USA – FEDERAL – STEFFEN – 1997 (Return denied) (13b) STEFFEN F. v SEVERINA P. Mother takes children to US. The father applies for the return under the Hague Convention. The Court found that there was proof of ‘Bonding” with the mother and not with the father. They concluded that the mother has proven by “clear and convincing evidence that a grave risk of harm exists if the child is returned to Germany. The petition for return is denied at this time.
Steffen F v Severina P. (D.Ariz. 1997)966 F.Supp. 922
6 International Abduction [USA 1997]
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Petitioner: Steffen F.
vs.
Respondent: Severina P.
No CV 96-481 TUC JMR
United States District Court, District of Arizona
16 Apr 1997
ORDER
Roll, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
JUDGMENT
001 <* page 923> This matter involves the temporary
custody of a three year old boy. It was tried to the Court
March 11-13, 1997. This Court has jurisdiction pursuant to
the Convention on the Civil Aspects of Child Abduction
signed at the Hague on 26 October 1980 (“Hague Convention”)
and the implementing statute the International Child
Abduction Remedies Act, 42 U.S.C. 11601 et seq. For the
reasons set forth below, it is ordered that Jaime F. remain
in the custody of his mother, Severina P., until-permanent
custody is awarded by a court of competent jurisdiction.
002 In the interest of providing some background to the
findings of fact and conclusions of law, this Order will
first outline the evidence presented to the Court at the
trial, followed by some of the relevant procedural history
in this case and the applicable law. Finally, the Order
outlines the findings of fact and conclusions of law.
Evidence at Trial
003 Jaime F. is a three year old boy. His mother is
Severina P. and his father is Steffen F. Severina P. is a
citizen of Great Britain, the United States, and the Federal
Republic of Germany (“Germany”). Steffen F. is a citizen of
Germany. Jaime F. was born in Germany and is a citizen of
both Germany and the United States. Both Severina P. and <*
page 924> Steffen F. were among the witnesses in the three
day trial regarding the interim custody of Jaime F.
004 Steffen F. and Severina P. lived in Germany and became
romantically involved in late 1990 or early 1991. At that
time, Severina P. was pregnant by another man whose child,
Tricia P., was born in Germany on August 22, 1991. In early
1992, Severina P. and Steffen F. began to cohabit, and
Tricia P. lived with them. Steffen F. was, and still is,
employed as an electrical engineer in the Uniformed Service
of the German Air Force at Ramstein Air Base. Severina P.
was a nursing student.
005 On December 10, 1993, Steffen F. and Severina P. were
married in Landstuhl, Germany. By all accounts, the marriage
was a stormy one and, almost immediately, the couple
discussed divorce. On March 10, 1994, Jaime F. was born.
The marital situation did not improve, however, and on March
3, 1996, Severina P. moved out of the family residence,
taking both children with her.
006 On March 13, 1995, Severina P. and Steffen F. met
together with their attorneys to discuss the terms of the
separation and the custody of the two children. An
arrangement was agreed upon wherein Steffen F. would have
physical custody of both children every other weekend, and
visits in between those times were permissible. These
arrangements were carried out by the parties.
007 Eight months later, on November 13, 1996, with no
advance notice given to Steffen F., Severina P. left Germany
with Jaime F. and Tricia P. That day, Severina P. mailed a
letter to Steffen F., which stated, in part: “As you read
this letter, we are already out of the country . . . If you
try to find me, good luck.” They flew to Detroit, Michigan,
where they were met by a male friend of Severina P. who was
in the process of obtaining a divorce. After approximately
ten days in which the four lived together in Dayton, Ohio,
they drove to Tucson, Arizona.
008 Since arriving in Arizona, Severina P. and the
children have lived in a number of different locations. Most
recently, the three live with Severina P.’s parents, who now
own a home in Arizona. Severina P. did not directly notify
Steffen F. of her location, but he eventually learned of it
when he was served with dissolution papers that Severina P.
had filed in Pima County Superior Court. Since learning of
his whereabouts, Steffen F. has been able to visit Jaime F.
at least once when Steffen F. was in Arizona for some court
proceedings.
