USA – MI – Harkness v Harkness 1998 ( Return ordered on appeal) HARKNESS v HARKNESS. The mother applied for return of the children from Michigan, USA to Germany. The Circuit Court ordered their return. The case is on appeal to the Michigan Court of Appeals. The appeals court affirmed the lower courts order to return the children to Germany.
Harkness v Harkness (Mich.App. 1998)577 N.W.2d 116
7 International Abduction [USA 1998]
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STATE OF MICHIGAN
COURT OF APPEALS
GABY HARKNESS,
Petitioner-Appellee,
v Docket No. 201378
Ingham Circuit Court
JAMES EDWARD HARKNESS, LC No. 96-091319-DZ
ROSS D. RIED and
MARY H.M. RIED,
Respondents-Appellants.
Before: O’Connell, P.J., and MacKenzie and Gage, JJ.
30 Jan 1998
<* page 118>
GAGE, Judge.
001 In this appeal, we are asked to determine the
appropriate country of residence of two minor children.
Petitioner Gaby Harkness is a German citizen. Respondent
James Harkness is an American citizen enlisted in the United
States Army. Both of their minor children apparently have
dual citizenship. The other respondents are the children’s
paternal grandparents. FN01 Pursuant to the Hague
Convention on the Civil Aspects of International Child
Abduction (the Hague Convention), petitioner petitioned the
circuit court for the return of the two children from their
grandparents’ home in Michigan to the Federal Republic of
Germany. The circuit court granted petitioner’s petition
and ordered that the children be returned to petitioner’s
custody. Respondent appeals that order as of right. We
affirm.
002 Petitioner Gaby Harkness and respondent James Edward
Harkness met in 1989 in Germany, where respondent was then
stationed. Their first child was born in Germany prior to
their 1990 marriage. When respondent was assigned to serve
in the Persian Gulf War, the couple agreed that petitioner
and their daughter would spend time with respondent’s
parents, Ross and Mary Ried, in Mason, Michigan. Petitioner
testified that she and the Rieds did not get along well, and
she and the child soon returned to Germany. After the war,
respondent was stationed in Fort Stewart, Georgia, and
petitioner and their daughter returned to the United States.
The family lived in Georgia for two to two-and-one-half
years, where a second daughter was born. They returned to
Germany in 1993 and established an apartment in Baumholder.
003 In 1995, respondent was reassigned to Macedonia. He
suggested that petitioner and the children again return to
the United States for a visit with his parents. Here, the
parties’ versions of events differ. According to
petitioner, she planned to visit with her in-laws and then
return to Germany with the children. According to
respondent, the parties decided that petitioner and the
children would remain in the United States for the duration
of his stay in Macedonia. Petitioner and the children
arrived in Michigan near the end of July 1995. The parties
agree that after three or four weeks with the Rieds in
Michigan, petitioner returned to Germany without the
children. Petitioner contends she left the children in the
United States because their travel papers were inexplicably
missing. Respondent avers that he had returned to Germany
from Macedonia early, the couple wished to spend time alone
together, and they mutually decided to leave the children in
the care of his parents in Michigan.
004 When petitioner came to the United States for this
last visit, she purchased a round trip ticket for herself
but purchased only one-way tickets for the two girls.
Petitioner explained that, as a German citizen, she was
required to purchase a round trip ticket for herself, but
she did not have sufficient funds to purchase three sets of
round trip tickets. She therefore planned to buy return
tickets for the girls in the United States. According to
petitioner, she packed all of her official papers, including
the children’s birth certificates and passports, in a
particular bag that she had with her during her last visit
to Michigan. When she decided to leave Michigan, the Rieds
drove petitioner and the children to the airport. At the
airport, according to petitioner, she discovered that the
bag was missing. Because she could not prove that the
children were hers, she left the children with her in-laws
and returned to <* page 119> Germany alone. The bag was
eventually found in the family’s apartment in Baumholder,
Germany.
005 In December 1995, respondent told petitioner he wanted
a divorce. Petitioner contacted a lawyer in Germany and
filed for divorce and custody of the children. In March
1996, she filed for return of the children to Germany under
the Hague Convention. There remains some question about
whether respondent was notified of the German custody
hearing. However, this issue was not raised in this appeal.
Respondent testified that he received some papers in German
in June 1996 but was unable to read them or find a
translator through the Army’s Judge Advocate General’s
office. Petitioner testified that her German attorney
contacted respondent and that she personally informed
respondent’s parents about the hearing.
