USA – NJ – LOOS – 1994(1994) (Return denied) (Custody rights in Germany)(Mother had a right to take child) LOOS v MANUEL. This case does not involve the parents of the child. The child in question, Thomas, is currently residing with his maternal grandmother in Union, NJ.The petitioners are Ute and Klaus Loos. Ute is the sister of another man, Bernd Karkoseh, the mother had a child with. The second child, Kjhara, is not a subject of this hearing. The petitioners want the court to order the child be returned to Germany. The court ordered that the child not be ordered back at this time. The court favored maintaining the present status.
Loos v Manuel (N.J.Super.Ch. 1994)651 A.2d 1077 06 May 1994
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I. INTRODUCTION:
Petitioners seek relief under the 1980 Hague Convention on the
Civil Aspects of International Child Abduction (the Convention)
and the implementing statute, the International Child Abduction
Remedies Act (ICARA), 42 U.S.C. 11601 to 11610. Petitioners
are German citizens residing in Neustadt, Germany. They invoke
the Convention seeking to have this court direct the return to
them of Thomas Joachim Manuel. Thomas is not quite six, having
been born June 24, 1988. FN 1
II. FACTS:
Unlike many proceedings under the Convention, this case is not
between contending parents. Thomas’ mother, Joy Manuel, has not
been served and has not participated in this proceeding. All
other parties have stipulated that despite bona fide efforts,
they have been unable to locate her, although they believe she is
now in Germany. FN2 There is no indication that Thomas’ father
is a factor in his life, nor is the father a party to this
proceeding.
The respondents (in addition to Joy Manuel) are Caroline Gross,
who is Joy Manuel’s natural mother (and thus is obviously also
Thomas’ grandmother), together with Gross’ husband, Joachim.
Thomas has been living with the Grosses at their home in Union,
New Jersey, since Easter Sunday, April 3, 1994. Petitioner Ute
Loos is not a blood relative of Thomas. Her connection with
Thomas is through her brother, Bernd Karkoseh. Karkoseh, through
a liaison with Thomas’ mother, fathered the second child of Joy
Manuel, a daughter named Kjhara, born June 18, 1991. Petitioner
Klaus Loos is the husband of Ute Loos. Ute Loos is a housewife
and Klaus Loos is a taxi driver. Caroline Gross is a bookkeeper
doing accounting work for a company and Joachim Gross is a
self-employed dealer in antiques and collectibles.
Thomas’ odyssey has taken him through five years of life in
Germany and has brought him from Germany to the United States.
Petitioners want the odyssey to continue. They assert that under
the Convention he should be returned to them in Germany and that
they can provide good care and a stable home for him there. The
Grosses want to keep Thomas living with them in New Jersey. A few
words about Thomas’ background are in order.
In mid-1988, Thomas’ mother, Joy Manuel moved in with Karkoseh as
part of the relationship from which Kjhara Manuel was born. They
resided in the same apartment building as the Looses, but in a
different apartment unit. Joy Manuel moved out of that house,
apparently taking Thomas with her for at least a brief period,
after her relationship with Karkoseh ended in 1992. Petitioners
claim that in February 1992 Thomas began staying in their home in
Neustadt during the daytime, and that he lived with them
beginning in October 1992. In late October 1993, when Thomas was
residing with petitioners, she took the children for what she
said would be a visit, but instead she left Germany for New
Jersey, taking Thomas and Kjhara with her.
Manuel and the children lived in New Jersey with the Grosses off
and on from November 1993 until January 1994. She had Thomas
admitted to the children’s psychiatric ward of Elizabeth General
Hospital for twenty-eight days, beginning just after Christmas
1993. After that, she left with the two young children to stay at
the home of Carol McMillan, her grandmother (who is also Caroline
Gross’ mother and Thomas’ great-grandmother) in Milford,
Pennsylvania.