009 In addition to testimony regarding the family history,
evidence was presented at the trial indicating that Tricia
P. had been sexually abused. This evidence included
testimony that Tricia P. has engaged in inappropriately
sexualized conduct, the fact that Tricia P. had a yeast
infection and vaginal discharge prior to leaving Germany, a
clinical psychologist’s testimony that Tricia P. told him
that “papa” had touched her “pee pee,” and the opinion of
Dr. Jerry Richard Day, a psychologist, that Tricia P. had
been sexually molested. Steffen F. testified that Severina
P. threatened him with sexual abuse allegations should he
contest Jaime F.’s custody.
010 There was also testimony as to the psychological
status of both Tricia P. and Jaime F. Dr. Jerry Day
testified extensively concerning the results of
psychological testing administered to and interviews of the
children. The tests included the Twenty-Five Point Bonding
Assessment, the House, Tree, Person Test, and the Children’s
Apperception Test. He concluded that both children were
attached and bonded to their mother, Severina P. Dr. Day
also testified concerning the likely consequences of
unnattaching and unbonding a child after bonding and
attachment has occurred. Steffen F. presented no expert
witnesses to counter the testimony of Dr. Day.
Procedural Background
011 There, have been a number of judicial proceedings
initiated in both Germany and the United States pertaining
to the custody of Jaime F.
012 On January 30, 1996, Severina P. filed a petition to
establish child custody in the Superior Court of the State
of Arizona, Pima County. The Pima County Superior Court
declined to exercise jurisdiction over the issue of Jaime
F.’s custody.
013 <* page 925> Steffen F. fared better. After Severina
P. left the two children, Steffen F. filed a petition for
custody of Jaime F. in the Family Law Division of the
Landstuhl District Court in Germany. That court awarded
Steffen F. custody of Jaime F. for the duration of the
parties’ separation on June 13, 1996.
014 On April 15, 1996, approximately five months after
Severina P. left Germany with Jaime F. and Tricia P.,
Steffen F. filed an application for assistance under the
Hague Convention on Child Abduction with the United States
Central Authority.
015 The Pima County Superior Court granted Severina P.
dissolution of her marriage to Steffen F. in August of 1996.
That dissolution decree did not address any custodial issues
involving Jaime F.
016 Because the Landstuhl District Court order awarding
Steffen F. custody of Jaime F. on June 13, 1996 was not an
award of permanent custody, after Severina P. obtained the
dissolution decree in August 1996, Steffen F. sought and
obtained a decree of “preliminary” permanent custody of
Jaime F. That decree was entered February 24, 1997, by the
Landstuhl District Court, Family Law Division.
017 Finally, on July 26, 1996, Steffen F. filed the
Petition for Return of Child Pursuant to the Hague
Convention in this Court. The parties’ need for discovery
resulted in this matter not being tried to the Court until
March 1997. WMHFN 01
Applicable Law .
018 Under the Hague Convention and the International Child
Abductions Remedies Act, 42 U.S.C. 11601 et seq., the
issue before this Court is a very narrow one. Specifically,
this Court must determine whether, pending a determination
of custody, Jaime F. should be returned to Germany and his
father, Steffen F., or remain in the United States with his
mother, Severina P. WMHFN02
019 Pursuant to the Hague Convention, as Petitioner in
this action, Steffen F. must prove the following three
elements by a preponderance of the evidence: (1) Jaime F.
was an “habitual resident” of Germany; (2) Steffen F. had
either sole or joint rights of custody concerning Jaime F;
and, (3) at the time of Jaime’s removal from Germany,
Steffen F. was exercising those custodial rights. 42 U.S.C.
11603(e)(1)(A); Hague Convention, Art. 3. Once that
burden is met, the burden shifts to Respondent Severina P.,
who must prove at least one of three affirmative defenses
she has raised to prevent the return of Jaime F. to his
father. 42 U.S.C. 11603(e)(2)(A) and (B); Hague
Convention Art. 12, 13(b) and 20. See alto, Friedrich v.
Friedrich 983 F.2d 1396 (6th Cir. 1993).
020 The first of these affirmative defenses requires proof
by a preponderance, of the evidence that Jaime F. has now
settled into his new environment and that Steffen F. did not
commence proceedings for return of the child until after a
period of one year; had expired following wrongful removal
of the child. 42 U.S.C. 11603(e)(2)(B); Hague Convention,
Art. 12.