006 Pursuant to the Hague Convention, a German court found
that the couple’s last joint customary place of residence
was Germany, and German law therefore governed the couple’s
legal relationship and their relationship to their children.
Under German law, each parent had the right to exercise
joint parental custody of the children until a contrary
decision had been entered by a court of law. The German
court further found that the retention of the children with
their grandparents in Michigan against the wishes of their
mother was wrongful and ordered their return to petitioner’s
custody in Germany.
007 Upon petitioner’s petition, also pursuant to the Hague
Convention, a second hearing was held in Ingham Circuit
Court to determine whether the children should be returned
to petitioner in Germany. The circuit court found that
service on respondent appeared to comport with German law
and that it doubted respondent’s story about being unable to
find a translator on an American army base in Germany. The
court further held that the habitual residence of the
children was in Germany and that petitioner had made
“concerted efforts” to seek return of the children to
Germany. The circuit court ordered the return of the
children to petitioner’s custody in Germany.
008 Respondent now argues that the circuit court erred in
holding that the children’s habitual residence under the
Hague Convention was in Germany and that petitioner was
exercising her parental custody rights at the time the
children were retained in the United States. These issues
have not before been addressed by Michigan courts and are
therefore of first impression. We review the circuit
court’s factual determinations for clear error. Friedrich v
Friedrich [hereinafter Friedrich II], 78 F3d 1060, 1064 (CA
6 1996); People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).
The circuit court’s interpretation of and conclusions about
American, foreign, and international law are reviewed de
novo. Friedrich II, supra; Beason v Beason, 435 Mich 791;
460 NW2d 207 (1990).
009 The Hague Convention 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.” The Hague Convention,
Preamble. The Federal Republic of Germany and the United
States are signatory nations. In the United States, the
enabling legislation is codified as the International Child
Abduction Remedies Act, 42 USC 11601 et seq. The
Convention’s goal is “to curb international abductions of
children by providing judicial remedies to those seeking the
return of a child who has been wrongfully removed.” Tyszka
v Tyszka, 200 Mich App 231, 234; 503 NW2d 726 (1993).
010 The Hague Convention provides that a removal or
retention of a child 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 the removal or retention those
rights were actually exercised, either jointly or
alone, or would have been so exercised but for the
removal or retention.
The rights of custody mentioned in sub-paragraph (a)
above, may arise in particu- <* page 120> lar by
operation of law or by reason of a judicial or
administrative decision, or by reason of an agreement
having legal effect under the law of that State. [The
Hague Convention, Article 3.]
011 Thus, pursuant to the Convention, to establish that
her children were being wrongfully retained in the United
States, petitioner had to prove the following three
elements: (1) the children were “habitual residents” of
Germany immediately prior to their retention in the United
States; (2) petitioner had either sole or joint rights of
custody concerning the children under German law; and (3) at
the time the children were retained in the United States,
petitioner was exercising those custodial rights. The Hague
Convention, Article 3. Petitioner’s burden of proof is set
forth in USC 11603(e)(1), which provides in pertinent part:
A petitioner in an action brought under subsection (b)
[judicial proceedings under the Convention for return
of a child or securing rights of access] shall
establish by a preponderance of the evidence-
(A) in the case of an action for the return of a
child, that the child has been wrongfully removed or
retained within the meaning of the Convention.
012 Pursuant to Article 16, after receiving a petition
notifying it of a wrongful retention or removal, a judicial
authority “shall not decide on the merits of rights of
custody until it has been determined that the child is not
to be returned under this Convention or unless an
application under this Convention is not lodged within a
reasonable time following receipt of notice.” The Hague
Convention, Article 16; Tyszka, supra at 235. Moreover,
under Article 12, if a court finds a wrongful retention and
none of the exceptions found in Article 13 apply, the court
of the signatory state “where the child is . . . shall order
the return of the child forthwith.” The Hague Convention,
Article 12; Id. The issue of custody is then decided in the
place of habitual residence by a tribunal with
subject-matter jurisdiction. Id.
013 The Convention provides several exceptions to the
mandatory return of the child. The person opposing return
must establish that
(a) the person, institution or other body having the
care of the person of the child was not actually
exercising the custody rights at the time of removal
or retention, or had consented to or subsequently
acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.
