USA – FEDERAL – FRIEDRICH – 1996 (return ordered) FRIEDRICH v FRIEDRICH. This is the second time before the Court of Appeals. The court affirmed the decision of the District Court and order that the child was wrongfully removed from Germany and should be returned. The court also vacated the stay issued by the District Court. SIZE=”-1″ Note by DCT: the above case, Friedrich v Friedrich is often used as a guide to how the Hague Convention should work. Many courts refer to the decisions made in Friedrich v Friedrich.
Friedrich v Friedrich (6th Cir. 1996)78 F.3d 1060
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Emanuel FRIEDRICH, Plaintiff-Appellee
v.
Jeana Michele FRIEDRICH, Defendant-Appellant,
David Harper and Shirley Harper, Defendants.
No. 94-3832.
United States Court of Appeals, Sixth Circuit.
Decided and Filed March 13, 1996.
ON APPEAL from the United States District Court for the Southern
District of Ohio
Before: KEITH, BOGGS, and SILER, Circuit Judges.
BOGGS, Circuit Judge.
For the second time, we address the application of the Hague
Convention on the Civil Aspects of International Child Abduction
(“the Convention”) and its implementing legislation, the
International Child Abduction Remedies Act (“the Act”), 42 U.S.C.
ss 11601-11610, to the life of Thomas FRIEDRICH, now age six. We
affirm the district court’s order that Thomas was wrongfully
removed from Germany and should be returned.
I
Thomas was born in Bad Aibling, Germany, to Jeana FRIEDRICH, an
American service woman stationed there, and her husband, Emanuel
FRIEDRICH, a German citizen. When Thomas was two years old, his
parents separated after an argument on July 27, 1991. Less than a
week later, in the early morning of August 2, 1991, Mrs. FRIEDRICH
took Thomas from Germany to her family home in Ironton, Ohio,
without informing Mr. FRIEDRICH. Mr. FRIEDRICH sought return of
the child in German Family Court, obtaining an order awarding him
custody on August 22. He then filed this action for the return of
his son in the United States District Court for the Southern
District of Ohio on September 23.
We first heard this case three years ago. Friedrich v. Friedrich,
983 F.2d 1396 (6th Cir.1993) (“FRIEDRICH I “). At that time, we
reversed the district court’s denial of Mr. Friedrich’s claim for
the return of his son to Germany pursuant to the Convention. We
outlined the relevant law on what was then an issue of first
impression in the federal appellate courts, and remanded with
instructions that the district court determine whether, as a
matter of German law, Mr. Friedrich was exercising custody rights
to Thomas at the time of removal. We also asked the district
court to decide if Mrs. Friedrich could prove any of the four
affirmative defenses provided by the Convention and the Act.
Thomas, meanwhile, remained with his mother and his mother’s
parents in Ohio.
On remand, the district court allowed additional discovery and
held a new hearing. The court eventually determined that, at the
time of Thomas’s removal on August 1, 1991, Mr. Friedrich was
exercising custody rights to Thomas under German law, or would
have been exercising such rights but for the removal. The court
then held that Mrs. Friedrich had not established any of the
affirmative defenses available to her under the Convention. The
court ordered Mrs. Friedrich to return Thomas to Germany
“forthwith,” but later stayed the order, upon the posting of a
bond by Mrs. Friedrich, pending the resolution of this appeal.
[FN1] Mrs. Friedrich’s appeal raises two issues that are central
to the young jurisprudence of the Hague Convention. First, what
does it mean to “exercise” custody rights? Second, when can a
court refuse to return a child who has been wrongfully removed
from a country because return of the abducted child would result
in a “grave” risk of harm?
In answering both these questions, we keep in mind two general
principles inherent in the Convention and the Act, expressed in
Friedrich I, and subsequently embraced by unanimous federal
authority. First, a court in the abducted-to nation has
jurisdiction to decide the merits of an abduction claim, but not
the merits of the underlying custody dispute. Hague Convention,
Article 19; 42 U.S.C. s 11601(b)(4); Friedrich
F.2d at 1400; Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir.1995);
Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir.1995); Journe v.