021 A second affirmative defense is provided for under 42
U.S.C. 11603(e)(2)(A) and the Hague Convention, Art. 20.
That affirmative defense requires proof by clear and
convincing evidence that Jaime F.’s return to Germany “would
not be permitted by the fundamental principles of the
requested state relating to the protection of human rights
and fundamental freedoms.” Hague Convention, Art. 20.
022 The final affirmative defense raised by Severina P.
requires proof by clear and convincing evidence that Jaime
F. should not be returned to the country of the child’s
habitual residence because “there is a grave risk that his
return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable
situation.” 42 U.S.C. 11603(e)(2)(A); Hague Convention,
Art. 13(b). Most of Severina P.’s evidence at trial
pertained to this defense.
Discussion
A. Petitioner’s Initial Burden.
023 Based on the facts presented by both Petitioner and
Respondent, Steffen F. proved by a preponderance of the
evidence that: (1) Jaime F. was an habitual resident of
Germany and was removed from that country by Severina P.;
(2) at the time that Severina P. <* page 926> removed Jaime
F., Steffen F. had either sole or joint custody of Jaime F.;
and (3) at the time of removal, Steffen F. was exercising
his custodial rights.
024 Jaime F. was born in Germany and lived his entire life
there Until Severina P. brought him to the United States in
November 1995. Therefore, he was clearly a “habitual
resident” of Germany when Severina P. left Germany with him.
See, e.g., Meredith v. Meredith 759 F.Supp. 1432 (D.Ariz.
1991). It is uncontroverted that Severina P. removed Jaime
F. from Germany. At the time Severina P. took Jaime F., she
did so wrongfully because Steffen F. had joint custody of
Jaime F. and was exercising his custodial rights as
evidenced by both Severina P.’s and Steffen F.’s testimony
regarding the terms of their separation as agreed to in
March 1995. BGB 1626, translated in The German Civil Code
1626 (Simon L. Goren trans., Rothman & Co.1994) (hereafter
“German Civil Code 1626); Currier v Currier, 845 F.Supp.
916, 921 (D.N.H. 1994).
B. Affirmative Defenses.
025 Because Steffen F., has met his initial burden of
proof, Severina P., in order to prevent the return of Jaime
F. to his father in Germany, has the burden of proving that
at least one of the available affirmative defenses applies.
1. New environment and passage of more than one year.
026 The affirmative defense that Jaime F. has settled into
his new environment and that Steffen F. permitted over one
year to expire following Jaime F.’s wrongful removal before
commencing proceedings to obtain Jaime,F.’s return is
inapplicable. The second prong of this defense is not
supported by the facts. Jaime F. was taken from Germany on
November 13, 1995, and Steffen F. filed this action on July
26, 1996. This is well within one,year of Jaime F.’s
abduction. Therefore, Severina P. failed to prove this
affirmative defense by a preponderance of the evidence.
WMHFN03
2. Violation of human rights and fundamental freedom
027 Nor is the second affirmative defense raised by
Severina P. applicable. There is nothing in the record to
indicate that return of Jaime F. to Germany would be
violative of human rights and fundamental freedoms.
Therefore, Severina P. has failed to establish this
affirmative defense.
3. Grave risk of harm.
028 Only the affirmative defense of grave risk of harm to
Jaime F. remains to be considered. Severina P. has the
burden of establishing this defense by clear and convincing
evidence.
a. Sexual abuse.
029 Severina P. argues that a grave risk to Jaime ;F.
exists because Steffen F. molested Severina P’s daughter,
Tricia P. There was no evidence that Jaime F. was molested.
Evidence that Tricia P. was molested is only probative to
the extent that Tricia P.’s molestation is attributable to
Steffen F. If Steffen F. is responsible for molesting Tricia
P. it may be inferred that if Steffen F. molested Tricia P.,
Steffen F. would be an unfit father for Jaime F., and Jaime
F. would also be at risk of molestation.
030 While it is highly probable, based on the testimony of
the fact witnesses and the psychologists, that Tricia P. has
suffered sexual abuse at some point in her life, Severina P.
has not shown by clear and convincing evidence that Steffen
F. was responsible for that abuse. Because it has not been
shown that any abuse is attributable to Steffen F., it
cannot be inferred that Jaime F. would be physically at risk
of abuse if he were returned to his father or that Steffen
F. is an unfit parent. Accordingly, the affirmative defense
of grave risk of harm to Jaime F. may not be grounded upon
Steffen F.’s alleged sexual abuse of Tricia P.
b. Bonding and attachment.
