11603(e)(1)(A). Removal is considered wrongful when:
(a) it is in breach of rights of custody
attributed to a person. . .either jointly or
alone. . .under the law of the state in which
the child was habitually resident immediately
prior to the removal; and
(b) at the time of removal. . .those rights
were actually exercised, either jointly or
alone. . .
Art. 3, Convention. Petitioner must establish (1) that she was
exercising lawful rights of custody at the time of the removal
and (2) that the removal was from the child’s “habitual
residence.” Meredith v. Meredith, 759 F.Supp. 1432, 1434 (D.
Ariz. 1991). Respondent concedes that Germany, where the children
were born and have always lived, was the habitual residence of
the children prior to their removal. See Respondent’s Memorandum
at 8 (Mar. 14, 1994). Therefore, petitioner need only
establish that she was exercising valid rights of custody under
German law at the time of removal.
The Convention requires this court to look to German law to
determine whether petitioner had and was exercising valid custody
rights. Friedrich, 983 F.2d at 1402. And, in ascertaining
whether there has been a wrongful removal within the meaning of
Article 3, this court may take notice of the law of, and
judicial or administrative decisions in, the country of the
child’s habitual residence. Art. 14, Convention; 42 U.S.C.
11601(b)(2) and 11605. To that end, the court may direct
petitioner to obtain from German authorities a decision or other
determination that the removal was wrongful within the meaning of
Article 3. See Art. 15, Convention; 42 U.S.C. 11605.
Furthermore, the Central Authority of Germany may provide the
court with advice and assistance regarding pertinent German law.
See Art. 7(e) and (g), Convention; 42 U.S.C. 11605.
Petitioner has submitted ample proof that, under German law, she
had present rights to custody of the children at the time they
were removed to New Hampshire. The March 3, 1994, order issued
by the Family Court, District of Rockenhausen, declared that
respondent’s removal violated that court’s earlier custody
decree, thereby reaffirming petitioner’s custody rights under
German law. Both the opinion letter of Dr. Cramer and the
advisory notice of the German Central Authority support that
construction of German law (German Civil Code 1671 and 1672).
See Exhibits A and B to Petitioner’s “Documents Submitted,”
accompanying Petitioner’s Memorandum of Law Submitted 14 March
1994. This court declines to follow Dr. Merkel’s contrary
opinion.
Under German law, preliminary orders related to child custody
pending divorce remain in effect even when circumstances change,
unless and until the divorce petition is withdrawn, or the extant
orders are modified. See Exhibit B to “Documents Submitted,” Dr.
Cramer’s Opinion Letter at 3. Dr. Cramer’s opinion referenced,
and the court relies on, the following “well established decision
by the Highest Appellate Court of Bavaria of 1971”:
if parents move in again (meaning resume
marital cohabitation) a custody ruling does
not [lose] its legal effects. . . .
citing Civil Code, 1671 c.6 (53rd ed. Palandt-Diedrichsen 1994).
Respondent’s argument – that his reunion with petitioner
effectively nullified all outstanding custody orders issued by
the German courts – is incorrect.
Respondent also asserts that the German court decrees should not
be recognized under the Convention, because, he claims, they were
based on perjured testimony by petitioner. The German courts are
fully empowered to grant appropriate relief upon a showing of
fraud, and it would be inappropriate for this court to presume to
second-guess the determination made by those courts on the
merits, or to usurp the jurisdiction of those tribunals to
address the matter of fraud in the procurement of orders from
those courts. Any such review would be entirely outside the scope
of inquiry permitted under the Convention.
Nevertheless, even in the absence of outstanding German
custody orders, petitioner still had valid custody rights to the
children when they were removed because, under German law, both
parents retain joint rights of custody until a decree has been
entered limiting one parent’s rights. See Exhibits A and B to
“Documents Submitted”; see also Slagenweit v. Slagenweit, 841 F.