Journe, 911 F.Supp. 43 (D.P.R.1995). Second, the Hague Convention
is generally intended to restore the pre-abduction status quo and
to deter parents from crossing borders in search of a more
sympathetic court. Pub. Notice 957, 51 Fed.Reg. 10494, 10505
(1986); Friedrich I, 893 F.2d at 1400; Rydder, 49 F.3d at 372;
Feder, 653 F.3d at 221; Wanninger v. Wanninger, 850 F.Supp. 78,
80 (D.Mass.1994).
II
The removal of a child from the country of its habitual residence
is”wrongful” under the Hague Convention if a person in that
country is, or would otherwise be, exercising custody rights to
the child under that country’s law at the moment of removal.
Hague Convention, Article III. The plaintiff in an action for
return of the child has the burden of proving the exercise of
custody rights by a preponderance of the evidence. 42 U.S.C. s
11603(e)(1)(A). We review the district court’s findings of fact
for clear error and review its conclusions about American,
foreign, and international law de novo. See Fed.R.Civ.P. 41.1 (a
district court’s determination of foreign law should be reviewed
as a ruling on a question of law); Seetransport Wiking Trader
Schiffahrtsgesellschaft Mbh & Co. v. Navimpex Centrala Navala, 29
F.3d 79, 81 (2d Cir.1994) (reviewing question of foreign law de
novo ); Echeverria-Hernandez v. I.N.S., 923 F.2d 688, 692 (9th
Cir.1991) (reviewing question of international law de novo).
The district court held that a preponderance of the evidence in
the record established that Mr. Friedrich was exercising custody
rights over Thomas at the time of Thomas’s removal. Mrs.
Friedrich alleges that the district court improperly applied
German law. Reviewing de novo, we find no error in the court’s
legal analysis. Custody rights “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 the State.” Hague Convention, Article 3. German law
gives both parents equal de jure custody of the child, German
Civil Code 1626(1), and, with a few exceptions, this de jure
custody continues until a competent court says otherwise. See
Currier v. Currier, 845 F.Supp. 916, 920 (D.N.H.1994) (“under
German law both parents retain joint rights of custody until a
decree has been entered limiting one parent’s rights”);
Wanninger, 850 F.Supp. at 78 (D.Mass.1994).
Mrs. Friedrich argues that Mr. Friedrich “terminated” his custody
rights under German law because, during the argument on the
evening of July 27, 1991, he placed Thomas’s belongings and hers
in the hallway outside of their apartment. The district court
properly rejected the claim that these actions could end parental
rights as a matter of German law. We agree. After examining the
record, we are uncertain as to exactly what happened on the
evening of July 27, but we do know that the events of that night
were not a judicial abrogation of custody rights. Nor are we
persuaded by Mrs. Friedrich’s attempts to read the German Civil
Code provisions stipulated to by the parties in such a way as to
create the ability of one parent to terminate his or her custody
rights extrajudicially. [FN2]
Mrs. Friedrich also argues that, even if Mr. Friedrich had custody
rights under German law, he was not exercising those custody
rights as contemplated by the Hague Convention. She argues that,
since custody rights include the care for the person and property
of the child, Mr. Friedrich was not
rights because he was not paying for or taking care of the child
during the brief period of separation in Germany.
The Hague Convention does not define “exercise.” As judges in a
common law country, we can easily imagine doing so ourselves. One
might look to the law of the foreign country to determine if
custody rights existed de jure, and then develop a test under the
general principles of the Hague Convention to determine what
activities–financial support, visitation–constitute sufficient
exercise of de jure rights. The question in our immediate case
would then be: “was Mr. Friedrich’s single visit with Thomas and
plans for future visits with Thomas sufficient exercise of
custodial rights for us to justify calling the removal of Thomas
wrongful?” One might even approach a distinction between the
exercise of “custody” rights and the exercise of “access” or
“visitation” rights. [FN3] If Mr. Friedrich, who has de jure
custody, was not exercising sufficient de facto custody, Thomas’s
removal would not be wrongful.
