USA – FEDERAL – NICHOLSON – 1997 (Return ordered) NICHOLSON v NICHOLSON. Father took child to US (Kansas). Mother applies for return under the Hague Convention and ICARA. Court orders the child returned to Germany and the mother.

Nicholson v Nicholson (D Kansas 1997)No. 97-1273-JTM.
20 International Abduction [US 1997]

IN RE Application of:

Renate NICHOLSON, Petitioner,


Patrick Owen NICHOLSON, Respondent,

No. 97-1273-JTM.

United States District Court, D. Kansas.

July 7, 1997.


MARTEN, District Judge.

001 On June 27, 1997, the court heard argument and
evidence relating to petitioner Renate Nicholson’s request
for an order directing the return of a minor to her country
of origin pursuant to the Convention on the Civil Aspects of
International Child Abduction, Done at the Hague on 25
October 1980 (Hague Convention), and the International Child
Abduction Remedies Act,  42 U.S.C. S 11601 (ICARA).
Petitioner seeks return of the minor child, (Name Withheld).

002 Both petitioner and the respondent, Patrick
Nicholson, appeared at the hearing. Respondent appeared pro
se. [FN1] Both petitioner and respondent testified at the
hearing. For the reasons discussed herein, the court finds
that an order of return is justified.

003 Petitioner and respondent were married in Germany in
1985. (Name Withheld) was born December 12, 1986. Except
for a period of approximately one year in 1989 when the
couple moved to the United States, the Nicholsons lived in
Germany until 1994. The Nicholsons lived in the United
States from early 1994 until May of 1995, when Renate and
(Name Withheld) returned to Germany to visit her parents.

004 During this period, the couple experienced
significant marital difficulties, and at the end of June
1995, Renate decided to remain in Germany. Shortly after
learning of this decision, respondent Patrick Nicholson
traveled to Munster, Germany.

005 Respondent abducted (Name Withheld) in October 1996, and
brought her to the United States. At the time of the
abduction, (Name Withheld) had been living in Germany for a year and a
half. At the time of the abduction, Renate Nicholson had
custody of (Name Withheld). Due to the “emotion impact” of the
separation between himself and Renate, Patrick Nicholson was
unable to see (Name Withheld) for more than about six hours
once a month.

006 In the period immediately prior to the abduction,
respondent’s behavior grew erratic. Respondent beat a drum
and shouted loudly outside Renate’s residence. On another
occasion, Renate was physically attacked. She was unable to
directly identify her attacker, but subsequently identified
a walking stick left behind by the attacker as one belonging
to respondent.

007 Respondent made an appointment to visit (Name Withheld) on
October 27, 1996. Prior to this time, Renate had told
respondent that she planned to file for a divorce.
Respondent denies this, but admitted during the hearing that
he knew “something was in the works.” Respondent took (Name Withheld)
for a drive. Subsequently respondent twice called Renate’s
residence and left messages that he was on his way back with
(Name Withheld). In fact, respondent was in the process of taking
(Name Withheld) with him to the United States.

008 Respondent has lived with (Name Withheld) in this country
since October 27, 1996. During this time he has refused to
give Renate Nicholson either a telephone number through
which she could speak directly with (Name Withheld), or a street
address where she could write her. Instead, Renate was
permitted only to contact her daughter indirectly by sending
faxes to respondent’s brother in Dallas, Texas.

009 Renate Nicholson has obtained a temporary award of
custody by a German court. A final divorce decree in
Germany was expected to be issued on July 2, 1997.
Respondent refuses to accept the impending termination of
the marriage and indicates one of his motives for abducting
(Name Withheld) was to “save his family” by forcing petitioner to come
and live with him in the United States.

010 Renate was forced to employ a private investigator
to locate her daughter. At the time these proceedings
commenced, Patrick and (Name Withheld) resided in Oxford,

011 The general principles underlying claims of child
abduction under ICARA and the Hague Convention were recently
summarized by the Tenth Circuit in Ohlander v. Larson,, 114
F.3d 1531, 1997 WL 291398 (10th Cir. June 3, 1997):

The Hague Convention on the Civil Aspects of
International Child Abduction (the
“Convention”), as implemented by both the
United States Congress through the
International Child Abduction Remedies Act, 
42 U.S.C.  11601-11610 (1994), and Sweden,
was adopted by the signatory nations “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.” Hague Convention on
the Civil Aspects of International Child
Abduction, Dec. 23, 1981, Preamble,  51
Fed.Reg. 10494, 10,498 (1986). The Convention
is meant to provide for a child’s prompt
return once it has been established the child
has been “wrongfully removed” to or retained
in any affiliated state. Id., art. 1,  51
Fed.Reg. at 10498.

012 Under the Convention, a removal or retention is
“wrongful” if:

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 removal or retention.

