UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
IN RE THE APPLICATION OF
EMANUEL FRIEDRICH,
Petitioner
v. C-1-91-651
JEANA MICHELE FRIEDRICH, et al
Respondents
ORDER
Petitioner Emanuel Friedrich, a legal resident and a citizen
of the Federal Republic of Germany, brings this action under the
Convention on the Civil Aspects of International Child Abduction
(The Convention) (attached as Appendix A) as implemented by the
United States Congress in the International Child Abduction
Remedies Act, 42 U.S.C. Secs. 11601-11610. Petitioner seeks the
return of his minor son Thomas to Germany. He alleges that his
wife Jeana Michele Friedrich, a citizen of the United States of
America, removed their son Thomas from Germany and took him to the
United States without petitioner’s consent. Respondents are Jeana
Friedrich and her parents, Shirley Harper and David Harper, all of
whom are legal residents of the Southern District of Ohio.
This matter is before the Court following an evidentiary hearing
held on October 16, 1991. The parties have submitted proposed
findings of fact and conclusions of law (doc. nos. 26, 27).
This Court has jurisdiction over the petition pursuant to 42
U.S.C. Sec. 11603(a).
Relevant Facts
In December 1989, petitioner and respondent Jeana Friedrich,
were married at Bad Aibling, Federal Republic of Germany. At that
time, Jeana Friedrich was a member of the United States Army
stationed in Bad Aibling and was at all times a citizen and legal
resident of the United States. Petitioner was employed on the
military base in Bad Aibling as a club manager and bartender. He
was at all times a citizen and legal resident of the Federal
Republic of Germany.
On December 29, 1989, the Friedrichs’ only child, Thomas
David Friedrich, was born in Bad Aibling. During 1990 and early
1991, Thomas Friedrich was with both of his parents in Bad
Aibling.
Soon after the Friedrichs were married they began
experiencing marital problems, and in June 1990 they informally
separated for the first time. This separation lasted one weekend.
The Friedrichs informally separated for a second time in
March 1991. For several weeks during this separation petitioner
and his parents retained physical possession of Thomas, and Jeana
Friedrich was billeted at the United States military base in Bad
Aibling. In early May 1991 the Friedrichs agreed that Thomas
would accompany Jeana Friedrich on a ten-day visit to her parents’
home in Ironton, Ohio. On or about May 19, 1991, Jeana Friedrich
returned to Germany with Thomas, and the Friedrichs reunited. From
this time until late July 1991, the Friedrichs jointly exercised
parental rights over Thomas.
On the evening of July 27, 1991, Emanuel and Jeana Friedrich
had a serious argument in their apartment. During this argument,
Emanuel Friedrich ordered Jeana Friedrich to leave the apartment
with Thomas, and he physically threw clothing, personal items, and
some of Thomas’s toys out of the apartment and into the hall.
The following day Jeana Friedrich obtained assistance from
her United States Army Commanders and friends who helped her move
Thomas and their belongings to the on-base visiting quarters where
she temporarily lived with Thomas from July 28, 1991 to August 1,
1991. Jeana Friedrich was forced to pay for these accommodations.
In the interim period, she sought other less expensive living
arrangements for herself and her son since she could not afford
the unexpected expenses. Jeana Friedrich’s Commanders assisted her
in this endeavor, but no off-base accommodations were available
for both her and Thomas. Under military regulations Jeana
Friedrich could not live in the barracks on the base with her son;
she could only live there by herself.
Jeana Friedrich concluded that she had nowhere to live with
her son in Germany, and she also concluded that her only recourse
was to return to the United States and seek assistance from her
parents. She had no other reasonable recourse but to beseech her
parents in Ohio to house Thomas until she could arrange an
emergency discharge from the Army and return to Ironton, Ohio. On
August 1, 1991, therefore, Jeana Friedrich left Germany with her
son without petitioner’s permission, consent, or knowledge. Jeana
and Thomas Friedrich arrived in Ironton, Ohio on August 2, 1991.
Jeana Friedrich initiated a divorce action in Lawrence
County, Ironton, Ohio on August 9, 1991, and the Court issued a
Letter Rogatory to the appropriate German authorities, in an
attempt to effect service of process upon petitioner. Petitioner
claims that he did not receive the letter or any notice of the
judicial proceedings in Lawrence County.
On August 11, 1991, Jeana Friedrich returned to Germany
without her son and immediately sought an emergency discharge from
the United States Army.
At some point, petitioner filed a claim in Germany seeking to
obtain parental custody of Thomas. On August 22, 1991, a Municipal
Court-Family Court in Rosenheim, Germany granted petitioner
parental custody of Thomas. Jeana Friedrich neither attended nor
received notice of the judicial proceedings in Germany.
On August 25, 1991, Jeana Friedrich found a document taped to
her barracks door. The document was a copy of a German Court
Order, typed in the German language, with no English translation,
which indicated that Emanuel Friedrich had been awarded temporary
custody of Thomas and ordered his immediate return from the United
States to Germany.
On August 28, 1991, the Lawrence County, Ohio, Court of
Common Pleas issued a temporary custody order in favor of Jeana
Friedrich and ordered the child not be removed from Ohio until
further Order of the Court.
On September 15, 1991, the United States Army discharged
Jeana Friedrich from military service. She then returned to her
parents’ home in Ironton, Ohio.