On Easter Sunday 1994, the Grosses drove to Pennsylvania because
they had just learned that Manuel had recently departed with
Kjhara for an unannounced destination, leaving Thomas behind in
Pennsylvania. Since Caroline Gross’ mother was unable to care
for Thomas, the Grosses brought him back to their home in Union,
New Jersey, where he has since resided. The Grosses are in their
mid-forties, and they speak fluent German, as does Thomas. In
fact, Joachim Gross is a native of Germany. He and his wife
desire to provide a stable home and loving environment for Thomas
in New Jersey. They have enrolled him in the pre-kindergarten
program of Hamilton School in Union.
III. DISCUSSION:
As will be seen, in proceedings under the Convention, the court’s
role is not to make traditional child custody decisions. It is to
determine in what jurisdiction the child should be physically
located, so that the proper jurisdiction can make custody
decisions.
The Convention was prepared under the auspices of the Hague
Conference on Private International Law, which for more than one
hundred years has sought to promote the harmonization of private
international law through activities that include preparing
international treaties and monitoring their operation. The
Convention was adopted by a number of nations on October 6, 1980,
although the United States and the Federal Republic of Germany
did not accede to it until July 1, 1988 and December 1, 1990,
respectively. FN 3
The Convention was prepared against a backdrop of increasing
concern over international child abduction. Its operation is
limited to children under sixteen, and its stated objects are:
(a) [T]o secure the prompt return of children wrongfully removed
to or retained in any Contracting State [i.e., nation]; and (b)
to ensure that rights of custody and of access under the law of
one Contracting State are effectively respected in other
Contracting States…. (art. 1).
As a treaty made “under the Authority of the United States,” it
is binding on “the Judges in every State” as part of “the supreme
Law of the Land” pursuant to the supremacy clause, U.S. Const.,
art. VI, cl. 2. (as noted in Duquette v. Tahan (App.Div. 1991)
252 N. J.Super. 554, 562 [600 A.2d 472]; further proceedings
following remand reported under Tahan v. Duquette (App.Div.1992)
259 N.J.Super 328 [613 A.2d 486]).
A focal point of the Convention is the concept of the habitual
residence of the child. It is immaterial in this case that the
term lacks some precision, because it is beyond legitimate
dispute that Thomas was habitually resident in Germany from his
birth until his removal to this country in October 1993, soon
after his fifth birthday. When a child has been wrongfully
removed from the place of his habitual residence and less than
one year has elapsed from the removal, the court must “order the
return of the child forthwith” (art. 12) (with exceptions that
are not relevant here). FN 4
Article 3 provides in relevant part:
“The removal or the retention of the child is to be considered
wrongful where-
(a) it is in breach of rights of custody attributed to a person
… under the law of the State [nation] 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….”
Here, petitioners seek the return of a five year old child who
was taken from Germany, another contracting state, where he was
habitually resident until his removal less than a year ago. There
is no question that if Thomas’ removal (or his subsequent
retention in the United States) was “in breach of rights of
custody” of petitioners under German law (art. 3), he should be
returned “forthwith” to them in Germany (art. 12), because the
criteria of habitual residence, the age of the child, and the
period of removal of less than one year have been satisfied
beyond argument.
The core issues on which this decision must turn, then, are
whether under German Law petitioners had “rights of custody”
concerning Thomas and, if so, whether those rights were breached
by his removal or retention.
Petitioners claim that their rights of custody arise because
Thomas is their “official foster child” (Petition, par. 10). At
the initial hearing on April 12, 1994, they established that they
were foster parents of Thomas pursuant to a February 1, 1993,
certificate of the “Jugendamt” (Youth Welfare Office) FN 5 of the
City of Neustadt. The certificate stated that Thomas had lived
with petitioners since October 30, 1992, and that he was a foster
child (“pflegekind”) in their household. It did not state that
they had any authority as foster parents to control custody of
Thomas.
