USA – MA – WANNINGER (Return ordered) WANNINGER v WANNINGER. The mother brought the three children to the US for a visit that was to last six weeks. The mother, through a neighbor, informed the father she was not returning to Germany. After getting a ruling in the German courts that the mother did wrongfully retain the child in the US, the father applied in the US District court for the return of the children under the Hague Convention and ICARA. The Court ordered the return of the children to Germany.
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Wanninger v. Wanninger (D.Mass. 1994)850 F.Supp. 78
MEMORANDUM REGARDING PETITION FOR RETURN OF CHILDREN
PONSOR, District Judge
16 Apr 1994
I. INTRODUCTION
Petitioner, Manfred Wanninger (“Manfred”) alleges that his wife
Catherine Wanninger (“Catherine”) wrongfully retained their
children in the United States without his consent. He now seeks
the immediate return of his three minor children to Germany. On
April 11, 1994, Manfred appeared before this court ex parte
seeking a warrant in Iieu of a writ of habeas corpus for the
return of his children pending further action pursuant to the
International Child Abduction Remedies Act (“ICARA”), 42. U.S.C.
11603(b). The court denied this request but did require that the
respondent, Catherine Jean Wanninger, appear with the three
children before the court later the same day. At that hearing,
with both parties present, the court established a scheduling
order and set the matter down for further hearing today.
In ruling on petitioner’s motion, the court must decide whether
Catherine’s conduct — remaining in the United States with the
three children and not returning to Germany — was “wrongful” as
defined by the Hague Convention. As Justice Rigler noted in
Sheikh v. Cahill (1989) 145 Misc.2d 171 [546 N.Y.S.2d 517],
modern advances in travel has produced numerous benefits to
society. However, this increase in mobility has also caused
major problems in the areas of matrimonial law and custody
rights. “One of the hardest problems concerns the removal of a
child from the jurisdiction by one parent without the consent of
the other.” Id, 546 N.Y.S.2d at 518. This case is no exception.
II. FACTS
The facts of this case are as follows. Manfred is a German
citizen who met his wife Catherine, a U.S. citizen, while
studying at the University of Massachusetts in Amherst. They
married and took up residence in Germany in November, 1987. The
couple has three children: Natascha, age six; Tatjana, age four;
and Sebastian, age three. All three children have lived in
Germany their entire lives.
On November 25, 1993, Catherine took the children to Amherst,
Massachusetts for a visit with her parents. Originally, her plan
was to stay in the United States for six weeks. But after she
arrived to the United States, she had second thoughts about
returning to Germany with her children and, it seems, questioned
her marriage to Manfred. On January 12, 1994, Catherine
contacted a German neighbor and asked her to tell Manfred that
she had decided to stay in the Amherst area with the children and
would not return to Germany.
At first, Manfred attempted to reconcile his problems with
Catherine. He came over to the United States in mid-February to
convince her to return home with the children. After learning
that Catherine did not intend to return to Germany with the
children, Manfred sought relief in the German courts; On April 6,
1994, the German Family Court (Court of Schwetzingen) issued a
ruling that Catherine had violated the Hague Convention by
wrongfully retaining the children in the United States. Manfred
then petitioned this court, pursuant to 42 U.S.C. 11603(b), for
relief under the Hague Convention on the Civil Aspects of
International Child Abduction (the “Convention”) implemented by
ICARA. Manfred seeks an order by this court to allow him to
return to Germany with his children immediately.
III. DISCUSSION
The Hague Convention is an international treaty designed “to
protect custody rights on a global scale” and was adopted
to protect children 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, as well as to secure
protection for rights of access.
51 Fed.Reg. 10,498 (1986); Meredith v. Meredith (D.Ariz. 1991)
759 F.Supp. 1432, 1433.
In order to establish this goal, the Convention requires
signatories to act promptly to restore the situation that existed
prior to a child’s removal from his or her habitual residence.
Currier v. Currier (D.N.H. 1994) 845 F.Supp. 916. Both the
United States and Germany are signatories to the Hague
Convention.
In 1988 Congress passed the International Child Abduction
Remedies Act (“ICARA”), 42 U.S.C. 11601 et seq. (1988), in order
to establish procedures to implement this aspect of the Hague
Convention in the United States. David S. v. Zamira S. (1991) 151
Misc.2d 630 [574 N.Y.S.2d 429]. Taken as a whole, these
procedures are aimed at maintaining the status quo and deterring
parents from crossing international boundaries in search of a
more sympathetic court. Friedrich v. Friedrich, 983 F.2d 1396,
1400 (6th Cir. 1993).
