USA – FEDERAL – FRIEDRICH – 1991 (1991) (Return denied) FRIEDRICH v FRIEDRICH. Mother removes child from Germany. Father applies for return under the Hague Treaty and ICARA. The return is denied. (See next case)
Friedrich v Friedrich (So.Div. Ohio 1991)No. C-1-91-651
1 International Abduction [USA 1994]
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
IN RE THE APPLICATION OF
EMANUEL FRIEDRICH,
Petitioner
v. C-1-91-651
JEANA MICHELE FRIEDRICH, et al.,
Respondents
Date: 28 Apr 1994
ORDER
001 Petitioner Emanuel Friedrich, a citizen and resident of
Germany, brings this action under the International Child
Abductions Remedies Act, 42 U.S.C. 11601-11610, which
implemented the Hague Convention on the Civil Aspects of
International Child Abduction (the Hague Convention). The
United States Court of Appeals for the Sixth Circuit remanded
this action for determination of whether under German law Or.
Friedrich had custody rights over his son Thomas at the tome
of Thomas removal from Germany, and for consideration of any
affirmative defenses raised by respondent Jeana Michele
Friedrich. Friedrich v. Friedrich, 983 F.2d 1396, 1398, 1403
(6th Cir. 1993). Respondent is Thomas’s mother, a citizen of
the United States, and a resident of the Southern District of
Ohio
002 This matter is before the Court upon the parties’ joint
stipulation of evidence (doe. no. 47), and the parties’ trial
briefs (doc. nos. 52, 54, 57). On March 11, 1994, this Court
held an evidentiary hearing during which the parties presented
testimony and submitted depositions.
I. FN 01
003 Mr. Friedrich has the burden of showing by a
preponderance of the evidence that the removal of Thomas from
Germany was “Wrongful” within the meaning of the Hague
Convention. Friedrich, 983 F.2d at 1400. FN 02 The inquiry
in whether, under German law, Mr. Friedrich had custody rights
over Thomas at the time of his removal from Germany, and
whether Mr. Friedrich wan exercising those rights or would
have exercised those rights but for the removal. Id. at 139B,
1403.
004 This Court must examine Mr. Friedrich’s custody rights
under German law FN 03 — not to resolve the merits of the
parties’ underlying claims to custody — but to determine
whether the removal violated the Hague Convention. Id. at
1400.
005 Under German law each parent has the right and duty to
care for the minor child. “The parents shall exercise the
parental care as a personal responsibility and by mutual
consent for the benefit of the child. In cases of differences
of opinion they must attempt to come to terms.’ (doc. no. 47,
Exh. 1, 1627).
006 German law provides for termination of a parent’s right
to care for the minor child only in limited circumstances.
For example, if the parents become divorced or separated, the
Family Court determines which parent has custody of the child.
Id. at 1671(1), 1672. When one parent “is incompetent to
enter legal transactions…,” his or her parental rights are
suspended. Id. at 1673(1). If a parent jeopardizes the
child’s “physical, emotional or spiritual welfare…, the
Guardianship Court has the authority to retake steps necessary
for the elimination of the jeopardy.” Id. at 1666(1).
007 It is undisputed that prior to the argument between Mr.
and Mrs. Friedrich on July 27, 1991, Mr. Friedrich’s status as
Thomas’s father gave him custody rights under German law
including the right and duty to care for Thomas. Mr. Friedrich
did not terminate or abandon his custody rights during the
argument on July ?7, 1991. Although Mr. Friedrich ordered
Mrs. Friedrich to leave the apartment with Thomas and placed
their belongings into the hall, these acts did not terminate
his parental rights under German law. see 983 F.2d at 1399.
The parties have presented no provision of German law under
which a parent unilaterally terminates or abandons his custody
rights by ordering his spouse and child from the family home.
Even in cases where parents become formally separated or
divorced, which had not occurred here on July 27, 1991, German
law requires the Family Court to determine custody rights. It
is undisputed that no such Judicial determination existed in
this case on July 27, 1991.
008 During the period between July 27, 1991 and August 1,
1991, FN 04 Mr. Friedrich did not terminate or abandon his
parental rights under German law. The parties dispute the
amount Mr. Friedrich assisted Mrs. Friedrich in obtaining
housing after July 27 and whether Mr. Friedrich offered to
move out of the apartment. Mrs. Friedrich emphasizes that Mr.
Friedrich did not provide any daily care for Thomas during
this period. She contends that Mr. Friedrich acquiesced in the
removal of Thomas from Germany as Indicated by his statements
to Captain Michael Farley, the Commander of the United states
Army Base at Bad Albing, Germany, where Mrs. Friedrich was
stationed. Captain Farley states that Mr. Friedrich admitted
he did not want custody of Thomas and could not care for
Thomas as a single parent.
