Kufner v. Kufner, CA 07-046 S.
| Decision Date | 28 March 2007 |
| Docket Number | No. CA 07-046 S.,CA 07-046 S. |
| Citation | 480 F.Supp.2d 491 |
| Parties | Dominik KUFNER, Petitioner, v. Tina KUFNER, Respondent. |
| Court | U.S. District Court — District of Rhode Island |
Bradford N. Martin, Bradford Neal Martin & Associates; PA, Greenville, SC, Charles A. Tamuleviz, Tamuleviz, Hultquist & Bianchi, LLP, Providence, RI, Gerald L. Nissenbaum, Nissenbaum Law Offices, Boston, MA, for Plaintiff.
Barry S. Pollack, Lindsay D. Barna, Sullivan & Worcester, LLP, Boston, MA, Richard A. Boren, Visconti & Boren Limited, Neville J. Bedford, Providence, RI, for Defendant.
Sharon O'Keefe, Barrington, RI, for Guardian ad Litem.
Petitioner Dominik Kufner seeks the return of his two children, J.K. and M.K., to Germany pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 19 I.L.M. 1501 (1980) which was codified by Congress in the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. (ICARA). On or about January 22, 2007, the children were taken by their mother, respondent Tina Kufner, from Germany to Rhode Island. Ms. Kufner contends that the children were not wrongfully removed, and that, in the event that they were, she and the children are entitled to remain in Rhode Island because the children, if returned to Germany, would be subject to a grave risk of harm. As set forth in detail below, this Court has given expedited consideration to this matter consistent with the command of the Hague Convention. See Hague Convention art. 11 ().1 After considering the evidence and trial testimony developed over seven days of hearing and submitted thorough deposition designations supplementing the record, the Court makes the following findings of fact, conclusions of law and orders.
Tina Kufner was born in Cumberland, Rhode. Island and is a United States citizen. In 1989, she met Dominik Kufner, a German citizen, in Hong Kong and in 1996 they were married and began to live in Munich, Germany. Munich is also the site of Mr. Kufner's successful family textile business, which he partly manages. On September 3, 1998, two years after they moved to Munich, J.K. was born, and then, on December 9, 1999, their second child, M.K., was born. Both children are dual citizens of Germany and the United States. Although the family lived exclusively in Germany, they made frequent trips to Rhode Island, especially around the holidays, to visit Ms. Kufner's family.
In June or July of 2005, the parents separated, moved out of their house, and by September had acquired two smaller homes. During this separation period, the parents informally agreed to share time with the children. Mr. Kufner traveled frequently, and when he was gone the children resided with Ms. Kufner; when Mr. Kufner returned, the children spent time with him.
In early 2006, however, a number of events caused an escalation in tension between the parents and a breakdown in their relationship. Ms. Kufner testified that in January 2006 she became aware of a number of photographs Mr. Kufner had taken of the children that caused her significant concern.
The photographs (Pet'r Ex. 10) were taken in September 2005 in Mr. Kufner's house. As described below, there is some dispute over how and when Ms. Kufner came into possession of the photographs and which photographs she saw in January. Mr. Kufner testified that the parents had agreed to exchange any photographs taken of the children in the other's absence; consequently, Mr. Kufner either sent Ms. Kufner a disk which contained the images, or brought the disk over to her house and downloaded them onto her computer. The controversial pictures were contained in a folder titled "naked boys in Moeribach." Mr. Kufner testified that this exchange occurred in October 2005, however Ms. Kufner asserted that she first saw the photographs in early 2006, and found additional photographs in August 2006.
A total of 49 pictures were taken during this "event," although only 43 were submitted to the court. (The last six were apparently pictures of the children eating on the floor "like dogs," but Ms. Kufner did not rely on these photographs for her Article 13(b) defense). The majority of photographs — thirty-nine of them — are relatively innocuous pictures of the children playing and laughing, naked, in the living room of Mr. Kufner's house. One picture of those thirty-nine also shows that the children's au pair, Ms. Cain, was present.