Supp. 264, 1993 U.S. Dist. LEXIS 18725 at * 9 (N.D.Iowa 1993).
Furthermore, the marital agreement between the parties which
purportedly granted respondent sole custody of the children is,
under German law, without legal effect until approved by court
order. See Exhibit B to “Documents Submitted,” ú Dr. Cramer’s
Opinion Letter at 3 (judge will scrutinize any private agreement
granting custody to the non-custodial parent). Thus, on January
28, 1994, petitioner held, at the least, a joint right to custody
of the children, independent of the existing custody orders.
Respondent “wrongfully removed” the children within the meaning
of the Convention, because he did so in breach of petitioner’s
rights of custody under German law. See Art. 3, Convention
(removal is wrongful if it breaches joint custody rights); see
also 42 U.S.C. 11603(f)(2) (removal is wrongful if it occurs
before entry of a custody order); accord Levesque, 816 F. Supp.
at 664 (any removal of a child by one of the joint holders
without the consent of the other is wrongful) (citing 51 Fed.Reg.
at 10506). Because petitioner has established by a preponderance
of the evidence that the children were “wrongfully removed” from
their habitual residence, the court is bound to order their
return to Germany, “unless one of the narrow exceptions set forth
_ Convention applies.” 42 U.S.C. 11601(a)(4); Art. 13,
Convention.
B. Exceptions to the Convention
Despite a showing of “wrongful removal,” the court is not bound
to order the children’s return if (1) petitioner was not actually
exercising her rights of custody at the time of removal or had
consented to or acquiesced in the removal, or (2) if extenuating
circumstances exist which would either present a “grave risk” of
harm to the children if they were returned, or would impose upon
them conditions that are antithetical to our own principles
relating to human rights and “fundamental freedoms.” Art. 13 and
20, Convention; 42 U.S.C. 5 11603(e)(2). Respondent failed to
demonstrate that any of the recognized exceptions apply.
1. The Marital Agreement
To avoid an order of return, respondent must persuade this court
by a preponderance of the evidence that petitioner was either not
exercising her rights of custody, or that she consented to or
acquiesced in the removal of the children to the United States.
42 U.S.C. 11603(e)(2)(B) . Respondent relies heavily on the
January 27 private custody agreement, as proof of petitioner’s
failure to “actually exercise” her rights of custody and her
concomitant tacit consent to the children’s removal. Article
13(a) of the Convention permits the court not to order return of
the children if:
the person. . .having the care of the person of
the child was not actually exercising the
custody rights at the time of the removal. . .
or had consented to or subsequently acquiesced
As discussed above, the agreement is without binding legal effect
under German law until approved by a German court. Without
conceding that point, respondent argues that the agreement
evidenced petitioner’s intent to relinquish her custody rights
and obligations, which should be construed as consent to or
acquiescence in the removal.
Neither contention is substantiated by the facts. Respondent was
well aware of petitioner’s continuing desire to retain custody;
he testified, and acknowledged by affidavit, that on January 28th
— the day he left Germany — he was concerned that petitioner
intended to take the children from him and assert sole custody.
See Respondent’s Affidavit, Para. 15 – 17 (Mar. 14, 1994). He
also conceded that he brought Laura with him when he called his
attorney to ensure that petitioner would not leave the apartment
with the children. After speaking with his attorney, respondent
immediately arranged to leave Germany with the children, and he
declined to tell petitioner of his plans or whereabouts. These
facts undermine his claim that petitioner abandoned her custody
rights or that she consented to or acquiesced in the children’s
removal. In re Ponath, 829 F. Supp. 363, 366, 368 (D.Utah 1993)
(court found consent where petitioner expressly permitted
respondent to return to Utah with their child and willingly
remained in Germany for six more months).