The Convention has eased the ability of parties to prove foreign
law, but the nature and extent, if any, of petitioners’ rights of
custody under German law were not made
fully clear at the initial hearing on April 13, 1994. For this
reason the proeeeding was continued until May 2, 1994, so as to
afford all parties the opportunity to obtain and forward to the
court further information on that issue.
ICARA has enacted specific provisions placing on petitioners in
Convention cases the burden of proof on the issue of whether a
removal is wrongful (i.e., whether it was in breach of rights of
custody (42 U.S.C. 11603(e)). It is unquestioned here that the
persons asserting rights of custody must establish both that they
have such rights, and that those rights were breached by the
removal or retention of the children.
Article 5 of the Convention defines “rights of custody” as
including “rights relating to the care of the person of the child
and, in particular, the right to determine the child’s place of
residence.” The rights of custody referred to in the Convention
can be held either by a person, an institution, or any other
body, either jointly or alone (art. 3).
Based upon the submissions from petitioners concerning their
alleged rights of custody under German law, which had been
received immediately prior to the final date of the hearing on
May 2, 1994, it was not at all clear that petitioners had any
rights of custody which would entitle them to demand the return
of the child pursuant to the Convention. At the final hearing on
May 2, 1994, the parties presented additional documents
constituting their further submissions as to German law.
Specifically, petitioners submitted an additional certification
of Marei Scott, which attached a telefax letter to petitioner’s
counsel dated on the date of the final hearing (May 2, 1994) from
Judge Wilhelm, a Judge of the local District Court
(“Amtsgerieht”) in Neustadt, together with a copy of paragraph 38
of the German Social Law Book (the originals are in German and
Scott furnished translations of the originals with her
certification) (Court Exhibit 1).
Petitioners further submitted a series of correspondence between
their attorney and the Central Authority of the Federal Republic
of Germany (which administers the Convention through the office
of the Public Prosecutor General of the Federal Court of Justice)
(“Der Generalbundesanwalt beim Bundesgerichtshof’). (Court
Exhibit 3).
Also at the final hearing, the Grosses handed up letters to them
from the Neustadt Youth Welfare Office (“Jugendamt”) dated April
14, 1994 and April 25, 1994 (German originals with translations
by Joachim Gross), and a letter from the Hamilton School (one of
the Township of Union’s public schools) confirming Thomas’
enrollment in the pre-kindergarten program there five mornings a
week (Court Exhibit 2).
Citing the letter from Judge Wilhelm of the District Court in
Neustadt, petitioners relied on paragraph 38 of the German Social
Law Book, and they also relied on paragraph 33. Petitioners
further relied at the hearing on Section 1666 of the German Civil
Procedure Code (as set forth both in the Code and its
Supplement), and also on Section 1632(4) (Supplement) of that
Code. FN 6
Petitioners conceded at the hearing that they do not have sole
rights of custody and that at most they have joint rights of
custody. Additionally, in their letter-brief dated April 26,
1994, petitioners stated that “the rights relating to the care of
Thomas is in a combination of three persons, the Youth Welfare
Office in Neustadt, and/or the Looses and/or Joy Manuel” (page
3). They also acknowledged that Joy Manuel, the mother of Thomas,
at relevant times had had the passports and birth certificates of
both children, including at the time she took Thomas from them,
and that those documents were not and had not been possessed by
them.
It appears uncontested by the parties that the appropriate German
Court is the Guardianship Court (“Vormundsehaftsgericht”), which
is a part of the District Court (“Amtsgericht”), and is the
German judicial system’s general counterpart in custody matters
to the Family Part of the Superior Court of New Jersey. The
Guardianship Court had the jurisdiction and power to appoint an
official guardian or custodian of the children as long as they
were in Germany. Petitioners further acknowledged, however, that
they have never been declared custodians or guardians of Thomas
by the German Guardianship Court. Indeed, they conceded that they
had applied for that relief, but withdrew the application at the
request of the German Court on January 26, 1994, because that
court indicated to them that it had no further authority over
Thomas inasmuch as he was no longer located in Germany. And in a
letter to the Guardianship Court from the Youth Welfare Office
dated January 14, 1994, that office stated that it “will have to
decide about the custody rights,” thus unmistakably showing that
there had not yet been such a decision, notwithstanding that
petitioners were relying on a certificate which that office had
issued eleven months earlier.
