NO. 91-14556-S
IN THE MATTER OF | IN THE DISTRICT COURT OF
THE MARRIAGE OF FN1 |
|
PATRICIA BURRIS ZIMMERMANN |
AND |
JEREMY ZIMMERMANN | DALLAS COUNTY, TEXAS
|
AND IN THE INTEREST OF |
|
AMY CHARIS ZIMMERMANN AND |
JACK FLETCHER ZIMMERMANN, |
CHILDREN. | 255TH JUDICIAL DISTRICT
ORDER DIRECTING RETURN OF MINORS
TO COUNTRY OF HABITUAL RESIDENCE
On the l4th day of October, 1991, the Court heard
Petitioner’s Appeal of the Master’s Recommendation of September
30, 1991 on JEREMY ZIMMERMANN’S Petition for Return of the
Children pursuant to the Hague Convention. FN2
Petitioner, PATRICIA BURRIS ZIMMERMANN, appeared in person
and by attorney.
Respondent, JEREMY ZIMMERMANN, appeared by attorney.
All matters of law and of fact were submitted to the Court,
and the Court heard the evidence and considered the pleadings and
argument of counsel. The record of testimony was duly reported.
The Court finds that the children’s habitual residence is
England. FN3
The Court further finds that a suit concerning the children
is currently pending in England. The Court further finds that
England {Page 2} has a due process legal system and that the
English court is capable of conducting appropriate hearings
concerning the children. FN4
The Court further finds that there is evidence to support the
allegation of grave risk to the children if they are returned to
their father pending a hearing on that matter in England.
The Court makes no finding as to whether or not the return of
the children to JEREMY ZIMMERMANN would by clear and convincing
evidence FN5 be a grave risk FN6 to the children; this issue to
be decided by the Court in England.
The Court finds that no grave risk FN7 is posed by ordering
that the children be returned to the United Kingdom in the company
of their mother, PATRICIA BURRIS ZIMMERMANN. FN8
IT IS ORDERED that, pursuant to the provisions of The
Convention on the Civil Aspects of International Child Abduction,
done at the Hague on 25 Oct 1980 (Convention) and/or the
International Child Abduction Remedies Act, 42 U.S.C. 11601 et
seq., PATRICIA BURRIS ZIMMERMANN return the minor children, AMY
CHARIS ZIMMERMANN who was born on April 24, 1984 and JACK FLETCHER
ZIMMERMANN who was born on March 8, 1986, to the sovereign nation
of the United Kingdom on or before October 21, 1991. PATRICIA
BURRIS ZIMMERMANN is ORDERED to board with AMY AND JACK ZIMMERMANN
on flight #488 on Continental Airlines departing the Dallas/Fort
Worth International Airport at 5:10 PM on October 21,1991 arriving
at Houston Intercontinental at 6:10 PM. PATRICIA BURRIS ZIMMERMANN
is ORDERED to board with AMY AND JACK ZIMMERMANN on flight #04 on
Continental Airlines departing Houston Intercontinental at 6:45 PM
on October 21, 1991 and arriving at London Gatwick on October 22
at {Page 3} 9:45 AM. PATRICIA BURRIS ZIMMERMANN is ORDERED to
immediately, during regular business hours, report to the
appropriate Central Authority and the High Court of Justice,
Family Division, Principal Registry, in which cause number WG963
of 1991, entitled “Between Jeremy Arnold Zimmermann, Plaintiff,
and Pattie Jeanne Zimmermann, Defendant,” is now pending. PATRICIA
BURRIS ZIMMERMANN may designate another person to travel with the
children in her place.
IT IS FURTHER ORDERED that JEREMY ZIMMERMANN is to pay for
the return flights to London, England for AMY CHARIS ZIMMERMANN,
JACK FLETCHER ZIMMERMANN and PATRICIA BURRIS ZIMMERMANN if she
wishes to return with the children.
IT IS FURTHER ORDERED that, pending action by the High Court
of Justice, Family Division, Principal Registry, in cause number
WG963 of 1991, entitled “Between Jeremy Arnold Zimmermann,
Plaintiff, and Pattie Jeanne Zimmermann, Defendant,” PATRICIA
BURRIS ZIMMERMANN has the right to the physical possession of the
children during the period of time required to return the
above-named minors in compliance with this Order to the United
Kingdom, the country of the minors’ habitual residence, and
thereafter until the High Court of Justice, Family Division,
Principal Registry, in cause number WG963 of 1991 makes other
orders.