We think it unwise to attempt any such project. Enforcement of
the Convention should not to be made dependent on the creation of
a common law definition of “exercise.” The only acceptable
solution, in the absence of a ruling from a court in the country
of habitual residence, is to liberally find “exercise” whenever a
parent with de jure custody rights keeps, or seeks to keep, any
sort of regular contact with his or her child.
We see three reasons for this broad definition of “exercise.”
First, American courts are not well suited to determine the
consequences of parental behavior under the law of a foreign
country. It is fairly easy for the courts of one country to
determine whether a person has custody rights under the law of
another country. It is also quite possible for a court to
determine if an order by a foreign court awards someone “custody”
rights, as opposed to rights of “access.” [FN4] Far more
difficult is the task of deciding, prior to a ruling by a court in
the abducted-from country, if a parent’s custody rights should be
ignored because he or she was not acting sufficiently like a
custodial parent. A foreign court, if at all possible, should
refrain from making such policy-oriented decisions concerning the
application of German law to a child whose habitual residence is,
or was, Germany.
Second, an American decision about the adequacy of one parent’s
exercise of custody rights is dangerously close to forbidden
territory: the merits of the custody dispute. The German court
in this case is perfectly capable of taking into account Mr.
Friedrich’s behavior during the August 1991 separation, and the
German court presumably will tailor its custody order accordingly.
A decision by an American court to deny return to Germany because
Mr. Friedrich did not show sufficient attention or concern for
Thomas’s welfare would preclude the German court from addressing
these issues–and the German court may well resolve them
differently.
Third, the confusing dynamics of quarrels and informal separations
make it difficult to assess adequately the acts and motivations of
a parent. An occasional visit may be all that is available to
someone left, by the vagaries of marital discord, temporarily
without the child. Often the child may be avoided, not out of a
desire to relinquish custody, but out of anger, pride,
embarrassment, or fear, vis a vis the other parent. [FN5] Reading
too much into
difficult times could be inaccurate and unfair. Although there
may be situations when a long period of unexplainable neglect of
the child could constitute non-exercise of otherwise valid custody
rights under the Convention, as a general rule, any attempt to
maintain a somewhat regular relationship with the child should
constitute “exercise.” This rule leaves the full resolution of
custody issues, as the Convention and common sense indicate, to
the courts of the country of habitual residence.
We are well aware that our approach requires a parent, in the
event of a separation or custody dispute, to seek permission from
the other parent or from the courts before taking a child out of
the country of its habitual residence. Any other approach allows a
parent to pick a “home court” for the custodydispute ex parte,
defeating a primary purpose of the Convention. We believe that,
where the reason for removal is legitimate, it will not usually be
difficult to obtain approval from either the other parent or a
foreign court. Furthermore, as the case for removal of the child
in the custody of one parent becomes more compelling, approval (at
least the approval of a foreign court) should become easier to
secure.
Mrs. Friedrich argues that our approach cannot adequately cope
with emergency situations that require the child and parent to
leave the country. In her case, for example, Mrs. Friedrich
claims that removal of Thomas to Ohio was necessary because she
could no longer afford to have the child stay at the army base,
and Mr. Friedrich refused to provide it shelter. Examining the
record, we seriously doubt that Mr. Friedrich would have refused
to lodge Thomas at his expense in Germany. In any event, even if
an emergency forces a parent to take a child to a foreign country,
any such emergency cannot excuse the parent from returning the
child to the jurisdiction once return of the child becomes safe.
Nor can an emergency justify a parent’s refusal to submit the
child to the authority of the foreign court for resolution of
custody matters, including the question of the appropriate
temporary residence of the child. See Viragh v. Foldes (Mass.
1993) 415 Mass. 96 [612 N.E.2d 241] (child removed to America by
one parent without notification to other parent may remain in
America in light of decision by Hungarian court in parallel
proceeding that best interests of the child require exercise of
sole custody by parent in America).
We therefore hold that, if a person has valid custody rights to a
child under the law of the country of the child’s habitual
residence, that person cannot fail to “exercise” those custody
rights under the Hague Convention short of acts that constitute
clear and unequivocal abandonment of the child. [FN6] Once it
determines that the parent exercised custody rights in any manner,
the court should stop–completely avoiding the question whether
the parent exercised the custody rights well or badly. These
matters go to the merits of the custody dispute and are,
therefore, beyond the subject matter jurisdiction of the federal
courts. 42 U.S.C. s 11601(b)(4).