009 Mr. Friedrich has met his burden of showing by a
preponderance of the evidence that he was actually exercising
his custody rights over Thomas and that he did not terminate
or abandon his custody rights between July 27, 1991 and August
1, 1991. Mr Friedrich remained in contact with Mrs. Friedrich
and with Thomas during this period and did not exhibit an
intention or a willingness to terminate his parental rights.
He telephoned Mrs. Friedrich on July 29 to arrange a visit
with Thomas. The visit occurred during the afternoon of July
29. Mr. and Mrs. Friedrich met “at least twice to discuss
their separation and Thomas’s welfare.” 983 F.2d at 1399.
“Although they gave conflicting accounts of the meeting, both
stated that plans were made for Mr. Friedrich to visit Thomas
within the next week.” Id. at 1402. Under these circumstances
and given the lack of a German Court Order terminating Mr.
Friedrich’s custody rights prior to the removal, Mr. Friedrich
was actually exercising his custody rights over Thomas or
would have exercised his custody rights but for the removal.
010 Accordingly, Mr. Friedrich has satisfied his burden of
demonstrating by a preponderance of the evidence that the
removal of Thomas from Germany on August 1, 1991 was wrongful
within the meaning of the Hague Convention.
III.
011 Since Mr. Friedrich has established that the removal of
Thomas from Germany was wrongful, the burden shifts to Mrs.
Friedrich to establish any affirmative defenses. Friedrich,
983 F.2d at 1400.
012 Four affirmative defenses to wrongful removal exist under
the convention. FN 05 Mrs. Friedrich relies on the first of
these defenses contending that if Thomas is returned to
Germany, a grave risk exists that he will be exposed to
psychological harm or an intolerable situation. To establish
this affirmative defense, Mrs. Friedrich must establish the
existence of a grave risk by clear and convincing evidence.
983 F.2d at 1400.
013 Mrs. Friedrich argues that the testimony of Dr. Edward
Blaske demonstrates that moving Thomas back to Germany after
living in Ironton, Ohio for the past 2 1/2 years will cause
him grave psychological harm. Mrs. Friedrich contends, “This
Court and these parties cannot escape the fact that the most
significant part of this young boy’s life, of which he knows
about, has occurred in Ironton, Ohio, with his mother and
unfortunately without his father. Drastically altering Tommy
present situation by ordering his return to Germany, to the
exclusion of his mother, can only result in disaster for this
child.” (doc. no. 52, p. 6)
014 Mr. Friedrich challenges Dr. Blaske’s opinion on the
ground that the evaluation of Thomas was incomplete in
numerous respects.
015 The Court finds that Mrs. Friedrich has not established
by clear and convincing evidence that returning Thomas to
Germany will expose him to a grave risk of psychological harm.
016 Dr. Blaske testified that Thomas appeared to be a happy
child whose primary relationship is with his mother. He is
close to his uncle, Mrs. Friedrich’s brother, and his maternal
grandparents, who live in Ironton, Ohio. When asked about what
effect a separation from his mother would have on Thomas, Dr.
Blaske responded, “The probabilities are extremely high that
he would experience severe trauma, and it would put him at
considerable psychological risk to nurture healthy
developmental emotions and behaviors.” (Blaske dep., p. 29).
Dr. Blaske describes the likely loss Thomas will experience if
he returns to Germany without his mother as follows:
[Thomas] definitely would experience the loss of
his mother… if he were to be removed to Germany.
That would be a considerable loss .
And there then would be the probabilities of anger
both towards his mother, who it might appear that
she has abandoned hem, and towards the father for
creating that abandonment. That abandonment, fear
is directly related to the anxiety and that could
be plenty enough springboard for other
developmental or emotional restrictions which could
include nightmares, antisocial behavior, a whole
host of anxious-type behaviors.
* * * *
To the best of our abilities, all the ingredients
are there to suggest higher probabilities that
these things would occur.
Id. at 28-29. Dr. Blaske also describes the effects of a
separation on Thomas as a “grave psychological wrong.” Id. at
27-28.
017 Dr. Blaske’s testimony constitutes some evidence of a
risk of psychological harm to Thomas if he is separated from
his mother. Dr. Blaske’s opinion, however, does not amount to
clear and convincing evidence that a grave risk of
psychological harm to Thomas will exist if he is returned to
Germany. It is the separation of Thomas from his mother that
is of concern to Dr. Blaske not Thomas return to Germany. Dr.
