USA – PA – Alexandra v Rowan

Von Wussow-Rowan v Rowan(E.D. Pennsylvania 1998)
Civil Action No Civ.A.98-3641
14 International Abduction [US 1998]
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Mary Alexandra VON WUSSOW-ROWAN

v

David A. ROWAN

No. CIV.A.98-3641.

United States District Court, E.D. Pennsylvania.

06 Aug 1998

MEMORANDUM AND ORDER

001 The Hague Convention on the Civil Aspects of
International Child Abduction (“Convention”), implemented by
the International Child Abduction Remedies Act (“ICARA”), 42
U.S.C.  11601 et seq., went into effect in this country in
1988. Invoking the Convention and the ICARA Mary Alexandra
Von Wussow-Rowan (“petitioner”) seeks an order from this
Court requiring her estranged husband, David A. Rowan
(“respondent”) to return their three-year-old child, Simon
Rowan, to Switzerland, where petitioner now resides. The
facts are complex, and the legal issues difficult.

I. History

002 Petitioner is a citizen of Switzerland, born of German
parents who now reside in Spain, She is an a attorney by
profession. Respondent, an American citizen residing in
Pennsylvania, is a musician. The parties first met in 1994,
at a drug rehabilitation center in Florida, where both were
undergoing treatment for heroin addiction. They were
married on March 18, 1995, in Florida. Their son, Simon, was
born on June 20, 1995 in Philadelphia. According to
respondent’s counsel (not specifically refuted by
petitioner’s counsel), Simon was addicted to heroin at
birth, as a result of his mother’s addiction, which
allegedly continued until at least 1996. Respondent, not to
be outdone, has an extensive history of alcohol abuse and
cocaine addiction. He has undergone, and is still involved
in, treatment for these problems, and claims to have been
“clean” for at least the past year.

003 Petitioner and respondent resided together in
Philadelphia from December 1994 until August 16, 1997, when
petitioner, with respondent’s consent, took their child on a
trip to Europe, to. visit her parents in Spain, and other
relatives and friends in Switzerland. Shortly after arriving
in Europe, the petitioner informed respondent by letter that
she did not intend to return to the United States, having
instituted a divorce action in a Swiss court.

004 Respondent then filed an application for the return of
the child, in the Tutelary Court in Switzerland, invoking
the Convention. The trial court refused to order the child’s
return to the United States, and that ruling was upheld in
an intermediate court of appeal. Petitioner appealed to the
highest court in Switzerland but, through a subterfuge,
managed to spirit the child out of the country and back to
Philadelphia. Upon learning that the child was no longer in
Switzerland, the Swiss appellate court declined to entertain
the appeal, and dismissed the action.

005 Meanwhile, back in Pennsylvania, respondent had been
busy litigating for custody of the child. Immediately upon
learning that his wife intended to remain in Europe,
respondent filed an emergency application for temporary
custody of the child, in the Court of Common Pleas of
Philadelphia County. On October 8, 1997, that court, per
the Honorable Edward E. Russell, granted temporary custody
to respondent, ex parte, and scheduled a hearing for
permanent custody for October 17, 1997. That hearing was
postponed, because respondent had not been able to make
service of process upon petitioner. Service was achieved on
or about November 7, 1997, and the hearing was scheduled for
November 13, 1997. On November 13th, an attorney
representing petitioner appeared and obtained a postponement
until November 20, 1997, so that petitioner could appear.

006 Petitioner did not appear on November 20th either. On
that date, the Honorable Nicholas Kozay entered an order
awarding permanent custody of Simon to the respondent, and
also imposing a $1,500 fine on petitioner for her
non-appearance.