031 Severina P. also provided evidence of another source
of grave risk to Jaime F. If he were returned to Germany,
that being psychological harm. Dr. Jerry Day offered
compelling testimony that Jaime F. faces a grave <* page
927> risk of psychological harm if he is returned to
Germany. After testifying that Jaime F. was bonded to his
mother, Dr. Day stated that removal of Jaime F. from his
mother for any period of time longer than a few weeks would
likely result in unbonding and unattachment. He stated that
a grave risk exists because a child being unbonded and
unattached often produces long-term, serious psychological
problems. Such children often grow up to be manipulative and
untrusting. He stated that sociopaths tend to be adults who
were unbonded as children. He also stated that a painful
separation such as would occur here should Jaime F. return
to Germany would likely result in Jaime F. suffering
significant disorders. Dr. Day further testified that,
although it is possible for a child of Jaime F.’s age who
has bonded and attached to his mother, upon removal from
her, to reattach to the child s father, the prospects for
rebonding and reattachment are bleak.
032 Steffen F. argues that bonding and attachment issues
do not rise to the level of grave risk of harm, relying upon
Friedrich v Friedrich, 78 F.3d 1060 (6th Cir.1996). There,
the Sixth Circuit stated that grave risk of harm exists in
only two situations: (1) where return of the child puts the
child in imminent danger prior to resolution of the custody
dispute, for example, returning a child to a war zone, or
(2) in cases of serious abuse or neglect, or extraordinary
emotional dependence, where the court in the country of the
child’s habitual residence may be incapable or unwilling to
give the child adequate protection. 78 F.3d at 1068.
033 Under the Sixth Circuit s reasoning, issues such as
attachment and bonding, even when constituting extraordinary
emotional dependence, do not meet the requisite grave risk
of harm absent an additional finding that the court in the
country of the child’s habitual residence is incapable or
unwilling to give the child adequate protection. Should the
Sixth Circuit’s interpretation of grave risk of harm be
applied to this matter, Severina P. would fail to make the
necessary showing because any resulting detachment and
unbonding would result from Jaime F. being deprived of his
mother, not from lack of effort by a German court.
034 It is significant, however, that language in the
Eighth Circuit decision of Rydder v. Rydder 49 F.3d 369, 373
(8th Cir. 1996) suggests that specific evidence of
potential harm to a child as a result of separation from a
primary caregiver may constitute grave risk of harm under
the Hague Convention. There, a mother relied upon seven
authorities that recognize that separating a child from his
or her primary caretaker creates a risk of psychological
harm. 49 F.3d at 373 (citations omitted). Based on the facts
before it the Eighth Circuit declined to find a grave risk
of harm, emphasizing that the mother had failed to present
specific evidence of potential harm to the children’ at
issue.
034 It is also notable that at least one previous petition
pursuant to the Hague Convention has been denued because the
court found that the chiid’s return would be psychologically
dangerous to the child. While this Court clearly recognizes
the absence of precedential impact on this Court of any
foreign court decision FN1 and the absence of precedential
impact in Germany of a German court decision, Germany being
a civil law country, FN2 the decision in B. v B., Family
Court of Westerberg, September 29, 1992, is nevertheless
instructive. B. v. B. is a mirror case to the instant
matter. There, a German court found that grave risk of harm
existed should a German child abducted from Texas and taken
to Germany be returned to Texas, because of the intensive
bond between [German] mother and child. WMHFN04
035 In response to Severina P. s arguments of
psychological harm, Steffen F. relies heavily upon the Sixth
Circuit’s statement that “[a] removing parent must not be
allowed to abduct a child and then Ä- when brought to court
Ä- complain that the child has grown used to the
surroundings to which they were abducted.” 78 F.3d at 1068.
Steffen F. argues that if Jaime F. is more bonded to <* page
928> Severina P. than he is to Steffen F., it was a result
of Severina P.’s abduction of Jaime F. and she should not be
allowed to benefit from such wrongful actions.
