USA – NY – DICKBAUER – 1996 (1996) (Return denied) DICKBAUER v DICKBAUER. Mother took child to United States. Father asks that the child be returned to Austria. The Court determined that the habitual residence of the child was the United States and that New York was the proper forum to hear all matters concerning custody and visitation.

Dickbauer v Dickbauer (Fam. Ct. NY 1996)City and County of New York Docket No V-11789/95


In the Matter of MICAH MADDEN : Docket No. V-11789/95
DICKBAUER, an infant :
Petitioner, : DECISION
– against – :
Respondent. :


This case came before the Court on November 20, 1995 by the filing
of a petition by Cassie Madden Dickbauer (hereinafter referred to
as the “mother”) for custody of the child Micah Dickbauer
(hereinafter referred to as the “child”), date of birth February
5, 1992. The Petitioner mother was granted temporary custody of
the child on November 20, 1995. The respondent Othmar Dickbauer
(hereinafter referred to as the “father”), brought on by Order to
Show Cause an application to stay all Family Court proceedings
regarding custody, pending a hearing and determination by thin
Court under the Hague Convention on the Civil Aspects of
International Child Abduction.

Respondent father alleges that the child is being wrongfully
retained by the mother in the United States and requests that this
Court decline jurisdiction and order said child ho be returned to
Austria so that all matters concerning custody be heard there
pursuant to the Hague Convention. The father bases this
application on the allegation that the child is an habitual
resident of Austria.

The issue before this Court is whether the child is a habitual
resident of either the United States or Austria. If the child is
found to be a habitual resident of Austria then by operation of
law, the mother will have been deemed to have illegally retained
the child in the United Spaces. If, however, the Child is found to
be a habitual resident of the United States then the child will
not have been illegally retained here, and this court may exercise
jurisdiction over the parties and a determination may be made by
this Court over the issues of custody and visitation.

After a hearing lasting several days, this Court heard testimony
by the respondent father, who called no witnesses to support his
application before the Court. Petitioner mother testified and on
her behalf called the following witnesses: Mariel Madden
(petitioner mother’s sister), Professor Robert Strange, and Lisa


The father, a citizen of Austria and the mother, a citizen of the
United States, met sometime during the fall of 1990. In or about
July of 1991, the respondent father moved from Austria to New York
to live with the petitioner mother. The following year, on January
5, 1992, the petitioner gave birth to the child Micah. During the
Summer of 1992, the parties mutually agreed to live in Austria,
where they were married shortly thereafter on August 19, 1992.
While in Austria the parties began living with the father’s family
(all citizens of Austria). The marriage became strained thereby
prompting the parties to begin family therapy and couple therapy.
By December 1994, the mother and child left Austria and came to
the United States.

Respondent admitted char the marriage was troubled. Despite this,
he testified that the sole purpose of the mother and child leaving
Austria in December of 1994 was for her and the child to visit her
family in the United States for two months and then return to
Austria. In April of 1995; the petitioner and the child did in
fact return to Austria, however within three weeks (early May of
1995) the mother returned to the United States, this time without
the child. According to the Respondent father, the mother returned
to the United States, with a clear intention that the child remain
with him, and that no plan or agreement was made when the mother
would see the child again. During the time petitioner mother was
in the United States the parties spoke on the telephone,
attempting to reconcile.

Respondent testified that he decided to travel to the United
States with the child at the end of July 1995 because he loved his
wife and wanted to reconcile with her and have the entire family
to return to Austria. He stated that there was never any intention
or agreement to move back to New York with the child but that he
came to New York solely to reconcile with his wife and to
eventually return to Austria with petitioner and their son Micah.
According to the father, the habitual residence of the child had
never changed and the child’s residence was and had always been

Petitioner testified that the marriage relationship was not good
and by 1994 after having attended couple and family therapy, she
wanted co return to the United States. Her hope in 1994, was for
all three to go back to the United States, for her to study and
for the father to support herself and the child.

Petitioner mother stared that when she returned to Austria in
April of 1995, she clearly intended to return to the United States
permanently for a job commitment. After discussing their
relationship and petitioner informing respondent that she wanted
to live in New York City, respondent agreed; Petitioner asserted
that it was respondent’s intention to come join her with the child
in the United States, apply for permanent status, gain employment,
and possibly put their marriage together again. The parties
mutually decided that the child would stay with the respondent
father in Austria while he made the necessary arrangements for
their return to the United States and for that reason alone, she
left Austria in early May of 1995 without the child. Following the
agreement, steps were taken to sell all their possessions in
Austria, i.e. their car, furniture and settle outstanding loans.

Ultimately, the father and the child arrived in the United States
in August of l995. Petitioner mother stated that the delay in the
father’s arrival to the United States was due to his immigration
status. While in the United States, petitioner assisted respondent
in obtaining a permanent visa. However, prior to all immigration
matters having being resolved for the father, several months

Respondent father testified that while in the United States, he
interviewed for a job in Milwaukee, Wisconsin. He stated that the
purpose of interviewing for employment in the United States was
not for the job, but to gain a bargaining position for future
negotiations with Austrian based companies when he returned there.
The Petitioner contends chat the respondent was seriously
searching for a job in order that he could remain in the United
Scares, and support himself and his family, Respondent obtained
another interview in September of 1995, which ultimately led to a
job with an Austrian company located in Meadville, Pennsylvania.

Several witnesses testified on behalf of the mother, one of whom
was John Strange, a former college professor of both petitioner
and respondent. Professor Strange testified that respondent told
him that he had obtained a supervisory position with a company in
Pennsylvania, and that he was very happy with his new position and
responsibilities and was looking for a home in Pennsylvania.

