Friedrich v. Friedrich

• Decision Date: 22 January 1993
• Docket Number: No. 92-3117,92-3117
• Citation: 983 F.2d 1396
• Parties: , 61 USLW 2456 Emanuel FRIEDRICH, Petitioner-Appellant, v. Jeana Michele FRIEDRICH; David Harper; and Shirley Harper, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1396

983 F.2d 1396

125 A.L.R.Fed. 703, 61 USLW 2456

Emanuel FRIEDRICH, Petitioner-Appellant, v. Jeana Michele FRIEDRICH; David Harper; and Shirley Harper Respondents-Appellees.

No. 92-3117.

United States Court of Appeals Sixth Circuit.

Argued Nov. 13, 1992.

Decided Jan. 22, 1993.

Gary J. Gottfried (argued and briefed), Judy L. Fisher, Gottfried & Palmer, Columbus, OH, for petitioner-appellant.

Anthony Joseph Iaciofano (argued and briefed), Benjamin, Yocum & Heather, Cincinnati, OH, for respondents-appellees.

Before: BOGGS and SILER, Circuit Judges; and LAMBROS, Chief District Judge. ^*

BOGGS, Circuit Judge.

This is a case of first impression, requiring us to determine when the removal of a child from one country to another by one parent, without the consent of the other, is "wrongful" as defined by the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") as implemented by the United States Congress in the International Child Abduction Remedies Act ("the Act"), 42 U.S.C. §§ 11601-11610. Emanuel Friedrich appeals from the denial of his petition for the return of his son, Thomas, to Germany. Thomas was removed from Germany to the United States by his mother, Jeana Friedrich, a few days after the Friedrichs informally separated. The district court found that Mrs. Friedrich did not wrongfully remove Thomas from Germany within the meaning of the Convention because at the time of removal Thomas was a "habitual resident" of the United States and Mr. Friedrich was not exercising his parental custody rights. For the reasons that follow, we reverse the district court's ruling and remand the case for a determination of whether, under German law, Mr. Friedrich had custody rights at the time of the removal that he was exercising or would have exercised but for the removal, and for consideration of any affirmative defenses that Mrs. Friedrich might raise.

I

In December 1989, Emanuel Friedrich married Jeana Friedrich in the Federal Republic of Germany. Mrs. Friedrich, a citizen of the United States, was a member of the United States Army stationed in Bad Aibling, Germany. Mr. Friedrich, a citizen of Germany, was employed on the military base as a bartender and club manager.

On December 29, 1989, the Friedrichs' only child, Thomas David Friedrich, was born in Bad Aibling. During 1990 and early 1991, Thomas lived with both of his parents in Bad Aibling off the military base. The Friedrichs' marriage was a rocky one from the start. Their first informal separation occurred in June 1990, but only lasted a weekend. The Friedrichs informally separated for a second time in March 1991. For the majority of this separation, Mr. Friedrich and his parents retained physical custody of Thomas. Mrs. Friedrich lived on the military base. In early May 1991, while still separated, the Friedrichs agreed that Thomas would accompany his mother on a ten-day visit to her parents' home in Ironton, Ohio. Upon Thomas's return to Germany, the Friedrichs reunited, and Thomas lived with both of them until late July 1991.

On the evening of July 27, 1991, the Friedrichs had a heated argument at their apartment. During the argument, Mr. Friedrich ordered Mrs. Friedrich to leave the apartment with Thomas and put most of their belongings in the hallway, including some of Thomas's toys. Mrs. Friedrich, however, did not leave the apartment until the next morning when she obtained assistance from friends in the United States Army. Together, they took Thomas and removed her possessions to on-base visiting quarters, where she lived with Thomas for the next four nights, until August 1, 1991. Mr. Friedrich did not interfere with the removal of Mrs. Friedrich's possessions or with the removal of his child. He explained that he was intimidated by the soldiers and wanted to avoid a scene in front of Thomas.

The on-base visiting quarters are not designed for permanent residence and the daily rate is expensive. Therefore, Mrs. Friedrich immediately sought alternative, less expensive accommodations. Under military regulations, Mrs. Friedrich could not live in the barracks on the base with her son. Mrs. Friedrich testified that she quickly concluded that she had nowhere to live with her son in Germany and that her only recourse was to return to the United States. In the late evening of August 1, 1991, without Mr. Friedrich's permission, consent or knowledge, Mrs. Friedrich left Bad Aibling en route to the United States with Thomas.