036 Certainly this Court would agree that no parent should
be rewarded for wrongfully abducting a child. However,
punishment of the wayward parent should not be the single
decisive factor in resolving this matter. Where bonding and
attachment have occurred and removal of the child would
likely cause great harm to that child, it would be troubling
to remove the child from that parent in order to punish the
parent for the wrongful act of abduction.
037 Severina P. acted wrongfully in removing Jaime F. from
Germany. In doing so, she deprived Jaime F. of contact with
his father and caused Steffen F. to go to extraordinary
lengths to locate his son and seek his lawful return. This
conduct is inexcusable. Nevertheless, her conduct should not
obligate this Court to ignore compelling proof that the
return of Jaime F. to Germany at this time would pose a
grave risk of psychological harm to him now and in the
future.
038 Having weighed all the evidence before it, the Court
concludes that Respondent Severina P. has proven by clear
and convincing evidence that a grave risk of harm exists if
Jaime F. were returned to Germany. The grave risk of harm
arises from the fact that Jaime . F. has attached and bonded
to his mother and is likely to suffer detachment and
unbonding should he be removed from her. WMHFN05
Findings of Fact
039 Based upon the evidence; presented at trial, the Court
makes the following findings of fact:
040 1. Steffen F. is a citizen of Germany and Severina P.
is a citizen of Great Britain, the United States and
Germany.
041 2. At all relevant,times, up until November 13, 1996,
Steffen F. and Severina P. lived in Germany, although
Severina P. did travel to the United States for
approximately nineteen days in 1995.
042 3. Steffen F. was, and still is employed as an
electrical engineer in the Uniformed Service of the German
Air Force at Ramstein Air Base.
043 4. Steffen F. and Severina P. began a romantic
relationship in late 1990 or early 1991. At that time
Severina P. was pregnant by another man.
044 5. Severina P.’s child, Tricia P., was born August
22, 1991.
045 6. In early 1992, Steffen F. and Severina P. began to
cohabit. Tricia P. lived with them.
046 7. Steffen F. and Severina P. were married on
December 10, 1993.
047 8. Jaime F., son of Steffen F. and Severina P., was
born on March 10, 1994, in Germany. Jaime F. is a dual
citizen of Germany and the United States.
048 9. Steffen F.’s and Severina P.’s marriage was a
stormy one. Almost immediately, the couple discussed
divorce.
049 10. On March 3, 1995, Severina P. moved out of the
family residence and took Jaime F. and Tricia P. with her.
050 11. On March 13, 1995, Steffen F., Severina P. and
their respective attorneys met to discuss separation and
shared custody of both children.
051 12. In July 1995, Tricia P. had a yeast infection,
the cause of which is unknown.
052 13. On November 13, 1995, Severina P. left Germany
with Tricia P. and Jaime F. Before leaving Germany, Severina
P. wrote a letter to Steffen F. in which she stated in part:
“As you read this letter, we are already out of the country.
If you try to find me, good luck.”
053 14. Severina P. and the two children flew from
Frankfurt, Germany, to Detroit, Michigan, where they were
met a male friend of Severina P.’s who was in the process of
obtaining a divorce. The male friend, Severina P. and the
two children drove to his home in Dayton, Ohio, stayed there
for approximately 10 days, then drove to Tucson, Arizona.
054 15. On November 15, 1995, Steffen F. received
Severina P.’s letter of November 13, 1995.
055 <* page 929> 16. Steffen F. filed a petition for
custody in the Landstuhl District Court, Family Law
Division, in Germany on January, 18, 1996.
056 17. On January 30, 1996, Severina P. filed a petition
to establish child custody in the Superior Court of the
State of Arizona, Pima County.
057 18. The Pima County Superior Court declined to
exercise jurisdiction concerning Jaime F.’s custody. This is
reflected in an order dated April 3, 1996.
058 19. On April 15, 1996, Steffen F. filed with the
United States Central Authority an application for
assistance under the Hague Convention on Child Abduction,
seeking the return of Jaime F.
059 20. The Landstuhl District Court, Family Law
Division, entered an order June 13, 1996, awarding custody
of Jaime F. to Steffen F., for the duration of the parties’
separation.