007 On or about December 4, 1997, petitioner appealed from
Judge Kozay’s order. Unfortunately, the appeal has not yet
been docketed in the Superior Court of Pennsylvania, because
Judge Kozay completely retired from the bench shortly after
entering the custody order, and Superior Court rules require
an opinion from the lower court before an appeal will be
docketed. Petitioner’s counsel have made repeated efforts to
resolve this procedural impasse–including an application to
the Supreme Court of Pennsylvania. On March 30, 1998, the
Supreme Court of Pennsylvania granted petitioner’s
application for a stay of Judge Kozay’s custody order. On
May 28, 1998, respondent returned to Philadelphia with
Simon. Respondent then applied to the Supreme Court of
Pennsylvania for an injunction to preclude petitioner from
removing the child from Pennsylvania. On June 16, 1998, by
an order without opinion, the Pennsylvania Supreme Court (1)
dismissed respondent’s application for an injunction,
without prejudice; and (2) dissolved the stay of Judge
Kozay’s custody order.

008 Additional events in the Swiss courts should also be
mentioned. Petitioner’s application for a divorce included
an application for custody of Simon. The trial court entered
an order of dismissal for lack of jurisdiction. Petitioner
appealed that decision to the Court of Justice of Geneva.
On or about July 9, 1998, that court ruled that the Swiss
courts do have jurisdiction to resolve the custody dispute,
and entered an order granting temporary custody of Simon to
petitioner. Under Swiss law, however, that order is not yet
enforceable, since the appeal period will not expire until
September 14, 1999. If respondent appeals, the order would
remain unenforceable during the pendency of the appeal. If
respondent does not appeal, the Swiss court proposes to hold
a hearing on September 14, 1998, but counsel have not yet
obtained clarification as to the scope of any such hearing.

II. Legal Issues

009 The Convention mandates that, when a child is
wrongfully removed from his country of “habitual residence”
the courts of the receiving state “shall” order the return
of the child to his place of habitual residence unless the
person opposing return proves that “(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.” And, under the ICARA the
burden of proof is on the objector to prove that exception
by clear and convincing evidence. Respondent argues that
the Tutelary Courts decision denying his application to have
Simon returned under the Convention should not be granted
full faith and credit, because, although the Tutelary Court
correctly found that Simon’s habitual residence was in the
United States, and that his removal to Switzerland was
wrongful, it committed manifest error in refusing to return
Simon to the United States, as mandated by the Convention.
Respondent points out that the court made no specific
finding of fact with regard to any supposed “grave danger”;
that there was no evidence to support any finding of grave
danger to Simon if he were to be returned to the United
States; and that a mere conclusory statement does not
satisfy the strict requirements of the Article 13(b)
exception. Respondent finds much support for this argument
in the reported decisions of the courts of the United States
on this subject. As noted in the case of Friedrich v.
Friedrich (6th Cir. 19961) 78 F.3d 1060, the “grave danger”
exception in Article 13(b) is intended to apply only where
the country of habitual residence is a war zone, or
suffering famine or pestilence or other chaotic conditions.
Under the Convention, a court is not permitted to frustrate
the scheme of the Convention by relying merely on factors
which would be appropriate if custody issues were being
addressed.

010 It is therefore at least arguable that the Tutelary
Court’s decision would not be entitled to full faith and
credit because that court plainly did not have jurisdiction
to resolve custody issues, yet that is precisely what it
actually did, under the guise of Article 13(b).

011 I need not resolve that issue, however, in view of the
recent action of the Swiss Federal Court, which concluded
that, since Simon was no longer in Switzerland and had been
returned to the United States, respondent’s application to
the Swiss courts to order his return had become moot (“the
appeal is without object and the case is dismissed”). It
should be noted that Article 12 of the Convention provides:
“Where the judicial or administrative authority in the
requested State has reason to believe that the child has
been taken to another state, it may stay the proceedings or
dismiss the application for the return of the child.”
(emphasis supplied)

012 To extend full faith and credit to the judgments of
other courts means simply that such judgments must be given
the same effect they would have in the jurisdiction where
rendered. The federal court (the highest appellate court in
this instance) did not affirm the decisions of the lower
courts; it dismissed the entire action — presumably in
accordance with Article 12 of the Convention. Moreover, even
if it were otherwise, and the judgment of the lower courts
had been affirmed, that judgment merely establishes that the
respondent was not entitled, under the Convention, to have
the Swiss courts order Simon’s return to the United States.
This Court is not being asked to order Simon’s return to the
United States.