Moreover, there was no claim that in the period since Easter
1994, when Thomas has been in the custody of the Grosses,
respondent Joy Manuel, had asked that he be returned either to
her or to petitioners. A candid revelation of petitioners’ own
views regarding their lack of custody rights appears from their
actions in mid-1993. They desired to take Thomas and Kjhara to
France to visit the Euro-Disney theme park near Paris. Before
doing so they called Joy Doanuel to ask her permission to take
them and they made the trip only after receiving her permission.
As indicated by Judge Wilhelm’s May 2, 1994, letter to
petitioners’ counsel, under German law, “custodial rights” are
reposed principally in the “natural mother.” Judge Wilhelm
further pointed out that the Youth Welfare Office has no
authority other than to assist Manuel in obtaining child support
money from Thomas’ natural father. He summarized petitioners’
status by stating, on the basis of paragraph 38 of the Social Law
Book, that the foster-parents are responsible for the child’s
daily needs.
One of the most significant indicators as to the status of
petitioners’ alleged rights of custody under German law is a
letter from the German Central Authority to petitioners’ counsel
dated May 2, 1994, the same date as the final hearing. In that
letter, Mrs. Becher of the German Central Authority responded to
an inquiry by petitioners, and noted some sympathy with their
views by stating that it is:
[D]ifficult to believe that under German law the foster parents,
Mr. and Mrs. Loos, in this case have no legal responsibility for
Thomas although he lived for almost one year in their home.
Mrs. Becher then acknowledged, however, that the position of the
Central Authority which was being communicated to petitioners
“will not be very helpful in securing the return of Thomas Manuel
to Germany.” She confirmed that in the exercise of its function
under the Convention of providing “information of a general
character as to the law of … [Germany] in connection with the
application of the Convention,” the German Central Authority was
“obliged to state the legal situation under German law as it is
even if this situation may cause harm to the minor Thomas
Manuel….” The letter also pointed out that the German Central
Authority: [C]annot confirm that the Youth Welfare Office shared
custodial rights with Joy Manuel and delegated these rights to
Mr. and Mrs. Loos. Neither the Youth Welfare Office nor Mr. and
Mrs. Loos had any rights limiting the custody rights of Mrs.
Manuel. Moreover, the German Central Authority conceded that
“the German courts may doubt whether they still have jurisdiction
in this case as long as Thomas stays in the United States.”
Additionally, in a telefax letter to petitioners’ counsel dated
April 26, 1994, Mrs. Bruckmann of the Neustadt Youth Welfare
Office stated that although the foster relationship between
Thomas and the Looses “was overseen by” that Office:
Mrs. Joy Manuel has solc eustody of Thomas Manuel and can decide
where he resides. Therefore, Mrs. Joy Manuel was legally
permitted to remove Thomas out of his Fosterhome with the Loos
family. Mr. and Mrs. Loos were responsible for his needs through
the duration of the foster relationship in place of Mrs. Manuel.
The Loos family has no rights to the boy. (Emphasis added.)
It is compelling that the German Central Authority, in an April
15, 1994, letter to petitioners’ counsel, confirmed its
determination that “the prerequisites laid down by the Hague
Convention are not satisfied,” and indicated that when Thomas was
placed in foster care with petitioners, this:
[T]ook place on a voluntary basis with the express consent of the
mother. According to German law, therefore, there were no legal
consequences of any kind for the foster parents as regards
custody or the right to determine the place of residence. As a
result, the behavior of the mother cannot be judged an unlawful
abduction within the meaning of Article 3 of the Hague
Convention. (Emphasis added.)