060 21. Severina P. was granted a dissolution of her
marriage to Steffen F. in August 1996 by the Pima County
Superior Court. That dissolution decree did not address any
custody issues involving Jaime F.
061 22. After Severina P. obtained the dissolution decree
in Pima County Superior Court, Steffen F. sought permanent
custody of Jaime F. in Germany. He was awarded custody by
the Landstuhl District Court, Family Law Division on
February 24, 1997.
062 23. On July 25, 1996, Steffen F. filed a Petition for
Return of Child Pursuant to the Hague Convention in this
Court.
063 24. Substantial evidence exists that Tricia P. has
been sexually abused at some point in time. The identity of
the molester was Not clearly established.
064 25. Based on the testimony of Dr. Jerry Day, a
psychologist, it is clear that Jaime F. is bonded and
attached to his mother, Respondent Severina P., and that
removal of Jaime F. from his mother at this time would pose
a grave risk of harm to Jaime F.
065 26. Based on the testimony of Dr. Jerry Day, Jaime F.
is not bonded and attached to his father.
066 27. Based on the testimony of Dr. Jerry Day, it is
highly unlikely that Jaime F. would bond and attach to
Steffen F. or any other person if Jaime’ F. were removed
from his mother.
Conclusions of Law
The Court makes the following conclusions of law:
067 1. This Court has jurisdiction pursuant to the
Convention on the Civil Aspects of Child Abduction signed at
the Hague on 25 October 1980 and the International Child
Abduction Remedies Act, 42 U.S.C. 11601 et seq.
068 2. The three elements of a cause of action for return
of an abducted child under the Hague Convention are: (1) the
child was an habitual resident, of the country from which
the child was abducted; (2) the, petitioning parent had
either sole or joint rights of custody of the child, and (3)
at the time of wrongful removal, the petitioning parent was
exercising those rights. 42 U.S.C. 11603(e)(1)(A); Hague
Convention, Art. 13.
069 3. At the time Severina P. removed Jaime F. from
Germany, Germany was Jaime F.’s country of habitual
residence within the meaning of the Hague Convention, Art 3,
and 42 U.S.C. 11603(e)(1)(A).
070 4. Under the German Civil Code 1626, Steffen F. and
Severina P. had joint custody of Jaime F. up until November
13, 1995, when Severina P. left Germany with Jaime F.
071 5. At the time Jaime F. was removed from Germany,
Steffen, F. was exercising his custody rights within the
meaning of the Hague Convention.
072 6. Severina P. removed Jaime F. from Germany
wrongfully because she removed Jaime F. to the United States
in derogation of Steffen F.’s custody rights which he was
exercising at the time of the removal.
073 7. The Court finds by a preponderance of the evidence
that Steffen F. has established the elements of a cause of
action under the Hague Convention.
074 8. Once a petitioner has made a prima facia case
under the Hague Convention, respondent must prove the
applicability of one <* page 930> of the delineated
affirmative defenses under the Convention.
075 9. Respondent has failed to prove by a preponderance
of the evidence that Jaime F. has settled into his new
environment and that Steffen F. permitted than one year to
expire before initiating proceedings for return of Jaime F.,
based upon 42 U.S.C. 11603(e)(2)(B) and the Hague
Convention, Art. 12.
076 10. Respondent has failed to prove by clear and
convincing evidence that Jaime F. should not be returned to.
Germany because his return “would not be permitted by the
fundamental principles of the requested State relating to
the protection of human rights and fundamental freedoms,”
based: upon 42′ U.S.C. 11603(e)(2)(A) and the Hague
Convention, Art. 20.
077 11. Respondent has failed to prove by clear and
convincing evidence that Steffen F. sexually abused Tricia
P.
078 12. Proof that a child has attached and bonded with a
parent and that the child would become detached and unbonded
in the event of removal from that parent may constitute a
grave risk of harm under the Hague Convention, Art. 13(b),
and 42 U.S.C. 11603(e)(2)(A)
079 13. Respondent has established by clear and
convincing evidence that there is a grave risk that Jaime
F.’s return would expose him to grave risk of psychological
harm, as set forth in 42 U.S.C. 11603(e)(2)(A) and the
Hague Convention, Art. 13(b), because Jaime F. has bonded
and attached to his mother, Severina: P., and removal from
her for an extended period of time would likely cause
unbonding and detachment and a grave risk of harm to Jaime
F.