Petitioner filed the instant action on September 23,
1991. On October 16, 1991, following a hearing on the merits of
the petition, this Court Ordered respondents to file a real estate
property bond conditioned that they would obey the orders of this
Court and they would assure the remaining presence of Thomas
Friedrich in the Southern District of Ohio. Respondents complied
with that Order on October 25, 1991 (doc. no. 19).
OPINION
Petitioner argues that under The Convention, he is entitled
to an Order directing respondents to return Thomas Friedrich to
Germany. He contends that the removal of Thomas Friedrich from
Germany was “wrongful” within the meaning of Articles 3 and 5 of
the Convention because at the time of removal, he was exercising
parental custody rights over Thomas.
Respondents argue that petitioner has not met his burden of
proving that Thomas Friedrich was wrongfully removed or retained
from Germany because petitioner was not actually exercising his
parental custody rights and was in no way caring for Thomas at the
time of removal.
“The Convention’s goal is to curb international abductions of
children by divorced or divorcing parents by providing judicial
remedies to those seeking the return of a child who has been
wrongfully removed or retained within the meaning of the
Convention.” In the Matter of Mohsen 715 F.Supp. 1063, 1064
(D. Wyo. 1989); see also 42 U.S.C. Sec. 11601.
Petitioner bears the initial burden of proving, by a
Preponderance of the evidence, that Jeana Friedrich wrongfully
removed or retained Thomas. See Chp. I, Art. 3; Chp. III, Arts.,
8, 13; see also 42 U.S.C. Sec. 11603(e)(1); Meredith v. Meredith,
759 F. Supp. 1432, 1434 (D. Ariz. 1991).
The removal or retention of a child is 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 subparagraph (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.
Chp.I, Art. 3.
The term “habitual residence” is not specifically defined by
the Convention and must therefore be determine by reference to the
facts and circumstances presented in each case. Meredith, 759
F.Supp. at 1434.
In determining whether a wrongful removal occurred, this
Court “shall not decide … the merits of rights of custody…”
Chp. III, Art. 16.; see also Meredith, 759 F.Supp. at 1434. “The
sole fact that a decision relating to custody has been given or is
entitled to recognition in the requested State shall not be a
ground for refusing to return a child under this Convention, but
[this Court] may take account of the reasons for that decision in
applying this Convention.” Chp. III, Art. 17.
Petitioner has not established that he is entitled to an
Order for the return of his son under the Convention. Although on
direct examination petitioner denied throwing his wife’s
belongings and some of Thomas’s toys into the hall on July 27,
1991, he admitted on cross examination that he moved some items
into the hall, including “parts” of some toys. Given this
admission, it is clearly established that petitioner expelled
Jeana and Thomas Friedrich from their residence on July 28, 1991.
By unilaterally expelling Thomas from his residence on July 28,
1991, petitioner terminated his actual exercise of his parental
custody rights over Thomas. Consequently, when Jeana Friedrich
took Thomas to the United States without petitioner’s knowledge or
consent, she did not wrongfully remove Thomas from Germany within
the meaning of the convention. See Chp. I, Art. 3(b).
The petition also lacks merit because by expelling Thomas
from the Friedrichs’ home on July 28, 1991, petitioner altered
Thomas’s habitual residence from his in Germany to that of his
mother in the United States. This is so because petitioner’s acts
forced Jeana Friedrich to obtain housing for Thomas on property in
the control of United States, the United States military base in
Bad Aibling, and forced her to return to the United States to find
housing for Thomas. Under these circumstances, Thomas’s habitual
residence became the United States on July 28, 1991, at the time
petitioner ordered his wife and child out of their home, thereby
rendering relief under the Convention unavailable to petitioner.
See Chp. I, Art. 3(a).
In determining the issues presented by the petition, this
Court declines, under Chapter III, Article 17 of the Convention,
to give effect to the Court Orders entered in either the United
States or Germany. This Court also makes no determination on the
merits of the underlying custody dispute between the parties. See
Chp. III, Art. 16. The Court finds that the only feasible plan
submitted by the central authorities or the parties for the care
of Thomas pending the determination of his status by the parties
or by a court with jurisdiction over the custody dispute, is to
maintain the present status quo. The Court further finds, based on
the record before it, that maintaining the status quo is in the
best interests of the child. See Chp. I, Art. 1; 42 U.S.C. Sec.
11601.
Accordingly, the Court hereby ORDERS that petitioner Emanuel
Friedrich’s First Amended Complaint for return of child to
petitioner (doc. no. 8), is hereby DENIED. In order to assure the
presence of Thomas Friedrich within this Court’s jurisdiction and
to assure that respondents will obey the orders of this Court, the
Court further ORDERS respondents’ property bond to remain in
effect until the time for filing an appeal of this Order has
lapsed or until all appeals of this Order are resolved. The Court
hereby ORDERS respondents to keep Thomas within the jurisdiction
of this Court in the Southern District of Ohio until further Order
of this Court. This matter is otherwise TERMINATED on the docket
of this Court.
IT IS SO ORDERED.
/s/ Herman J. Weber
Herman J. Weber, Judge
United States District Court
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This decision has been reversed by Friedrich v. Friedrich
(6th Cir. 1993) 983 F.2d 1396