013 Under the terms of the Convention, it is wrong to
remove a child from his place of habitual residence. It is
by no means clear, however, that it is wrong for a parent to
use selfhelp in returning the child to his place of usual
residence. Thus, an essential predicate for the present
application seems to be lacking. Moreover, the “clean
hands” doctrine militates against granting the present
application.

III. The Remedy

014 This Court does not have jurisdiction to resolve
custody disputes. But the Convention and the implementing
statute do, in my view, confer upon this Court an obligation
to see to it that custody disputes are resolved by the
appropriate court, on their merits, and on a level playing
field. Neither Party has thus far shown an inclination to
face the custody issue realistically or fairly. A father
should not be denied custody of his three year old son
merely because, two years ago, he had a drinking problem and
was involved in an alcohol-related automobile accident (not
involving the child). A mother should not be deprived of
custody of her three year old son because she refused to
travel to Philadelphia from Switzerland. Child-custody
should not be resolved by default judgments.

015 I therefore propose to stay this action for a period
of 90 days. If, within that period (which may be extended by
this Court for cause shown), petitioner shall have caused
the permanent custody order entered by Judge Kozay to be
vacated, and shall have arranged to have all custody issues
concerning Simon resolved at a full and fair hearing in the
Court of Common Pleas of Philadelphia County, with the
benefit of appropriate evaluations of both parents with
regard to their fitness for obtaining custody, and a full
and fair consideration of the best interests of the child;
and if respondent shall grant reasonable visitation rights
to petitioner in the interim, this Court will, absent
additional evidentiary developments pertinent to this case,
then dismiss the present petition.

An Order follows.

ORDER

AND NOW, this 6th day of August, 1998, IT IS ORDERED:

That a further proceedings in this case are STAYED, for a
period of 90 days, on the terms and conditions set forth in
the accompanying memorandum.

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COMMENTS BY William M. HILTON
Attorney At Law
Box 269, Santa Clara, CA 95052-0269
TEL: 408-246-8511 FAX: 408-246-0114
E-Mail: [email protected]

I have begun a previous COMMENT with the following quote:

“If we were screenwriters drafting a script
based on the history of Polanski’s conviction
and flight from punishment, incorporating the
civil and criminal aspects of his actions, we
would surely create a scenario where all the
characters get their “just deserts” without
regard to the protective safeguards of the
Constitution. However, as jurists, we are bound
by constitutional principles and must apply them
evenhandedly, regardless of our personal
opinions of any of the litigants.”
Doe v. Superior Court (Cal.App. 2 Dist 1 Div
1990)
222 Cal.App.3d 1406, 1411

I next turn to the preamble of The Convention:

“Firmly convinced that the interests of children
are of paramount importance in matters relating
to their custody,

Desiring 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, as well as to secure
protection for rights of access,

Have resolved to conclude a Convention to this
effect, and have agreed upon the following
provisions–”

Then we have the following words from Paragraph 34 of the
Explanatory Report by E. Perez-Vera, Hague Conference on
Private International Law, Actes et documents de la
Quatorzieme session, vol. Ill, 1980, p. 426 (Perez-Vera
Report):

“In fact, the Convention as a whole rests upon
the unanimous rejection of this phenomenon of
illegal child removals and upon the conviction
that the best way to combat them at an
international level is to refuse to grant them
legal recognition. The practical application of
this principle requires that the signatory
States be convinced that they belong, despite
their differences, to the same legal community
within which the authorities of each State
acknowledge that the authorities of one of them
– those of the child’s habitual residence – are
in principle best placed to decide upon
questions of custody and access.”

The issue of removal of a child from a Contracting State
while the courts of that state were seized with the action
was discussed in Re: “O” (Minors) [UK 1997]; High Court of
Justice, Family Division, 30 May 1997; 3 International
Abduction [UK 1997].