013 Id., Art. 3,  51 Fed.Reg. at 10498. Once a removal
is deemed “wrongful,” “the authority concerned shall order
the return of the child.” Id., art. 12, 51 Fed.Reg. at

014 However, the Convention provides for several
exceptions to return if the person opposing return can show
any of the following:

015 1) the person requesting return was not, at the time
of the retention or removal, actually exercising custody
rights or had consented to or subsequently acquiesced in the
removal or retention, id., art. 13a,  51 Fed.Reg. at 10499,
42 U.S.C.  11603(e)(2)(A);

016 2) the return of the child would result in grave
risk of physical or psychological harm to the child, id.,
art. 13b, 42 U.S.C.  11603(e)(2)(A);

017 3) 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,” id., art. 20, 51 Fed.Reg. at 10500, 42 U.S.C. 
11603(e)(2)(A); or

018 4) the proceeding was commenced more than one year
after the abduction and the child has become settled in the
new environment, id., art. 12, 51 Fed.Reg. at
10499, 42 U.S.C.  11603(e)(2)(B).

019 Different standards of proof exist for the various
defenses provided under the treaty. The respondent must
establish the affirmative defense of settlement in a new
environment for one year under Article 12 of the Hague
Convention by a preponderance of the evidence.  Friederich
v. Friederich, 983 F.2d 1396, 1400 (6th Cir.1993); Steffen
F. v. Severina P., 966 F.Supp. 922, 1997 WL 306461 (D.Ariz.
Apr.16, 1997). In contrast, the human rights and grave risk
of harm defenses under Articles 20 and 13 may only be
established by clear and convincing evidence. Id. It is the
function of the court not to determine custody of the
wrongfully removed child, but simply to determine which of
the contracting states under the Convention has jurisdiction
to make this determination. Friederich, 983 F.2d at 1400;
In re Levesque, 816 F.Supp. 662, 664 (1993).

020 The court finds petitioner has satisfied her burden
under the Convention, having shown that at the time of the
abduction she had custody of (Name Withheld) and (Name Withheld) habitual
residence was Germany. Habitual residence for purposes of
the Convention, means “customary residence prior to the
removal.” Friederich, 983 F.2d at 1401. By October 1996,
(Name Withheld) had lived approximately 70% of her life in Germany.
She had also lived there for the previous year and a half.
In light of the facts presented, Germany was clearly the
habitual residence of (Name Withheld) in October of 1996.

021 The court also finds respondent has failed to
demonstrate the applicability of any of the defenses
provided by ICARA. Since her removal in October 1996, (Name Withheld)
has not lived in the United States for more than a year and
thus acquired a settled environment in this country. Renate
Nicholson has not acquiesced in (Name Withheld) removal, but instead
has vigorously attempted to protect and enforce her
custodial rights. There is no evidence whatsoever that a
return of (Name Withheld) to the petitioner creates a risk of danger
to her or is inconsistent with the human rights principles
of the United States of America.

022 Respondent argues (Name Withheld) should not be returned since
she wishes to remain in the United States. Article 13, para
5 of the Hague Convention provides that a child need not be
returned if the court finds “the child objects to being
returned and has attained an age and degree of maturity at
which it is appropriate to take account of [his or her]

023 The child objection defense has been narrowly
construed. See R. Nanos, “The Views of a Child: Emerging
Interpretation and Significance of the Child’s Objection
Defense Under the Hague Child Abduction Convention,” 22
Brook. J. Int’l L. 437, 448 (1996) (finding a “demonstrated
disinclination by tribunals to defer to the child’s
objection as a basis for denying a Hague petition”). In
Tahan v. Duquette, 259 N.J.Super. 328, 618 A.2d 486 (1992),
the court ruled that the child objection defense “simply
does not apply to a nine-year-old child.” Courts have also
refused to recognize certain types of objections. Thus, the
defense has no application if the child’s views have been
influenced by an abductor, or if the objection is simply
that the child wishes to remain with the abductor. See
Sheik v. Cahill, 145 Misc.2d 171, 546 N.Y.S.2d 517 (1989);
In re S, 2 All E.R. 683, 690 (C.A.1992).

024 In the present case, the court need not determine
whether (Name Withheld), who is now 10 years old, has reached the
“degree of maturity” contemplated by the Hague Convention.
The court spoke with (Name Withheld) in camera and determined that she
does not raise any substantial objection to returning to
Germany. As with most children in her situation, she finds
herself wishing the family could remain intact. She has
indicated she loves both her parents and understands that
both parents love her. She has stated she will miss
whichever parent she is not living with; she will miss her
puppy in Oxford if she returns to Munster; she will miss
her rabbits if she remains in the United States. The court
finds respondent has failed to present evidence justifying
application of the child objection defense under the Hague
Convention or ICARA.

025 IT IS ACCORDINGLY ORDERED this 1997, that the
request for order of return (Dkt. No. 1) is hereby granted.


FN1. This hearing had been continued from two prior
occasions. The first extension was granted by Judge
Belot to allow respondent more time to prepare. A
second extension was granted to allow respondent
further opportunity to locate counsel.