Petitioner’s sister Mariel Madden, testified that she frequently
visited the Respondent father and talked with the Respondent about
his new job. Respondent stated to her that he was excited about
his new job and responsibilities and wanted her to visit him at
his new home. Respondent talked about how the child would like it
in Pennsylvania.

Testimony by Lisa Strong, primarily a friend of the father,
confirmed petitioner’s testimony that the father stated that the
child should be with his mother.

Both parties testified that by October of 1995 it became apparent
that they were not going to reconcile. Petitioner filed her
custody petition in November of 1995 for fear that respondent
would leave the United States with the child. Respondent stated
that on November 16, less, he only talked about returning to
Austria with the child. This prompted Respondent’s application to
the Court to stay all proceedings pursuant to the Hague
Convention, maintaining that he never agreed to stay in the United
States, and that the child’s habitual residence had always been


The United States Court of Appeals, Third Circuit has held that
the “Convention’s approach to the phenomenon of international
child abduction is straightforward. It is designed to restore the
“factual” status quo which is unilaterally altered when a parent
abducts a child and aims to protect the legal custody right of the
non-abducting parent. FN1 Pub. Notice 957, 51 Fed. Reg. 10494,
10505 (1986). Thus, the cornerstone of the Convention is the
mandated return of the child to his or her circumstances prior to
the abduction if one parent’s removal of the child from or
retention in a Contracting state has violated the custody rights
of the other, and is, therefore, “wrongful”. Hague Convention”. FN
2See Feder v. Evans-Feder , 63 F. 3d 217, 221 (3rd Cir. 1993).

As the Convention states, “the objective of the Hague Convention
is “to secure the prompt return of children wrongfully removed to
or retained in any Contracting State” and “to insure that rights
of custody and of access under the law of one Contracting State
are effectively respected in the other Contracting State.” (Hague
Convention, Art. 1(a), (b); 42 U.S.C. Sec. 11601(a)(4).

The parent petitioning for return of the child to the country
pursuant to the Hague Convention bears the. burden of showing by a
preponderance of the evidence that the removal or as in this case
retention of the child was wrongful. Arts. 3 and 4 of the
Convention provides that Respondent in this matter in order to be
entitled to relief must establish: (1) that the retention involves
a child who was habitually a resident of Austria, the contracting
State, and (2) Respondent had lawful rights of custody at the time
of the retention. age, See, Matter of David B. v. Helen O.(Fam.
Ct. N.Y. Cty., 1995) 164 Misc.2d 566. Again, the issue becomes
whether the child Micah was a habitual resident of the United
States or Austria.

Case law and the Convention fail to set forth a specific
definition of “habitual residents but instead leaves the concept
“fluid and fact based, without becoming rigid See, Levesque v
Levesque, 816 F. Supp. 666.

Case law has set forth certain elements to aid the Court in
finding habitual residence.

There must be a degree of settled purpose. The purpose
may be one or there may be several. It may be specific
or general. All thee the law requires is that there is
a settled purpose. Education, business or profession,
employment, health, family are common reasons to
choose a regular abode. Where one has a sufficient
degree of continuity it can properly be described as
settled. Feder v. Evans-Feder, 63 F.3d 237 (3rd Cir.

Courts look to the conduct and overtly stated intentions and
agreements of the parents during the period preceding the act of
abduction (or retention). Id, Feder at 223.

Applying the above principles to the facts in this matter, it is
this Court’s conclusion after hearing all of the testimony that
both parties are recognized to have rights of custody, and it was
the settled purpose of the parties for the child to reside in the
United States and be raised by his mother.

This Court credits the petitioner mother’s testimony chat in April
of 199S there was in fact an agreement that the parties intended
co move to the United States. FN3 First of all, the parties
overt acts of selling their vehicle in Austria, selling their
furniture, securing a sublessor for their apartment, obtaining a
permanent visa for the respondent father, supports a clear intent
to leave Austria. Secondly, the fact that once in the United
States, the respondent secured employment in Meadville,
Pennsylvania to support himself and the child confirms that it was
the parties settled purpose, intention and agreement thee they
would reside in the United States.

In addition, the witnesses for petitioner confirmed that
respondent was in fact attempting to permanently reside in the
United States to be near the child, and even admitted that he had
felt the child should be with the mother.


The evidence supports Petitioner’s argument that the child is a
habitual resident of the United States. Accordingly, this Court
assumes Jurisdiction and finds that New York is the proper forum
to hear all matters concerning custody and visitation. This matter
is adjourned to April 30, 1996 for a hearing on the issue of
custody and visitation.

So Ordered.

Notify parties.


/s/ RAND
Judge of the Family Court

Dated: New York New York: 29 Feb 1996

1. The Hague Convention on the Civil Aspects of International
Child Abduction does not settle custody disputes, stating
that “[a] decision under this convention concerning the
return of the child shall not be taken to be a determination
on the merits of any custody issue”. Hague Convention,
Article l9.

2. Article 12 provides that .~[w]here a child has been
wrongfully removed or retained in terms of Article 3 . . .
the authority concerned shall order the return of the child
forthwith.” The Convention does not require that a child be
returned to his or her habitual residence, although in the
classic abduction case, this occurs. Where a prevailing
party has moved from the child’s habitual residence, the
child is returned co that party, wherever he or she may be.
Pub. Notice 957, 51 Fed. Reg. at 10511.

3. This Court found it highly unlikely, as respondent
testified, that in April of 1995, the mother returned to the
United States leaving the child in Austria without having
agreed as to when she would see the child again.