In this case, German law gave Mr. Friedrich custody rights to
Thomas. The facts before us clearly indicate that he attempted to
exercise these rights during the separation from his wife. Mr.
and Mrs. Friedrich argued during the evening of July 27, 1991, and
separated on the morning of July 28. Mrs. Friedrich left with her
belongings and Thomas. She stayed on the army base with the child
for four days. Mr. Friedrich telephoned Mrs. Friedrich on July 29
to arrange a visit with Thomas, and spent the afternoon of that
day with his son. Mr. and Mrs. Friedrich met on August 1 to talk
about Thomas and their separation. The parties dispute the upshot
of this conversation. Mrs. Friedrich says that Mr. Friedrich
expressed a general willingness that Thomas move to America with
his mother. Mr. Friedrich denies this. It is clear, however,
Thomas by Mr. Friedrich, scheduling the first such visit for
August 3. Shortly after midnight on August 2, Mrs. Friedrich took
her son and, without informing her husband, [FN7] left for America
by airplane.
Because Mr. Friedrich had custody rights to Thomas as a matter of
German law, and did not clearly abandon those rights prior to
August 1, the removal of Thomas without his consent was wrongful
under the Convention, regardless of any other considerations about
Mr. Friedrich’s behavior during the family’s separation in
Germany.
III
Once a plaintiff establishes that removal was wrongful, the child
must be returned unless the defendant can establish one of four
defenses. Two of these defenses can be established by a
preponderance of the evidence, 42 U.S.C. s 11603(e)(2)(B): the
proceeding was commenced more than one year after the removal of
the child and the child has become settled in his or her new
environment, Hague Convention, Article 12; or, the person seeking
return of the child consented to or subsequently acquiesced in the
removal or retention, Hague Convention, Article 13a. The other
two defenses must be shown by clear and convincing evidence, 42
U.S.C. s 11603(e)(2)(A): there is a grave risk that the return of
the child would expose it to physical or psychological harm, Hague
Convention, Article 13b; or, the return of the child “would not
be permitted by the fundamental principles of the requested State
relating to the protection of human rights and fundamental
freedoms,” Hague Convention, Article 20. [FN8]
All four of these exceptions are “narrow,” 42 U.S.C. s
11601(a)(4). They are not a basis for avoiding return of a child
merely because an American court believes it can better or more
quickly resolve a dispute. See Rydder, 49 F.3d at 372 (citing
Friedrich I, 983 F.2d at 1400). In fact, a federal court retains,
and should use when appropriate, the discretion to return a child,
despite the existence of a defense, if return would further the
aims of the Convention. Feder, 63 F.3d at 226 (citing Pub. Notice
957, 51 Fed.Reg. 10494, 10509 (1986)).
Mrs. Friedrich alleges that she proved by clear and convincing
evidence in the proceedings below that the return of Thomas to
Germany would cause him grave psychological harm. Mrs. Friedrich
testified that Thomas has grown attached to family and friends in
Ohio. She also hired an expert psychologist who testified that
returning Thomas to Germany would be traumatic and difficult for
the child, who was currently happy and healthy in America with his
mother.
[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 him
[sic], and towards the father for creating that abandonment.
[These feelings] could be plenty enough springboard for other
developmental or emotional restrictions which could include
nightmares, antisocial behavior, a whole host of anxious-type
behavior. Blaske Deposition at 28-29.
If we are to take the international obligations of American courts
with any degree of seriousness, the exception to the Hague
Convention for grave harm to the child requires far more than the
evidence that Mrs. Friedrich provides. Mrs. Friedrich alleges
nothing more than adjustment problems that would attend the
relocation of most children. There is no allegation that Mr.
Friedrich has ever abused Thomas. The
found that the home that Mr. Friedrich has prepared for Thomas in
Germany appears adequate to the needs of any young child. The
father does not work long hours, and the child’s German
grandmother is ready to care for the child when the father cannot.