Between the time she left the family apartment on July 28, and the time she left Bad Aibling on August 1, 1991, Mrs. Friedrich met with Mr. Friedrich at least twice to discuss their separation and Thomas's welfare. On July 29, 1991, Mr. Friedrich visited with Thomas for four hours. On August 1, 1991, the Friedrichs planned specific times for Mr. Friedrich to visit with Thomas during the following week.

Mrs. Friedrich arrived in Ironton, Ohio on August 2, and initiated a divorce action in Lawrence County, Ohio on August 9, 1991. Although the court issued a Letter Rogatory to the appropriate German authorities, Mr. Friedrich claims that he never received the letter or any notice of the judicial proceedings in Lawrence County, Ohio. On August 11, 1991, Mrs. Friedrich returned to Germany without her son and immediately sought an emergency discharge from the United States Army. On August 28, 1991, the Lawrence County, Ohio, Court of Common Pleas issued a temporary order in favor of Mrs. Friedrich and ordered that Thomas not be removed from Ohio until further order of the court. On September 15, 1991, Mrs. Friedrich was discharged from the United States Army, and she returned to her parents' home in Ironton, Ohio.

Mr. Friedrich discovered that Thomas had been removed to the United States on August 3, 1991, and filed a claim in Germany seeking to obtain parental custody soon afterward. On August 22, 1991, a Municipal Court-Family Court in Rosenheim, Germany granted Mr. Friedrich parental custody of Thomas. Mrs. Friedrich did not receive notice of that judicial proceeding.

Mr. Friedrich filed this action on September 23, 1991, alleging that Mrs. Friedrich had wrongfully removed Thomas from Germany in violation of the Hague Convention on Civil Aspects of International Child Abduction. On January 10, 1992, the district court denied Mr. Friedrich's claim.

II

The Convention on Civil Aspects of International Child Abduction was adopted by the signatory nations in order "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." Hague Convention, Preamble. The United States ratified the Convention on April 29, 1988. Germany is also a signatory nation to the Convention. Pursuant to Article 19 of the Convention and section 2(b)(4) of the Act, a United States district court has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim. It is important to understand that "wrongful removal" is a legal term strictly defined in the Convention. It does not require an ad hoc determination or a balancing of the equities. Such action by a court would be contrary to a primary purpose of the Convention: to preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court.

Under the Convention, the removal of a child from one country to another is wrongful when:

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 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 particular by operation of law or by reason of a judicial or administrative decision, or by reason of agreement having legal effect under the law of that state.

Hague Convention, Article 3.

Under the Act, Mr. Friedrich has the burden of showing by a preponderance of the evidence that the removal was wrongful. 42 U.S.C. § 11603(e)(1). If Mr. Friedrich meets his burden, the burden shifts to Mrs. Friedrich to show 1) by clear and convincing evidence that there is a grave risk that the return of the child would expose the child to physical or psychological harm; Hague Convention, Article 13b, 42 U.S.C. § 11603(e)(2)(A); 2) by clear and convincing evidence that the return of the child "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms"; Hague Convention, Article 20, 42 U.S.C. § 11603(e)(2)(A); 3) by a preponderance of the evidence that the proceeding was commenced more than one year after the abduction and the child has become settled in its new environment; Hague Convention, Article 12, 42 U.S.C. 11603(e)(2)(B); or 4) by a preponderance of the evidence that Mr. Friedrich was not actually exercising the custody right at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; Hague Convention, Article 13a, 42 U.S.C. § 11603(e)(2)(B).

Therefore, as a threshold matter, Mr. Friedrich must prove by a preponderance of the evidence that 1) Mrs. Friedrich removed Thomas from his "habitual residence," and 2) Mr. Friedrich was exercising his parental custody rights over Thomas at the time of removal, or that he would have exercised his rights but for the removal, under the law of the state of Thomas's habitual residence. If Mr. Friedrich meets this burden, Mrs. Friedrich may fall back on one of the four affirmative defenses. The district court...