A further telefax letter from the Central Authority to
petitioners’ counsel, dated April 25, 1994, supplemented the
April 15 letter and confirmed that “the fact that Joy Manuel
abandoned Thomas in the United States has no influence upon the
legal position of the foster parents Mr. and Mrs. Loos, as
described in my letter of April 15, 1994.” It further indicated
that the person who would have the right to demand Thomas’ return
would be his natural mother (assuming she wished to do so), not
the foster parents, the Looses, she “being the mother with full
custody rights….”
At the final hearing, petitioners relied on Article 1632(4) of
the German Civil Code to assert that they had the right to demand
Thomas’ return. The position of German
Central Authority is to the contrary, however, and indicates that
such an application should have been made before the children had
been brought to the United States.
(April 25, 1994 letter from Central Authority). FN 7
In summary, the foregoing facts, and German law as presented to
the court and as construed by the German Central Authority, the
Youth Welfare Office, and the local German District Court, permit
only one conclusion: the petitioners Klaus and Ute Loos did not
have rights of custody which have been breached by the removal of
Thomas to the United States by his natural mother, or by his
retention here by his grandparents after his abandonment by his
mother. To be sure, petitioners, as foster parents in accordance
with the February 1993 certificate issued by the Youth Welfare
Office, were responsible under German law for Thomas’ daily care
as long as he was with them. But they did not have rights of
custody, and the child’s mother could remove Thomas from their
care at any time, as she ultimately did. The Grosses did not
remove Thomas from Germany, but his mother did.
Neither Manuel’s removal of Thomas from the petitioners’ home,
her transportation of Thomas to the United States, her subsequent
departure leaving the child with her grandmother, nor the
continued residence of Thomas with the Grosses since Easter 1994,
has constituted a wrongful removal or retention of Thomas in
breach of any right of custody of petitioners under German law or
the Convention. This result is compelled by German law.
Petitioners have no right to demand Thomas’ return to them in the
Federal Republic of Germany under the Convention on the Civil
Aspects of International Child Abduction in view of their lack of
custody rights. FN 8
The Convention is being acknowledged increasingly as a successful
and laudable development in private international law. The court
recognizes the importance of the Convention and its proper
application. This result is reached simply because, under German
law, petitioners do not have the right to demand Thomas’ return.
If German law had given them that right, the court would have
readily enforced their rights, as it would have been incumbent
upon the court to do under the Convention.
Petitioners also invoke the international provisions of the
Uniform Child Custody Jurisdiction Act (the Act), N.J.S.A. 2A:34-
51 [9 ULA 23 — International Application], and the general
equitable jurisdiction of the court. Having considered these
arguments, the court finds that no different result should occur
under the Act, especially since it is clear that no German court
has rendered a custody decree as to Thomas. The existence of such
an award is highly important, if not indispensable, to a claim
under the Act’s international provisions. Moreover, it would be
contrary to the supremacy clause to supplant the Convention’s
provisions with general rules of equity. In any event, the court
has noted good interaction in the courtroom between Thomas and
the Grosses, and is concerned that further relocation would mean
additional disruption for Thomas. Here, the equities favor
maintaining the present status.
From all that appears in the record, both couples, the Looses and
the Grosses, are motivated by the strong and noble desire to
provide Thomas a stable and loving home. Genuine interest in the
welfare of this child can only be welcomed by the court. Even
though the result of this decision is to leave Thomas at this
time in the care of his grandparents, the Grosses, the court is
cognizant that hereafter others may seek to assert that in the
best interests of Thomas, he should come under their care and be
taken from his grandparents. The net result of this decision is
simply to leave the parties where they are for now, without
prejudice to the merits of any issues regarding the custody of
Thomas which may be asserted in this court or any other
appropriate forum.
Accordingly, the relief sought in the petition is denied in all
respects, and the petition is dismissed with prejudice pursuant
to an order which this court has entered today to implement its
decision as expressed in this opinion.