[The Hague Convention, Article 13.]
014 In addition, the judicial authority may refuse to
return the child if return “would not be permitted by the
fundamental principles of the requested State relating to
the protection of human rights and fundamental freedoms”
(The Hague Convention, Article 20), or the authority “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.” (The Hague Convention, Article
13.) The authority may also refuse to return the child if
more than one year has elapsed from the date of the wrongful
removal or retention, and it is demonstrated that the child
is now settled in his or her new environment. (The Hague
Convention, Article 12.) A respondent opposing the return
of a child retained in the United States must establish the
exceptions set forth in Article 13b (return poses a grave
risk) or Article 20 (return is not permitted by American
human rights principles) by a preponderance of the evidence.
USC 11603(2)(A) (WMH Note: This should be by clear and
convincing evidence). A respondent must establish any other
exceptions to mandatory return set forth in Articles 12 or
13 by a preponderance of the evidence. USC 11603(2)(B).
015 In the present case, the circuit court determined that
the last established residence of the parties was in Germany
because this was where the parties had last resided together
and where they still maintained an apartment. The court
further determined that Michigan was a temporary residence
for the mother and children but was never the residence of
the father with the children. The court noted that
respondent was never the “intended custodian” of the
children in the United States and that the children had been
living with their grandparents who had no custody rights to
them. The circuit court <* page 121> deferred to the German
court on the custody issue and noted that petitioner was “in
fact exercising parental custody and parental rights with
the children” throughout the entire period that respondent
was stationed in Germany, Macedonia, and Bosnia. The court
also determined that although petitioner left the children
with the Rieds when she returned to Germany, she did not
abandon them and did not agree that they would permanently
reside with the Rieds. Therefore, determined the circuit
court, the trip to the United States was purely for
visitation and not to establish a new residence.
016 Respondent had also argued to the circuit court that
the children would be placed in grave risk if they were
returned to Germany. The court ruled that although there
was some evidence of modes of discipline by petitioner of
which the circuit court did not approve, nothing rose to the
level of grave risk within the meaning of the Convention.
Moreover, whether the move would be psychologically damaging
to the children did not constitute a grave risk in
determining the issue of which jurisdiction would decide the
issue of custody. The court further stated that “German law
is similar to American law and custody rights are only
terminated by judicial action.” Respondent does not argue
on appeal that the circuit court erred in its determination
that grave risk to the children was not present in this
case.
017 We hold that the circuit court did not clearly err in
its finding that petitioner had established by a
preponderance of the evidence that she was exercising her
custodial rights at the time the children were retained in
the United States. “Custody rights,” under the Convention,
“may arise in particular by operation of law or by reason of
an agreement having legal effect under the law of the
State.” Hague Convention, Article 3; Friedrich II, supra at
1064. “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.” Id.
018 Petitioner’s testimony clearly established that she
did not abandon the children with the Rieds. There was no
testimony indicating that either party planned to leave the
children with the Rieds on a permanent basis. Although
petitioner apparently waited seven months before beginning
proceedings to compel return of the children to Germany, it
also appears that respondent told her he would return to the
United States to get the children but changed his mind after
the parties began divorce proceedings in December 1995.
Petitioner began proceedings under the Hague Convention just
three months later in March 1996.
019 The more difficult issue is whether the children were
“habitual residents” of Germany prior to the time petitioner
left them with the Rieds in the United States. Neither the
Convention nor the enabling legislation defines the term
“habitual resident.” Little case law exists on the
construction of the term. Friedrich v Friedrich
(hereinafter Friedrich I), 983 F2d 1396, 1400-1401 (CA 6
1993). As a consequence, the facts and circumstances of
each case must be assessed. In re Prevot, 59 F3d 556, 559
(CA 6 1995). The intent is for the concept to remain fluid
and fact-based without becoming rigid. Id. The British
High Court of Justice made the following statement in In re
Bates, No CA 1122.89, Family Court Division, Royal Court of
Justice, United Kingdom (1989):
It is greatly to be hoped that the courts will resist
the temptation to develop detailed and restrictive
rules as to habitual residence, which might make it as
technical a term of art as common law domicile. The
facts and circumstances of each case should continue
to be assessed without resort to presumptions or
presuppositions. [Id., quoting Dicey & Morris, The
Conflicts of Laws 166 (11th ed).]