The Convention authorizes a federal district court to determine
the merits of the abduction claim but does not allow it to
consider the merits of the underlying custody dispute. Currier v.
Currier (D.N.H. 1994) 845 F.Supp. 916, citing Friedrich v.
Friedrich (6th Cir. 1993) 983 F.2d 1396, 1399; Meredith v.
Meredith (D.Ariz. 1991) 759 F.Supp. at 1434. Therefore, the
court’s inquiry is limited to whether Catherine’s retention of
the children was “wrongful” under the Convention.
In order to prevail, the petitioner has the burden of proving by
a preponderance of the evidence that the three children were
“wrongfully retained” within the meaning of the Convention.
Currier v Currier (D.N.H. 1994) 845 F.Supp. 916, 42 U.S.C.
11603(e)(1)(A). “Wrongful retention” occurs 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 removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.
Convention, Art. 3.
If the petitioner carries his burden of proving that the
retentioni was “wrongful,” the court is required to order
immediate return of the children unless the respondent meets one
of four limited exceptions. These exceptions are: (1) grave risk
that return of the children would expose them to physical or
psychological harm; (2) violation of fundamental principles of
the requesting State relating to the protection of human rights
and fundamental freedoms; (3) delay more than one year after the
children have become settled in a new environment; or (4) consent
by the petitioner to the removal or retention. The first two
exceptions must be proved by clear and convincing evidence, while
the latter two need only be proved by a preponderance of the
evidence. 42 U.S.C. 11603(e)(2)(A) and (B).
Based on the facts before it today, the court is compelled to
grant petitioner’s request to return to Germany with the three
children. There is no dispute that, except for a few visits to
Catherine’s parents in the United States, the three children have
lived in Germany. All three children were born in Germany and
attend school there. This being the case, the court finds that
the children were “habitually resident” in Germany imme diately
prior to their removal by Catherine. Moreover, prior to their
removal, petitioner was exercising his lawful rights of custody
over the children. The issue of custody must be addressed under
German law. Friedrich v. Friedrich, 983 F.2d at 1402.
Petitioner has attached a copy of the relevant provision of the
German Civil Code which gives both parents joint custody of the
children. See Petitioner’s Exhibit D, German Civil Code 1626.
Because the children were habitually resident in Germany and
because Manfred is entitled to joint custody, they must return
to Germany absent some exception.
None of the statutory exceptions applies to this case. It is
undisputed that the children arrived in the United States some
time in November of 1993, less than one year from the time
Manfred instituted this proceeding to return the children to
Germany. Therefore, the exception relating to the children being
settled in a new environment for more than one year is
inapplicable. Respondent is left with only three exceptions, all
of which are construced very narrowly, and are ot warrnted by the
facts in this case.
Respondent’s central argument is that, even if petitioner has met
his initial burden of proof, the children should not be returned
to Germany because petitioner acquiesced to the retention of the
children in the United States. To invoke this exception,
respondent must prove by a preponderance of the evidence that
petitioner consented to or subsequently acquiesced to their
retention. Even if one of the exceptions is found applicable, the
court is not required to refuse a return order. Levesque v.
Levesque (D.Kan.1993) 816 F.Supp. 662, 667.
In support of her position, Catherine offers the following
evidence. First, during an argument sometime in August or
September of 1993, Manfred told her to “pack up and go with the
children back to the United States.” Second, Catherine claims
that when she had resided in Amherst for about one month, Manfred
wrote to her and informed her that he would travel to the United
States to talk about reconciliation. During this period, Manfred
wrote to Catherine and expressed an interest in solving their
marital problems. Catherine claims that in these letters Manfred
acquiesced to the children’s retention in the United States and
that he reaffirmed this position when he visited in February of
1994. According to Catherine, Manfred wanted to reunite the
family and agreed that she and the children could stay in Amherst
during the period of attempted reconciliation. Id. at paragraph
13. Catherine maintains that this evidence is sufficient to
support a finding that Manfred acquiesced to the children staying
in Amherst.
In making its determination, it has not been necessary for the
court to take evidence. The facts are largely uncontested. The
sole area of confusion revolves around whether Manfred had
knowledge of and consented to Catherine’s initial decision in
November 25, 1993, to travel to the United States with the
children. The personal letters written by Manfred to Catherine
after she left Germany seem to contradict his position that he
did not know that Catherine and the children were leaving for the
United States. However, even accepting Catherine’s position that
Manfred consented to her taking the children to the United States
for a limited period, it does not follow that Manfred acquiesced
to the children’s permanent retention in the United States once
he realized that his marriage was irreconcilable. The Hague
Convention covers both virongful removal and wrongful retention.