There is nothing in the record to indicate that life in Germany
would result in any permanent harm or unhappiness.
Furthermore, even if the home of Mr. Friedrich were a grim place
to raise a child in comparison to the pretty, peaceful streets of
Ironton, Ohio, that fact would be irrelevant to a federal court’s
obligation under the Convention. We are not to debate the
relevant virtues of Batman and Max und Moritz, Wheaties and
Milchreis. The exception for grave harm to the child is not
license for a court in the abducted-to country to speculate on
where the child would be happiest. That decision is a custody
matter, and reserved to the court in the country of habitual
residence.
Mrs. Friedrich advocates a wide interpretation of the grave risk
of harm exception that would reward her for violating the
Convention. A removing parent must not be allowed to abduct a
child and then–when brought to court–complain that the child has
grown used to the surroundings to which they were abducted. [FN9]
Under the logic of the Convention, it is the abduction that causes
the pangs of subsequent return. The disruption of the usual sense
of attachment that arises during most long stays in a single place
with a single parent should not be a “grave” risk of harm for the
purposes of the Convention.
In thinking about these problems, we acknowledge that courts in
the abducted-from country are as ready and able as we are to
protect children. If return to a country, or to the custody of a
parent in that country, is dangerous, we can expect that country’s
courts to respond accordingly. Cf. Nunez Escudero v. Tice-Menley,
58 F.3d 374, 377 (8th Cir.1995) (if parent in Mexico is abusive,
infant returned to Mexico for custody determination can be
institutionalized during pendency of custody proceedings). And if
Germany really is a poor place for young Thomas to grow up, as
Mrs. Friedrich contends, we can expect the German courts to
recognize that and award her custody in America. When we trust
the court system in the abducted-from country, the vast majority
of claims of harm–those that do not rise to the level of gravity
required by the Convention–evaporate.
The international precedent available supports our restrictive
reading of the grave harm exception. In Thomson v. Thomson, 119
D.L.R.4th 253 (Can. 1994), the Supreme Court of Canada held that
the exception applies only to harm “that also amounts to an
intolerable situation.” Id. at 286. The Court of Appeal of the
United Kingdom has held that the harm required is “something
greater than would normally be expected on taking a child away
from one parent and passing him to another.” In re A., 1 F.L.R.
365, 372 (Eng.C.A.1988). And other circuit courts in America have
followed this reasoning in cases decided since Friedrich I. See
Nunez-Escudero, 58 F.3d at 377 (citing Thomson, 119 D.L.R.4th at
286, and In re A., 1 F.L.R. at 372); Rydder, 49 F.3d at 373
(affirming district court order for return of child over abducting
parent’s objection that return would cause grave harm). Finally,
we are instructed by the following observation by the United
States Department of State concerning the grave risk of harm
exception.
This provision was not intended to be used by defendants as a
vehicle to litigate (or relitigate) the child’s best interests.
Only evidence directly establishing the existence of a grave risk
that would expose the child to physical or emotional harm or
otherwise place the child in an intolerable situation is material
to the court’s determination. The person opposing the child’s
return must show that the risk to the child is grave, not merely
serious.
A review of deliberations on the Convention reveals that
“intolerable situation” was not intended to encompass return to a
home where money is in short supply, or where educational or other
opportunities
State. An example of an “intolerable situation” is one in which a
custodial parent sexually abuses the child. If the other parent
removes or retains the child to safeguard it against further
victimization, and the abusive parent then petitions for the
child’s return under the Convention, the court may deny the
petition. Such action would protect the child from being returned
to an “intolerable situation” and subjected to a grave risk of
psychological harm.
Public Notice 957, 51 FR 10494, 10510 (March 26, 1986) (emphasis
added).