020 As noted, the determination of “habitual residence”
depends largely on the facts of the particular case. For
guidance in our analysis, we have reviewed two similar cases
decided by federal courts. In Feder v Evans-Feder, 63 F3d
217 (CA 3 1995), the parties were both American citizens who
met in Germany in 1987. They had one child while living in
Germany. In 1990, the family moved to the United States
when Mr. Feder accepted employment at a bank in
Philadelphia. In August or September 1993, he was offered a
position in Australia. Despite Mrs. Feder’s reservations,
the couple moved to Australia in January 1994. Id. at
218-219. In June 1994, Mrs. Feder took the child and went
to the United States, allegedly to visit her parents. Id.
at 219-220. In July, when Mr. Feder went to visit them in
their still unsold house in Pennsylvania, he was served with
a complaint seeking a divorce and custody of the child.
021 Mr. Feder commenced a proceeding in Australia,
applying for the return of the child under the Hague
Convention. The Australian court issued an opinion
declaring that the couple and their child were habitual
residents of Australia immediately prior to Mrs. Feder’s
retention of the child in the United States, that Mr. Feder
had joint rights of custody under Australian law and was
exercising those rights at the time of retention, and that
Mrs. Feder’s retention was wrongful within the meaning of
the Hague Convention. Id. at 220.
022 Mr. Feder then filed a petition in the federal
district court in Pennsylvania, which held that the habitual
residence of the child was the United States and that the
mother had not wrongfully detained him here. Id. at
220-221. The Third Circuit reversed the district court’s
decision, holding that the child’s habitual residence was
Australia. The court stated:
Guided by the aims and spirit of the Convention and
assisted by the tenets enunciated in [Friedrich I] and
[In Re Bates], we believe that a child’s habitual
residence is the place where he or she had been
physically present for an amount of time sufficient
for acclimatization and which has a “degree of settled
purpose” from the child’s perspective. We further
believe that a determination of whether any particular
place satisfies this standard must focus on the child
and consists of an analysis of the child’s
circumstances in that place and the parents’ present,
shared intentions regarding their child’s presence
there. [Id. at 224.]
023 When the court applied its definition of habitual
residence to the facts of the case, it concluded that
Australia was the child’s habitual residence immediately
prior to his retention in the United States by Mrs. Feder.
The court noted that the child had stayed in Australia for
six months, “a significant period of time for a
four-year-old child.” Id. The court also stated that the
couple had both agreed to move to the country and live there
with one another and their son. Id. Finally, the court
noted that the district court had placed undue emphasis on
the fact that the child had spent most of his years in the
United States, and that the court had disregarded the
present, shared intentions of the parties. Id
.
024 We also review Friedrich I, supra, in which the father
was a German citizen and the mother was an American citizen
stationed in Germany. The parties married in December 1989
and had a child that same month. The child lived in Germany
until early 1991. In May 1991, the child accompanied Mrs.
Friedrich to the United States for a ten-day visit, after
which they returned to Germany. On August 1, 1991, Mrs.
Friedrich and the child left for the United States without
Mr. Friedrich’s knowledge or consent. She began divorce
proceedings in Ohio on August 9, 1991. Mr. Friedrich filed
a claim in Germany for parental custody on August 22, 1991,
and the German court granted Mr. Friedrich custody of the
child. He then filed an action in the United States,
alleging that the child had been wrongfully removed from
Germany in violation of the Hague Convention, but the
district court denied his claim. Id. at 1398-1399.
025 The Sixth Circuit reversed the district court, finding
that the child’s habitual residence was Germany. The court
relied heavily on the fact that the child had spent most of
his life in Germany. In so concluding, the court stated
that in determining habitual residency it “must look back in
time, not forward. . . . [F]uture plans . . . are irrelevant
to our inquiry.” Id. at 1401. The court must also “focus
on the child, not the parents, and examine past experience,
not future intentions.” Id. at 1401.
026 The present case is difficult in that the children
spent roughly equal amounts of time <* page 123> in the
United States and Germany. Furthermore, the case may be
distinguished from Feder in that the parties apparently had
not agreed upon which country they would maintain as their
long-term residence. Both parties testified that they had
discussions about where they would live after respondent was
released from the military. FN02 According to petitioner,
respondent wanted to return to the United States, but
petitioner did not want to return because she did not get
along well with his parents. Petitioner stated that the
parties never resolved the issue of where they would live
after respondent was released from the army. She denied the
existence of any agreement that the parties would live in
the United States permanently. According to respondent,
however, he told petitioner that he could not find
employment in Germany because of his deficient German
language skills. Respondent testified that the parties
planned to move to the United States after he was discharged
from the army.