The injunction granted below shall be effective immediately
and shall be binding on PATRICIA BURRIS ZIMMERMANN; on her agents,
servants, employees, and attorneys; and on those persons in active
concert or participation with her who receive actual notice of
this ORDER DIRECTING RETURN OF MINORS TO COUNTRY OF {Page 4} ORDER
by personal service or otherwise. The requirement of a bond is
hereby waived.
IT IS ORDERED that PATRICIA BURRIS ZIMMERMANN, her agents,
servants, employees, and those persons in active concert with them
who shall receive actual notice of this order by personal service
or otherwise are enjoined from:
Removing the children, AMY CHARIS ZIMMERMANN and/or JACK
FLETCHER ZIMMERMANN, from the jurisdiction of this Court
for any purpose other than returning the children to the
United Kingdom pursuant to this ORDER;
Placing one or more telephone calls or communicating
with JEREMY ZIMMERMANN for any purpose other than to
discuss visitation;
Subjecting the children to any psychological examination
or evaluation without express order of the Court.
IT IS FURTHER ORDERED that suit affecting the parent-child
relationship pending in this Court, same being Cause No.
91-14556-S, shall dissolve and be dismissed immediately upon the
issuance of orders by the High Court of Justice, Family Division,
Principal Registry, in cause number WG963 of 1991, entitled
“Between Jeremy Arnold Zimmermann, Plaintiff, and Pattie Jeanne
Zimmermann, Defendant,”
JEREMY ZIMMERMANN is granted a judgment against PATRICIA
BURRIS ZIMMERMANN for $19,716.16 for attorney’s fees for the
benefit of WEBB, KINSER & LUCE, P.C.
IT IS THEREFORE ORDERED that JEREMY ZIMMERMANN shall have and
recover judgment against PATRICIA BURRIS ZIMMERMANN for $19,716.16
for the benefit of his attorneys, WEBB, KINSER & LUCE, P.C., such
{Page 5} judgment bearing interest at ten percent (10%) per annum,
compounded annually from date the judgment is signed until paid,
for which let execution issue if it is not paid.
This Order is not a determination of the merits of any
custody issues within the meaning of Article 19 of the Convention.
This Court does not specifically deny the return of the children
to JEREMY ZIMMERMANN.
The order of this court is made under the authority of 42
U.S.C. 11603(a), conferring upon this court original and
concurrent jurisdiction with federal district courts of the United
States.
THEREFORE, TO ANY PEACE OFFICER IN THE STATE OF TEXAS OR TO
ANY FEDERAL OFFICER:
You are hereby ORDERED AND COMMANDED to enforce the instant
Order ordering PATRICIA BURRIS ZIMMERMANN to remove the
above-named minors from the United States of America and return
them to the United Kingdom, and to allow PATRICIA BURRIS
ZIMMERMANN to accompany them to the United Kingdom giving said
PATRICIA BURRIS ZIMMERMANN the right to have said children in her
lawful possession for the purposes described herein.
This Order RENDERED at Dallas, Dallas County, Texas, on
October 14, 1991 and ministerially signed on the date below. This
Order shall continue in full force and effect until modified or
canceled by a court of competent jurisdiction in the United or
until the instant cause of action is dissolved in {Page 6}
accordance with the terms of this order.
Dated: 18 Oct 1991
/s/ Don Koons
__________________________________
Presiding Judge
——————–
1. WMH Comment: This really should not be a marriage dissolution
proceeding. This should be an independednt action for return
under the Convention.
2. WMH Note: The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on 25 Oct
1980 (Convention)
3. WMH Note. Article 3 of the Convention
4. WMH Comment: This is gratuitous. The Conventions mandates
the return of a child if the child was taken from its habitual
residence in derrogation of the custody rights of the left
behind party and none of the exceptions apply. The type of
legal system in the country of habitual residence is
irrelevant. But see Article 20 of the Convention.
5. WMH Note: 42 USC 11603(e)(2)((A)
6. WMH Note: Convention, Art 13(b)
7. WMH Note: Convention, Art 13(b)
8. WMH Comment. This is the “Safe Harbor” technique. The theory
is that the allegations are made that the petitioner will harm
the children. The court then appoints a third party, or, as
in this case, the other parent, to take the children back to
the country of Habitual Residence. As there is no longer any
danger to the children under this order, then Art 13(b) does
not apply. If, on the other hand, it were found that the
return of the children to the Habitual Residence would cause
grave risk to the children, then Art 13(b) may apply. An
example of this would be that the children suffered from, say,
severe allergies and there was no place in the habitual
residence that the children could live free of these
allergies. See Dozier v Dozier (Cal.App. 2 Dist. 1959) 167
Cal.App.2d 714, 715-721 [334 P.2d 957] for a discussion of
this issue in a different, but similar context.