For all of these reasons, we hold that the district court did not
err by holding that “[t]he record in the instant case does not
demonstrate by clearand convincing evidence that Thomas will be
exposed to a grave risk of harm.” Although it is not necessary to
resolve the present appeal, we believe that a grave risk of harm
for the purposes of the Convention can exist in only two
situations. First, there is a grave risk of harm when return of
the child puts the child in imminent danger prior to the
resolution of the custody dispute– e.g., returning the child to a
zone of war, famine, or disease. Second, there is a grave risk of
harm in cases of serious abuse or neglect, or extraordinary
emotional dependence, when the court in the country of habitual
residence, for whatever reason, may be incapable or unwilling to
give the child adequate protection. Psychological evidence of the
sort Mrs. Friedrich introduced in the proceeding below is only
relevant if it helps prove the existence of one of these two
situations. [FN10]
IV
Mrs. Friedrich also claims that the district court erred in
ordering Thomas’s return because Mrs. Friedrich proved by a
preponderance of the evidence that Mr. Friedrich (i) consented to,
and (ii) subsequently acquiesced in, the removal of Thomas to
America. [FN11]
Mrs. Friedrich bases her claim of consent to removal on statements
that she claims Mr. Friedrich made to her during their separation.
Mr. Friedrich flatly denies that he made these statements. The
district court was faced with a choice as to whom it found more
believable in a factual dispute. There is nothing in the record
to suggest that the court’s decision to believe Mr. Friedrich, and
hold that he “did not exhibit an intention or a willingness to
terminate his parental rights,” was clearly erroneous. In fact,
Mr. Friedrich’s testimony is strongly supported by the
circumstances of the removal of Thomas–most notably the fact that
Mrs. Friedrich did not inform Mr. Friedrich that she was
departing. Supra n. 7. The deliberately secretive nature of her
actions is extremely strong evidence that Mr. Friedrich would not
have consented to the removal of Thomas. For these reasons, we
hold that the district court did not abuse its discretion in
finding that Mrs. Friedrich took Thomas to America without Mr.
Friedrich’s consent.
Mrs. Friedrich bases her claim of subsequent acquiescence on a
statement made by Mr. Friedrich to one of her commanding officers,
Captain Michael Farley, at a cocktail party on the military base
after Mrs. Friedrich had left with Thomas. Captain Farley, who
cannot date the conversation exactly, testified that:
During the conversation, Mr. Friedrich indicated that he was not
seeking custody of the child, because he didn’t have the means to
take care of the child.
Farley Deposition at 13. Mr. Friedrich denies that he made this
statement. The district court made no specific finding regarding
this fact.
if it was made, is insufficient evidence of subsequent
acquiescence. Subsequent acquiescence requires more than an
isolated statement to a third-party. Each of the words and actions
of a parent during the separation are not to be scrutinized for a
possible waiver of custody rights. See Wanninger, 850 F.Supp. at
81-82 (refusing to construe father’s personal letters to wife and
priest as sufficient evidence of acquiescence where father
consistently attempted to keep in contact with child). Although
we must decide the matter without guidance from previous appellate
court decisions, we believe that acquiescence under the convention
requires either: an act or statement with the requisite
formality, such as testimony in a judicial proceeding; [FN12] a
convincing written renunciation of rights; [FN13] or a consistent
attitude of acquiescence over a significant period of time.
By August 22, 1991, twenty-one days after the abduction, Mr.
Friedrich had secured a German court order awarding him custody of
Thomas. He has resolutely sought custody of his son since that
time. It is by these acts, not his casual statements to third
parties, that we will determine whether or not he acquiesced to
the retention of his son in America. Since Mrs. Friedrich has not
introduced evidence of a formal renunciation or a consistent
attitude of acquiescence over a significant period of time, the
judgment of the district court on this matter was not erroneous.
V
The district court’s order that Thomas be immediately returned to
Germany is AFFIRMED, and the district court’s stay of that order
pending appeal is VACATED. Because Thomas’s return to Germany is
already long-overdue, we order, pursuant to Fed.R.App.P. 41(a),
that our mandate issue forthwith.
FN1. The stay of the judge’s order pending appeal, hotly contested
below, is not now challenged by Mr. Friedrich. It may have been
improvident. Staying the return of a child in an action under the
Convention should hardly be a matter of course. The aim of the
Convention is to secure prompt return of the child to the correct
jurisdiction, and any unnecessary delay renders the subsequent
return more difficult for the child, and subsequent adjudication
more difficult for the foreign court.