027 As the Sixth Circuit noted, however, the parties’
future intentions are not relevant to the matter at hand,
except insofar as the parties’ actions in the past
correspond with their testimony about what they agreed upon
and intended as far as residency. Thus, this Court should
look primarily to the children’s past experiences.
Friedrich I, supra. It appears that the children only had
two “permanent” residences. The first was in Fort Stewart,
Georgia, where the parties lived from 1990 or 1991 until
1993. The second was in Baumholder, Germany, where the
parties resided from 1993 until 1995 (and petitioner
apparently still resides). The trial court did not consider
the home of the Rieds to be a “permanent” residence, finding
that petitioner was only visiting respondent’s parents and
had no intentions of moving to Michigan. In any case, the
court noted that Mason, Michigan had never been the
residence of the father and the children. The only places
that the parties had lived together with their children were
Fort Stewart and Baumholder.
028 Respondent further argues that the trial court erred
in equating “habitual residence” with the last established
residence. While we agree that “habitual residence” should
not simply be equated with the last place that the child
lived, the court’s opinion does not indicate that this was
its only consideration. As noted in Feder, supra at 224, a
determination of habitual residence must take into account
whether the child has been physically present in a country
for an amount of time “sufficient for acclimatization.”
029 In the present case, the court noted that the
apartment in Germany was the last place the parties had
resided together as a family unit. The court also noted
that the parties kept the apartment in Germany and that the
majority of their belongings were still in the apartment.
Thus, the court found no indication that the parties
intended to abandon that residence and to establish a new
residence in the United States. The fact that the parties
kept most of their belongings in Germany rather than the
United States does not negate the assertion that they
planned to move to the United States. It does, however,
lend credibility to petitioner’s assertion that she never
intended to move, and she thought the parties would settle
down in Germany on a more permanent basis after respondent
was released from the military. Given these factors, we
conclude that the trial court did not err in holding that
the habitual residence of the parties’ children was Germany.
030 Respondent also argues that petitioner abandoned the
children when she left them with the Rieds, and therefore
she had acquiesced in their retention. The trial court
disagreed with this assertion, noting that petitioner had
made “concerted efforts” to remedy the situation and to seek
return of the children. Even if the parties originally
planned to leave the children with Mr. and Mrs. Ried for a
period of time while they stayed in Germany, petitioner’s
testimony clearly establishes that she intended to take the
children with her when she arrived at the Detroit airport in
August 1996. Petitioner’s delay in instituting proceedings
to recover the children can be attributed to her reliance on
respondent’s statement that he would return to the United
States to retrieve the children, and that this plan changed
when he told petitioner he wanted a divorce. Petitioner
began proceedings under the Hague Convention within three
months after she learned that respondent planned to divorce
her.
031 We note that the parties’ testimony was often
contradictory, and the parties testified that they had
different understandings of their future plans and of their
intent to leave the children with the Rieds when petitioner
returned to Germany in 1995. The circuit court noted,
however, that it had taken into account its own assessment
of the credibility of the witnesses in making its decision.
As the circuit court was clearly in the best position to do
so, this Court should defer to that court’s factual findings
unless they appear clearly erroneous. See People v Brannon,
194 Mich App 121, 131; 486 NW2d 83 (1992).
032 We conclude that the circuit court did not err in
determining that Germany was the children’s “habitual
residence” and that petitioner was exercising her custody
rights at the time of the wrongful retention in the United
States. We therefore affirm its order returning the
children to Germany.
Affirmed.
/s/ Hilda R. Gage
/s/ Peter D. O’Connell
/s/ Barbara B. MacKenzie
Footnotes
————————-
1 Although Ross Ried and Mary Ried are listed as parties
to the action, the designation “respondent” throughout
the opinion refers to James Harkness. The custody
battle is actually between Gaby and James Harkness.
The Rieds would not receive permanent custody of the
children under either German or American law.
2 Respondent was originally scheduled to be released
from the army in 1996, but he re-enlisted. His
current out-date is January 2, 1999. He testified,
however, that he had contacted the Army Community
Service Program in an effort to be released earlier on
a hardship discharge.