Four of the photographs, however, are significantly more graphic in nature. In one, one of the boys is bent over, looking through his legs at the camera. In this pose, his buttocks and genitals are clearly displayed. In another, one of the boys is bent over a couch with his genitals and buttocks the only visible portions of his body; it appears that he is unaware that the photograph is being taken, although his face is not visible. In a third, one of the boys is pictured lying down, with his buttocks clearly displayed. Finally, a fourth photograph depicts one of the boys bent over the couch again, with his buttocks clearly exposed.
In early February, Mr. Kufner spent ten days alone with the children during "ski week."2 This vacation caused Ms. Kufner a great deal of anxiety because she was unable to see the children.3
Then, likely in late February 2006, the children began displaying certain observable physical symptoms, including bed-wetting,4 nervous eye twitching, sleeplessness and nighttime crying and screaming.5 In addition, Ms. Kufner claimed that the children played with the foreskin of their penises and engaged in a "pee-pee dance." These symptoms caused both parents significant anxiety, and each blames the other for their onset.
On February 21, 2006, Ms. Kufner's lawyer in Germany sent a letter to Mr. Kufner requesting an explanation of at least two of the photographs, including one of the most graphic, and when she did not receive an adequate response, Ms. Kufner petitioned for sole custody of the children in the Weilhelm Local Court, Domestic Division ("German court" or "court").
In response, and because he feared Ms. Kufner would leave the country with the children, Mr. Kufner sought and received an ex parte order requiring Ms. Kufner to deposit the children's passports with the court. (Pet'r Ex. 2). The order was by its terms effective until the court made a final determination in the custody matter.
In connection with the custody proceeding, the German court ordered an initial home study to be performed at both parents' homes and scheduled a hearing. On March 1, 2006, the parents attended a court proceeding during which the children were heard by the court in camera. The hearing resulted in a published opinion divided into two relevant sections. The first, under the heading "Order," stated, in full:6
1. Both parties shall exercise the parental custody jointly.
2. The parental custody of both parties shall be restricted to the extent that neither party is entitled to establish for their children a domicile and/or permanent residence abroad without the consent of the other party.
Statement of Reasons:
The ruling corresponds to the agreement as made by and between the parents. There are no apparent grounds to the contrary, which may arise from the best interests of the children and which may require a deviating ruling.
The second began after stating that "[t]he parties conclude the following," and under the heading "Agreement" stated, in full:
1. The Respondent [Mr. Kufner] is entitled to access and contact to his children for the following times:
From 12 March 2006 to 19 March 2006; from 1 April 2006 to 3 April 2006.
2. The parties are in agreement that the Respondent spends the time from 07 April 2006 to 15 April 2006 in Florida, together with his children. On Easter Saturday, 15 April 2006, the children will travel to their maternal grandfather, where they will stay until 23 April 2006 together with the Petitioner [Ms. Kufner].
3. The Respondent is entitled to access and contact to the children for the following additional times: [collecting times]
4. The parties agree that the Petitioner shall be given the children's U.S. passports and that the Respondent shall be given the children's German passports.
5. The parties agree to settle further dates of access and contact to their children by mutual consent as early as August 2006.
6. The cost of the proceedings shall be split.
7. The parties agree to this agreement settling their access and contact to their children in line with the appropriate provisions relating to the proceedings 2 F 140/06.
The next few months were comparatively peaceful, but in the summer of 2006, due in part to his perception that Ms. Kufner was "poisoning" the children against him, Mr. Kufner petitioned for sole custody of the children. (Pet'r Ex. 7). The court asked Martina Hofler, a social worker with the Department of Youth and Families ("DYF")7 to conduct an evaluation of both parents and the children.8 In a letter dated July 10, 2006, Ms. Holler recommended that the court not award sole custody to Mr. Kufner, and she expressed significant consternation over the increased conflict between the parents.
Ms. Kufner claims she then became aware, possibly in the middle of August, of a number of additional photographs that caused her even greater concern.9 After viewing the photographs, she submitted them on August 25, 2006, through her lawyer, to the court in a petition seeking to suspend Mr. Kufner's visitation rights with the children or in the alternative to permit only supervised visitation. Four days later, on August 29, 2006, Ms. Kufner submitted a petition to the court seeking consent to relocate the children to the United States.
Without ruling on either petition, the court ordered an investigation into the...
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