For the foregoing reasons,
080 IT IS ORDERED that Petitioner’s Petition for Return of
Child Pursuant to the Hague Convention is DENIED and that
Jaime F. not be returned to Germany at this time.
IT IS FURTHER ORDERED that Jaime F. remain in the custody of
his mother, Severina P. until such time as custody of Jaime
F. is awarded by a court of competent jurisdiction. This
Order does not preclude Petitioner Steffen F. from visiting
his son under reasonable conditions. WMHFN06
IT IS FURTHER ORDERED that the Order of Custody Pendente
Lite filed March 6, 1997 is VACATED.
———————–
WMH FOOTNOTES
FN01 The Court, in its discussion, finds (with much
judicial wringing of hands) that the child cannot
be returned under Art. 13(b) because of the
“bonding”. The bonding occured because of the long
period of time that the child was in the custody of
the mother pending the hearing. A significant
period of this time was due to the procedural
delays, e.g., discovery, etc.
FN02 This is not quite on the mark. The sole power of
the court is to grant or deny a Petition for return
under The Convention. This does not preclude the
return of the child by some other operation of law.
See The Non-Exclusivity of The Convention on the
Civil Aspects of International Child Abduction
Published in American Journal of Family Law, Vol.
9, No. 2, Summer 1995. 9 Am.J.Fam.L. 69 (1995).
Accordingly the Court cannot make a valid order
keeping the child in the United States or ordering
custody to one parent or the other except during
the pendency of the proceeding pursuant to 42 USC
11604.
FN03 One may also wish to discuss the effect of the
concealment of the child on the one year period.
One Federal court has held that this tolls the
period. See Hemard v Hemard (N.D.Texas 1995) Civil
Action File Number 7-94-CV-110X.
FN04 Authority to use foreign citations when a treaty is
being interpreted is given by Air France v Saks
(1985) 470 U.S. 392
FN05 The Court quotes B v B from the Family Court of
Westerburg. However the child in question was only
15 months old and perhaps there is some basis for
arguing the bonding issue. This reasoning is a
“Best Interest” argument and is contra to other
decisions such as C v C (Abduction; Rights of
Custody) (UK 1989) [1989] 2 All ER 465 where the
court held that the failure of the mother to return
with the child to the UK could not be used as a
basis of Art. 13(b). See also Korowin v Korowin,
HORGEN DISTRICT COURT, Switzerland where the mother
made the same argument but it was rejected, the
court holding that the problem could be resolved by
the mother accompanying the child back to the
United States. A review of this case shows that in
effect the Federal District Court held a custody
hearing rather than a hearing on the Petition to
return.
What this decision does is permit the Respondent to
conceal the child, delay the proceedings and then
bootstrap a defense of “unbonding”.
The Court held, however, that some separation time
would not cause this, less than a few weeks. Could
not the FRG courts take the case and then make a
decision as to whether or not there would be damage
to the child? Perhaps this could be in a “Request
for Assistance” order.
The London firm of Margaret Bennett Solicitors,
after there having been discussion between Margaret
Bennett and Anne-Marie Hutchinson, have made the
following comment about this case:
In England where a primary carer parent cannot
return to the requesting State themselves and the
child is of tender years or vulnerable for other
reasons, the English court may refuse to return the
child but the court is very reluctant to accept
such arguments and the evidence supporting them
must be wholly exceptional. In the normal case the
English judges have regard to the Court of Appeal
dicta that an abducting parent cannot create an
intolerable situation for the child by refusing
themselves to return. A recent case, Re R, in
which the mother refused to return and the children
were frightened to return, is such an exception and
it sets out the circumstances in which refusal will
be allowed.
FN06 Since the Court’s only authority is to grant or
deny a petition to return and since the Court
cannot make a decision on custody, 42 U.S.C.
11601(b(4), it would seem that this order is in
excess of the Court’s jurisdiction.
——————–
1. See, 20 Am.Jur.2d Courts 164.
2. See James L. Demiis, Interpretation and Application of
the Civit Code and the Evaluation of Judicial
Precedent, 54 La. L.Rev. I (1993).