In this case the children were wrongfully removed from
California to Sweden. The father brought an action in
Sweden for the return of the children and, as in this case,
the Swedish courts found that there was an Art. 13(b)
exception. The father then appealed this to a higher
Swedish Court. After the matter had been heard but before
the decision was reached, the father removed the children
from Sweden and was on his way back to the United States,
passing through London, where he was intercepted by the
British Authorities.

The High Court of Justice, in order that the children were
to be returned to Sweden to await the final outcome of the
Swedish Court, held the following:

“029 But, in my judgment, all these submissions
overlook two fundamental points. The first is
that one of the fundamental purposes of the
Convention and its mechanisms in to prevent, by
deterring, international child abduction. The
preamble to the Convention refers to ”The
States signatory to the present Convention …
desiring 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 … [I underline and
emphasize the word “and”]. Thus, ensuring prompt
return of children to the State of their
habitual residence is one of the objectives of
the Convention, in conjunction with the
important overall objective of desiring to
protect children from the harmful effects of
their wrongful removal or retention. As the
Explanatory Report by Elisa Perez-Vera issued by
the Hague Conference itself in 1982 and
frequently referred to by the courts, not only
of England but of many other Contracting States,
makes clear at paragraphs 16 to 19 “. . .
effective respect for rights of custody and of
access belongs on the preventive level, insofar
as it must lead to the disappearance of one of
the most frequent causes of child abductions”.

030 Thus, one objective of the Convention is to
provide an effective mechanism for the prompt
return of children through administrative and
judicial procedures so that people in the
position of the father in this case do not
resort to self-help and secondary abduction. In
my judgment, it would run quite counter to this
objective if a parent, who had failed to procure
the return of his child from one Contracting
State, could successfully obtain a re-run of his
application by himself abducting the child to or
via another Contracting State.

031 The second fundamental point is that the
machinery of the Convention, read as a whole,
essentially contemplates a summary procedure to
be operated once only. In particular Article 16
provides that the judicial or administrative
authorities of the State to which the child has
been removed or in which it has been retained,
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”. Thus, if a child is abducted to
England and, within proceedings under the
Convention, the court decides that, because of
the discretions under Article 13, it should not
be summarily returned, the force of the
Convention insofar an it relates to summary
return in then spent. There cannot be second or
subsequent applications under the Convention.

032 In my judgment, that principle and approach
must apply no less forcefully just because the
summary procedure under the Convention has taken
place in another Contracting State. I can no
more sit “on appeal” from the decision of the
County Court in Sweden in thin case (whose
decision and order at this moment remains in
existence) than I could if an earlier decision
not to return the children had been made in
proceedings here.

033 Even when a court is exercising a statutory
jurisdiction and duty, as I am under the Child
Abduction and Custody Act 1985, there is a
discretion to decline to exercise the
jurisdiction; for example, when a court stays
proceedings on the principal of forum non
conveniens. I stress that I do not regard the
principle of forum non conveniens as having any
direct application whatsoever to the present
case or, indeed, to proceedings under the
Convention generally; nor do I regard myself as
exercising a power to “stay” in the conventional
sense the father’s application under the Child
Abduction and Custody Act and the Convention.
Nevertheless, the existence of that inherent
power in other types of legal proceedings,
including proceedings for the exercise of a
statutory jurisdiction and duty, fortifies me in
the view that I can, and should, decline to
entertain on its merits the application under
the Convention for the return of these children
to America.

034 I stress that I am declining even to
entertain the application under the Convention
on its merits. I am not hearing it on its
merits. I do not have, and do not wish to
express or imply, any view as to whether or not
within the Swedish proceedings and the current
Swedish appeal the children should be returned
to America. In my judgment that is a matter
within the exclusive province of the Swedish
appeal court, which is, even now, considering
its decision

035 For those reasons, I intend to exercise an
inherent jurisdiction and discretion not to
entertain the father’s application under the
Hague Convention.

A reading of the above does not indicate, as this court
holds, that “selfhelp” is one of permitted remedies under
The Convention and in fact such “selfhelp” must be
discouraged.