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1. Pursuant to ICARA, petitioners filed an application dated 28
Mar 1994 with the United States Department of State, which
acts as this country’s Central Authority for purposes of
Article 11 of the Convention. By letter dated 15 Apr 1994
the Department of State communicated with the court to
apprise the court of petitioners’ request for assistance and
to ask for expeditious consideration. It further stated:
“This letter should not be construed by the court as
constituting an opinion of the United States or of the
Department of State regarding the merits of the case.”
2. The court is aware that in the event of a litigated custody
dispute centered on the best interests of the child, a
number of issues as to the quality of Ms. Manuel’s parenting
might be asserted. She has not appeared in this proceeding,
however, and thus has not been heard as to those
allegations. In any event, they largely would be beyond the
scope of this proceeding, so it would be inappropriate to
comment in this opinion on her suitability as a parent.
3. Information concerning the role of the Hague Conference, and
the present state of the law under the convention, is set
for the in the following contributions published in an issue
of Law and Contemporary Problems that is devoted to an
October 1992 conference that marked the centennial year of
the Hague Conference: Paul D. Carrington and Adair Dyer, Jr.
the Hague Conference on Private International Law: Foreword,
57 LAW & CONTEMP. PROBS. 1 (1994); Georges A. L. Droz, A
Comment on the Role of the Hague Conference on Private
International Law, id., at 3; and Linda Silberman, Hague
International Child Abduction Convention: A Progress Report,
id., at 210. The increasing body of literature concerning
the Convention also includes e.g., Linda Silberman, Hague
Convention on International Child Abduction: A Brief
Overview and Case Law Analysis, 28 FAM. L.Q. 9 (1994); Adair
Dyer, The Hague Convention on the Civil Aspects of
International Child Abduction — Towards Global Cooperation,
1 INT’L. J. CHILDREN’S RIGHTS 273 (1993); Peter Pfund, The
Hague Convention on International Child Abduction, The
International Child Abduction Remedies Act, and the Need for
Availability of Counsel for All Petitioners, 24 FAM. L.Q. 35
(1990). The operation of the Convention is periodically
monitored by the Hague Conference in meetings held at The
Hague that are attended by representatives of nations that
are parties to the Convention. The most recent meeting was
held in January 1993 and is summarized in the Report of the
Second Special Commission Meeting to Review the Operation of
the Hague Convention on the Civil Aspects of International
Child Abduction. (The court’s review of the Report, however,
revealed nothing that is especially pertinent to the
principal issues raised by petitioners’ claim.)
4. The exceptions in Article 13 of the Convention to the duty
to return the child “forthwith” (e.g., the return would
“place the child in an intolerable situation”, see, e.g.,
Tahan v. Duquette, supra) have not been invoked here.
5. The English translation of the German terms and documents in
this opinion are unofficial translations which have been
supplied by parties and whose accuracy has not been
materially disputed. The English versions of the German
statutes cited in the opinion or otherwise reviewed by the
court in this proceeding have been supplied by petitioners’
counsel and were not disputed as to the accuracy of their
translation.
6. Petitioners had submitted a number of other German statutes
to the court for its review prior to the final hearing.
Petitioners did not rely, at least to any substantial
extent, on those other statutes in their final articulation
of their position on May 2, 1994, however. In any event,
based on the court’s careful review of those other
provisions, it finds that they do not support a construction
of German law concerning petitioners’ rights that is
inconsistent with the construction set forth in this
opinion.
7. Concededly, it would have been almost impossible as a
practical matter for petitioners to have done so, because
Joy Manuel apparently took her children from petitioners’
care without notifying them that she would not return them.
8. The Court commends petitioners’ counsel for his able and
candid presentation to the Court. . The result reached in
this opinion is simply the consequence of petitioners’ lack-
of certain rights under German law, and is not at all due to
a failing of their very able attorney. The wisdom of the
existing provisions of German law on this issue is not
appropriate for this Court to examine.