To the contrary, petitioner’s conduct establishes that she
affirmatively did not consent to or acquiesce in respondent’s
control over the children. She explicitly rescinded the custody
agreement before removal. She immediately invoked German legal
authority (obtaining a further custody order and pressing
criminal charges), and she promptly initiated action under the
Convention in Germany and in this court. Petitioner not only did
not consent to removal, she was undeniably attempting to
exercise her custody she could, to prevent removal. See
Levesque, 816 F. Supp. at 667 (under similar facts the court
concluded that whatever consent petitioner might have given had
been revoked by her subsequent conduct).
2. The Harm to the Children
Finally, respondent argues that returning the children to
petitioner would place them in grave risk of serious harm.
Nothing presented even remotely tends to establish, by clear and
convincing evidence, that the children’s “social background” in
Germany presents either a “grave risk. . . [of] physical or
psychological harm or otherwise place[s] the child[ren] in an
intolerable situation,” which would undermine the fundamental
freedoms our Constitution guarantees American citizens. See Art.
13(b) and 20; see also 42 U.S.C. 11603(e)(2)(A).
The evidence presented does not establish any serious risk that
either petitioner or anyone associated with her would jeopardize
her children’s welfare or place them in “grave risk” of physical
or psychological harm. Respondent suggested that petitioner’s
alleged depression prevented her from coping with the
responsibilities and decisions of married life, but there was no
evidence she ever failed the children or placed them in actual
danger. Petitioner’s estranged relationship with her parents is
likewise not evidence of her own parental inadequacies, and those
circumstances do not preclude the children’s return under Article
13(b) or 20 of the Convention. The court would note in passing
that petitioner’s mother accompanied her to this country to
provide support and assistance in effecting the children’s
return.
While this court is required to “evaluate the surroundings to
which the [children are] to be sent and the basic personal
qualities of those located there,” the court’s focus is limited
to the grave risk, if any, that situation seriously presents for
the children. See Tahan v. Duquette, 259 N.J. Super. 328, 335,
613 A.2d 486 (1992) (Art. 13 requires the court “to take into
account the information relating to the social background of the
child”). Respondent offered no credible evidence raising any
serious doubt about the safety, propriety, or nurturing character
of the German environment to which the children would return.
The exception is not applicable. 42 U.S.C. 11603(e)(2)(A).
The letter and spirit of the Convention obligate this court to
respect Germany’s authority to resolve the underlying custody
dispute to the same extent we rely upon German courts to respect
like custody decisions made by courts in the United States. See
Art. 1, 12, 16 and 19, Convention; 42 U.S.C. 11601(b)(4) and
11603(d). Respondent appears to be a caring and devoted father
who acted in what he believed to be his children’s best
interests. He is not foreclosed from pursuing those interests
and his rights to custody and visitation, but he is required to
do so in Germany, the country of his children’s habitual
residence.
CONCLUSION
The parties’ children, Laura and Collin Currier, are ordered
returned to Germany, in the custody of petitioner, under the
provisions of the Convention and ICARA.
On or before April 1, 1994, petitioner shall file a supported
motion for costs and fees as allowed by applicable law.
Respondent shall object, or otherwise respond, on or before April
15, 1994. Both parties have informally advised the court of
their desire to seek appellate review of an adverse decision.
Recognizing that immediate return of the parties’ children
to Germany may effectively moot any appeal from this order, the
court, in aid of appellate jurisdiction, hereby stays this order
until 5:00 p.m. on March 23, 1994, at which time it shall be
effective, unless stayed or otherwise modified by the United
States Court of Appeals for the First Circuit or other court of
competent jurisdiction. Petitioner’s passport and the children’s
passports shall remain with the Clerk until this order takes
effect. This court’s prior order awarding temporary custody to
petitioner shall remain in effect during the stay, and petitioner
shall not remove the children from this jurisdiction until this
order does take effect.
SO ORDERED.
/s/ Steven J. McAuliffe
______________________
Steven J. McAuliffe
United States District Judge
March 16, 1994
cc: Honey Hastings, Esq.
Ruth P. Gulick, Esq.
——————–
1. Both the United States and Germany are among the signatories
to the Convention.