The sequence of events and actions taken by Manfred strongly
supports the conclusion that Manfred did not agree that the
children remain in the United States for an indefinite period of
time. Catherine and the children left Germany on November 25,
1993. By January of 1994 Manfred had communicated to Catherine
his intention to visit her and the children to work out their
marital difffculties. This visit was postponed at the request of
Catherine, who asked Manfred to delay his trip. Nevertheless, in
mid-February Manfred arrived in Amherst unannounced and stayed
for approximately two weeks. During this time, he visited the
children and participated with Catherine in counseling sessions
with a priest of the Episcopal Church in Amherst.
After realizing that his attempt to reunite his family was
fruitless, Manfred returned to Germany. Within a few days of
arriving home, he filed a petition with the German courts for the
return of his children. Moreover, throughout the entire period
when the children and Catherine resided in Amherst, Manfred
attempted to keep in continual contact with them by writing
letters and calling om the telephone. Based on these facts,
Catherine cannot prove by a preponderance of that Manfred
acquiesced to the children’s retention in the United States.
In further support of her position that Manfred acquiesced that
the children should remain in the United States, Catherine points
to statements made by Manfred in personal Ietters to written to
her and to conversations with Reverend Clark. This evidence,
Catherine claims, shows that Manfred agreed that the children
should remain in the United States while they continued to work
on their marriage. As a preliminary matter, the court is doubtful
as to the admissibility of Reverend Clark’s statements regarding
conversations he had with the Wanningers in his role as a
pastoral counsellor. However, even if respondent were able to get
over this hurdle and show this is not privileged information or
that Manfred waived his privilege, the court’s decision is not
altered by Reverend Clark’s submission.
The letters and conversations between Catherine and Manfred
relate to Manfred’s attempt to reconcile his marriage and return
home to Germany with his wife and their three children. These
conversations do not support a finding that he acquiesced to the
retention of the children in the United States. The facts of the
English cases [WMH FN01] offered by respondent are inapposite.
To conclude, if a custody dispute is to occur, it will be in
Germany and not the United States.
Instructive in the court’s ruling is Currier v. Currier (D.N.H.
1994) 845 F.Supp. 916, whose facts are remarkably similar to
those before the court. Currier involved a custody dispute
between petitioner Gabriel Currier, the children’s mother, a
German citizen, and Richard Currier, the children’s father, an
American citizen. A German court gave temporary custody of the
two children to Gabriel during separation proceedings. After
counseling proved fruitless, the Curriers decided to divorce.
On January 27, 1994, Gabriel signed an agreement drafted by
Richard’s attorney granting Richard sole custody of the children.
The next day, realizing the full effect of her decision, Gabriel
attempted to revoke the agreement, claiming that she signed it
under duress and in response to threats by Richard. In an ex
parte decree, a German Family Court ordered Richard to return the
children to Gabriel.
After she obtained the order, Gabriel attempted to contact
Richard and demand return of the children. However, Gabriel was
too late. While she was attempting to obtain a court order,
Richard and the children boarded a plane to the United States and
settled in New Hampshire.
Gabriel petitioned the United States District Court of New
Hampshire for relief under the terms of the Convention,
requesting the return of the two children to Germany. After a
thorough analysis of this situation, the district court granted
Gabriel’s petition and ordered that the children be sent back to
Germany The court reasoned that Richard’s removal of the children
was “wrongful” within the meaning of the Convention because,
under German law, Gabriel had the right to custody of the
children at the time they were removed. Finding that Richard
failed to meet any of the exceptions under the Convention, the
court ordered that the children return to Germany with their
mother.
Similarly, in this case, the court is left with only one
conclusion. The court must grant the petitioner’s motion and will
allow him to take the children back to Germany.
IV. CONCLUSION
For all of the reasons stated above, the court hereby ALLOWS the
Petition for Return of Children to the Petitioner. The parties’
three children, Natascha, Tatjana and Sebastian, are ordered to
return to Germany in the custody of the petitioner. In addition,
counsel for petitioner will be given until April 23, 1994, to
file a request for attorney’s fees and costs. Counsel for
respondent will file his opposition by May 1, 1994.
For Petitioner:
Kenneth P. Neiman, Anne V. Romano,
Flerst & Neiman
Northhampton, MA
For Respondent:
William E. Hart, David R. Kaplan
Brown, Hart & Kaplan
Amherst, MA
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1. See, for example, Re A and another (minors) (abduction:
acquiescence) [1992] 1 All ER 929, CA. This is downloadable
as INREA2.UK.