Blaske’s characterization of the risk to Thomas as a high
probability is based more on his conclusions regarding
relevant psychology “literature” than upon an articulated
analysis of accepted psychological principles applied to the
specific facts of the instant case, see id. at 24, 26-27, as
he does not specialize in treating children Thomas’s age but
instead refers them to someone who specializes in “child
therapy.” Id. at 31-32. Dr. Blaske’s experience and practice
is generally with older children, adolescents’ or adults. WMH
FN 01
018 Dr. Blaske did not interview or evaluate Mr. Friedrich
and because of this omission, his conclusions are not based on
an evaluation of the total situation Thomas will encounter if
he returns to Germany. This omission is significant in the
instant case because Mr. Friedrich testified that Thomas
reacted positively to him during a recent visit and because
the record contains evidence that Mr. Friedrich will be able
to provide Thomas with a safe, loving home in Germany.
019 Blaske’s testimony is therefore insufficient to establish
by clear and convincing evidence a grave risk of psychological
harm to Thomas if he in returned to Germany. This court
reemphasizes it has no authority to determine custody.
020 Mrs. Friedrich points to the dissent in In re Marriage
of: Ieroniamkis, 831 P.2d 172 (Wash. 1992) (doc. no. 52, Exh.
8), which found that a grave risk of harm to the children
would exist if they were returned to Greece. The dissent
concluded:
[T]o return the children to Greece would place them
in an intolerable situation, given the history of
domestic violence, given these children’s close
bonding with their mother and given the lack of any
assurance that to return the children to Greece
will not cause them to lose the companionship of
their mother, perhaps for all the remainder of
their childhoods. Any such lose of their mother’s
companionship would irrefutably cause these
children grave psychological harm.
Id. at 195,
021 The record in the instant case does not demonstrate by
clear and convincing evidence that Thomas will be exposed to a
grave risk of harm similar to that faced by the children in
Ieroniamkis. There in no evidence that Thomas has been
physically abused or that if he returns to Germany he will be
deprived of Mrs. Friedrich’s companionship for the remainder
of his childhood. Mr. Friedrich’s testimony tends to show that
Thomas will experience a safe home environment in Germany. Mr.
Friedrich has obtained unlimited leave from work in order to
help Thomas adjust. Mr. Friedrich’s mother has agreed to care
for Thomas when Mr. Friedrich is working. WMH FN02 Mr.
Friedrich testified that Thomas will be surrounded by American
children and that he will have access to English-language
television. If Thomas lives in Mr. Friedrich’s apartment, he
will have a bedroom of his own. The apartment is located in a
quiet neighborhood which is surrounded by farmland and
forests. Mr. Friedrich lives only a short walk from his
parents’ home.
022 This is not to denigrate Thomas’s present home life in
Ironton, Ohio. Thomas is now four years and four months old.
He had lived in Ironton, Ohio since his removal from Germany.
He currently lives with Mrs. Friedrich in a three bedroom
trailer near the home of Mrs. Friedrich’s parents. Mrs
Friedrich has provided Thomas with a comfortable home where he
is very well cared for and loved by many family members.
People in the Ironton community, especially members of Mrs.
Friedrich’s church, know Thomas and enjoy seeing him and
playing with him.
023 Despite these facts, the Hague Convention requires the
return of Thomas to Germany. This Court may not weigh the
equities or attempt to resolve the underlying custody rights
as part of its analysis of whether a violation of the Hague
Convention has occurred. 983 F.2d at 1400. The record does not
contain clear and convincing evidence of a grave risk of harm
to Thomas because of his return to Germany.
024 Accordingly, Mrs. Friedrich has not met her relatively
high burden of showing by clear and convincing evidence that
returning Thomas to Germany will expose him to a grave risk of
psychological harm. Lacking proof of any other affirmative
defense, the Court concludes that Thomas was wrongfully
removed from Germany within the meaning of the Hague
Convention and that Thomas must therefore be returned to
Germany.
ORDER
025 The Court ORDERS that the petitioner’s request for the
return of Thomas Friedrich to Germany pursuant to the Hague
Convention an implemented in the International Child
Abductions Remedies Act, 42 U.S.C. 11601-11610 is GRANTED.
026 The parties, the United States of America, Emanuel
Friedrich, and Jeana Michele Friedrich, have agreed in open
court that Mrs. Friedrich will retain physical control of
Thomas and will return Thomas to Germany forthwith at her own
expense. The bond established previously in this matter shall
be continued with the additional condition that Mrs. Friedrich
will comply with her agreement to return Thomas to Germany
forthwith.
027 The case is terminated on the docket of this Court.
IT IS SO ORDERED.