FN2. Mrs. Friedrich cites German Civil Code s 1629, which says
that a parent who exercises parental care alone can also represent
the child in legal matters alone. Obviously, the ability of one
parent to “represent” the child does not imply that the other
parent has no custody rights. Mrs. Friedrich also cites German
Civil Code s 1631, which says that the Family Court, if
petitioned, can assist the parents in providing parental care. We
have no idea how this provision, which is essentially no more than
a grant of jurisdiction to appoint and direct a family services
officer, can support Mrs. Friedrich’s claim that “a German parent
can certainly relinquish custody or parental rights absent a
judicial determination.” Defendants-Appellants’ Brief at 15.
FN3. Article 21 of the Hague Convention instructs signatory
countries to protect the “rights of access” of non-custodial
parents to their children. Courts have yet to address the question
whether Article 21 implies that a custodial parent can remove a
child from its country of habitual residence without the
permission of a parent whose rights that country’s courts have
expressly limited to “visitation.” See infra n. 4.
FN4. For a particularly difficult situation, ably resolved, see
David S. v. Zamira, 151 Misc.2d 630, 574 N.Y.S.2d 429
(Fam.Ct.1991), aff’d In re Schneir, 17 F.L.R. 1237 (N.Y.App.Div.2d
Dep’t). The court here held that an order giving the
non-custodial parent visitation rights and restricting the
custodial parent from leaving the country constitutes an order
granting “custodial” rights to both parents under the Hague
Convention.
FN5. When Mrs. Friedrich took Thomas and her belongings from the
family apartment on the morning of July 28, she was accompanied by
some friends from work: soldiers of the United States Army. Mr.
Friedrich testified that he was “intimidated” by the presence of
the soldiers, and discouraged from making a stronger objection to
the removal of his child.
FN6. The situation would be different if the country of habitual
residence had a legal rule regarding the exercise of custody
rights clearly tied to the Hague concept of international removal.
If, for example, Germany had a law stating that, for the purposes
of the Convention, mere visitation without financial support
during a period of informal separation does not constitute the
“exercise” of custody rights, we would, of course, be bound to
apply that law in this case.
FN7. Q. You didn’t call your husband, Mrs. Friedrich, because you
didn’t want him to know you were leaving; isn’t that the reason?
A. Yes it is. Transcript of October 16, 1991, Proceedings at 36.
FN8. The situation changes somewhat when the child is older. The
Hague Convention allows a court in the abducted-to country to
“refuse to order the return of the child if it finds that the
child objects to being returned and has attained an age and degree
of maturity at which it is appropriate to take account of its
views.” Hague Convention, Article 13.
FN9. We forgo the temptation to compare this behavior to the
standard definition of “chutzpah.” See A. Kozinski & E. Volokh,
Lawsuit, Shmawsuit, 103 Yale L.J. 463, 467 (1993).
FN10. The only other circuit addressing the issue had its own
doubts about whether a psychological report concerning the
difficulty that a child would face when separated from the
abducting parent is ever relevant to a Hague Convention action.
Nunez-Escudero, 58 F.3d at 378 (such reports are not per se
irrelevant, but they are rarely dispositive).
FN11. Article 13a provides a defense to an action for return if
the petitioner “consented to or subsequently acquiesced in the
removal or retention” of the child. The Convention does not
define consent or acquiescence in any more definite manner, and
there is no statement to guide us in the text or legislative
history of the Act.
FN12. In Journe v. Journe, 911 F.Supp. 43 (D.P.R.1995), a French
father instituted custody proceedings in France after the mother
took the children to Puerto Rico. The mother returned to France,
presumably without the children, to participate in the
proceedings. The father voluntarily dismissed the French custody
proceedings, but continued to pursue Hague Convention remedies
The district court held that the father had waived his rights to
have a French court determine custody issues by virtue of the
voluntary dismissal of his French case. Id. at 48. The court
reached that decision because of “its equitable powers,” not
because the dismissal constituted “acquiescence” for the purposes
of the Convention.
FN13. A hastily-drafted and soon-rued written agreement was found
insufficient indication of consent in Currier v. Currier, 845
F.Supp. 916 (D.N.H.1994).