Comments by Wm. M. Hilton
WMH FN01 By implication the court finds that any trauma to
the child caused by the separation should be laid at
the feet of Mrs. Freidrich since it would be because
she would not accompany the child to Germany.
The English courts, in C v C (Abduction; Rights of
Custody) (UK 1989) [1989] 2 All ER 465, when ruling
on an Art. 13(b) defense on this issue of the effect
of separating a child from a parent, held the
following:
“The grave risk of harm arises not from the return
of the child, but the refusal of the mother to
accompany him. The Convention does not require the
court in this country to consider the welfare of the
child as paramount, but only to be satisfied as to
the grave risk of harm. I am not satisfied that the
child would be placed in an intolerable situation,
if the mother refused to go back. In weighing up
the various factors, I must place in the balance and
as of the greatest importance the effect of the
court refusing the application under the Convention
because of the refusal of the mother to return for
her own reason, not for the sake of the child. Is a
parent to create the psychological situation, and
then rely upon it? If the grave risk of
psychological harm to a child is to be inflicted by
the conduct of the parent who abducted him, then it
would be relied upon by every mother of a young
child who removed him out of the jurisdiction and
refused to return. It would drive a coach and four
through the Convention, at least in respect of
applications relating to young children. I, for my
part, cannot believe that this is in the interests
of international relations. Nor should the mother,
by her own actions, succeed in preventing the return
of a child who should be living in his own country
and deny his contact with his other parent.”
Similarly the Swiss Courts, in Korowin v Korowin
(Switzerland 1992) No. 4891072U/ER4SV/ez, 1
International Abduction [SWITZERLAND 1992], held
that:
“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).”
A contra view of this issue was set forth in Steffen
F v Severina P. (D.Ariz. 1997) 966 F.Supp. 922,
where the court held that “unbonding” the child from
the mother, who refused to return with the child,
would case grave risk to the child.
In light of the great weight of decisions prior to
Steffen F., it is felt, with due respect, that this
case is an anomaly and should not be given any
significant weight. This is particularly true since
this issue was, by implication, considered and
recjectd in Friedrich II.
WMH FN02 The California Supreme Court, in Burchard v Garay
(Cal. 1986) 42 Cal.3d 531 [724 P.2d 486], made the
following comments about day care, at 539 – 540
(Foot Notes Omitted):
“The court also referred to the fact that Ana worked
and had to place the child in day care, while
William’s new wife could care for the child in their
home. But in an era when over 50 percent of mothers
and almost 80 percent of divorced mothers work, the
courts must not presume that a working mother is a
less satisfactory parent or less fully committed to
the care of her child. A custody determination must
be based upon a true assessment of the emotional
bonds between parent and child, upon an inquiry into
“the heart of the parent-child relationship . . .
the ethical, emotional, and intellectual guidance
the parent gives to the child throughout his
formative years, and often beyond.” (In re Marriage
of Carney, supra, 24 Cal.3d 725, 739.) It must
reflect also a factual determination of how best to
provide continuity of attention, nurturing, and
care. It cannot be based on an assumption,
unsupported by scientific evidence, that a working
mother cannot provide such care–an assumption
particularly unfair when, as here, the mother has in
fact been the primary caregiver.”
FOOTNOTES
——————–
1.
The factual background of this case in set forth in
this court’s previous Order (doc. no. 28), and in the
Court of Appeals’ opinion, 983 F.2d at 1398-99.
2. Article 3 of the Hague convention provides that 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 the removal or retention those
rights were actually exercised or would have been
exercised but for the removal or retention.
983 F.2d at 1400
3. German law applies to determine Mr. Friedrich’s custody
rights because it is the law of the case that at the
time of Thomas’ removal from Germany, his habitual
residence was Germany. 983 F.2d at 1402.
4. Mrs. Friedrich removed Thomas from Germany on August 1,
1991. 963 F.2d at 1399.
5. When one party establishes a wrongful removal under the
Hague Convention, the burden shifts to the other party
to show:
(1) by clear and convincing evidence that there in a
grave risk that the return of the child would expose
the child to physical or psychological harm;
(2) by clear and convincing evidence that the return of
the child would not be permitted by the principals of
the requested State relating to the protection of human
rights and fundamental freedoms;
(3) by a preponderance of the evidence that the
proceeding were commenced more than one year after the
abduction and the child has become settled in its new
environment; or
(4) by a preponderance of the evidence that Mr.
Friedrich was not actually exercising the custody right
at the time of removal or retention, or had consented
to or subsequently acquiesced in the removal or
retention.
983 F.2d at 140 (citations omitted).