Kufner v. Kufner

• Citation: 519 F.3d 33
• Decision Date: 07 March 2008
• Docket Number: No. 07-1523.,07-1523.
• Parties: Dominik KUFNER, Petitioner, Appellee, v. Tina KUFNER, Respondent, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

519 F.3d 33

Dominik KUFNER, Petitioner, Appellee, v. Tina KUFNER, Respondent, Appellant.

No. 07-1523.

United States Court of Appeals, First Circuit.

Heard January 9, 2008.

Decided March 7, 2008.

Thomas M. Dickinson, for appellant.

Bradford N. Martin, with whom Gerald Nissenbaum was on brief, for appellee.

Before LIPEZ, Circuit Judge, SELYA, Senior Circuit Judge, and SILER,^* Senior Circuit Judge.

SILER, Senior Circuit Judge.

In 2007, Dominik Kufner filed a petition in the United States District Court for the District of Rhode Island alleging that his wife, Tina Kufner, wrongfully removed the couple's two minor sons, J.K. and M.K., from Germany to Rhode Island. He sought an order returning them to Germany in his custody, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501 [hereinafter Hague Convention], as implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. Tina argued that returning their sons to Germany would create a "grave risk of harm," a defense to a petition under Article 13(b) of the Hague Convention. The district court granted Dominik's petition and ordered that the sons be returned to Germany.

Tina Kufner appeals, arguing, inter alia, that the district court erred by concluding that she had "wrongfully removed" the sons and that the Hague Convention violates the equal protection component of the Due Process Clause of the Fifth Amendment. Because none of her arguments has any merit, we AFFIRM.

I.

Tina is a United States citizen and native of Rhode Island. Dominik is a German citizen who owns a business in Munich, Germany. They married in 1996 and settled in Munich. In 1998, they had their first son, J.K., and in 1999 they had a second son, M.K. Tina and Dominik began having marital problems and they separated in 2005. During the separation period, they informally agreed to share time with their sons. At first, this arrangement worked well because Dominik traveled often, but in early 2006 their relationship began to deteriorate after Tina discovered graphic photographs of the sons taken by Dominik.

Dominik took 49 photographs of the sons at his house in 2005. Tina submitted 43 of them to the court in support of her Article 13(b) defense that her sons would face a grave risk of harm if returned to Germany. The district court described 39 of the photographs as relatively innocuous pictures of the children playing and laughing, naked, in the living room of Dominik's house. The other four photographs were more graphic in nature. Dominik stored the photographs on his computer.

Tina learned of the photographs in January 2006. In early February 2006, Dominik spent ten days alone with the sons during ski week, a German school holiday. After returning from the ski week holiday, the sons began to display disturbing physical symptoms, including bed-wetting, nervous eye twitching, sleeplessness, and nighttime crying and screaming. The parents blamed each other for the problems.

Tina's German lawyer sent a letter to Dominik demanding an explanation for the photographs. When she did not receive an adequate response, she petitioned for sole custody in the German court. Dominik feared that she would leave the country with the sons, so he obtained an order requiring her to deposit their passports with the court. The German court ordered a home study for both parents' homes and talked with the sons in camera. It then issued a written opinion, holding that the parents must exercise joint parental custody, specifying the dates on which the parents can have access to the sons and where they can travel with them, and ordering that their passports be returned to Tina.

The next few months were comparatively peaceful, but in summer 2006, Dominik petitioned the German court for sole custody. The court requested a social worker with the Department of Youth and Families to conduct an evaluation of the parents and the sons. The social worker recommended that the court deny his petition for sole custody and expressed concern about the acrimony between the parents. Also in summer 2006, the parents feuded over M.K.'s medical care. M.K. had developed problems with his ear, nose, and throat. Tina believed that he needed an operation on his adenoids, but Dominik asserted that an operation was not medically necessary. This dispute further increased the tension between the parents.

Tina petitioned the German court to suspend Dominik's visitation rights or, in the alternative, to permit only supervised visitation. Four days later, she petitioned for permission to relocate the sons to the United States. Without ruling on either petition, the German court ordered an investigation of the photographs. A "court-appointed company" was supposed to conduct this investigation, but, because of a file mixup, it never received the photographs and it never conducted the investigation. Instead, the GWG¹ performed a custody evaluation, including an evaluation of the photographs.

The GWG appointed a certified psychologist to interview each member of the family. After conducting the interviews, she advised the court by letter that both parents should retain contact with the sons. The GWG later produced a "Psychological Expert Opinion" that concluded that Dominik's personality was within "the normal range," that the interactions between him and the sons were positive and loving, and that they were happy, healthy, and displayed age-appropriate development. The report concluded that the photographs had not negatively affected the sons. It further warned that the continuing deterioration of the parents' relationship was harming them, and it noted that Tina was unable to appreciate his role in raising them.

On October 18, 2006, without a prior hearing, the German court issued a temporary "Ruling on Access and Contact," which was to be followed until the court determined the final merits of the custody case. In this ruling, the court ordered that Dominik be given rights of access to the sons and that the parents must refrain from having disputes in their presence. The court concluded that the photographs did not indicate that he was a pedophile and that he did not inappropriately encourage sexualized behavior of the sons.

On November 12, 2006, the German court issued an injunction structuring Dominik's visitation rights over the Christmas holidays. The injunction forbade Tina from traveling to the United States with the sons. The court ordered her to deposit their American passports with the Department of Youth and Families. On December 20, 2006, the court conducted a hearing and met with the sons in the absence of their parents. Later, at the same hearing, the parents agreed to a settlement on visitation rights during the holidays that conformed with the November 12 injunction. The agreement required Tina to deposit the sons' American passports with the United States consulate and to refrain from traveling to the United States over the Christmas holidays.

In January 2007, in direct violation of the German court orders, Tina obtained the sons' American passports from the consulate and fled to the United States without notifying Dominik or the German court. On January 31, 2007, Dominik filed a petition in the district court seeking return of the sons to Germany in his custody. While this case was pending, on February 16, 2007, he obtained a temporary order from a German court awarding him full custody.

Pursuant to Federal Rule of Civil Procedure 17(c) and with the consent of the parties, the district court appointed Sharon O'Keefe as guardian ad litem and attorney for the sons. O'Keefe recommended that the district court (1) view all of the photographs, (2) appoint an independent expert with clinical training and expertise to determine whether the photographs were pornographic, (3) consider the German child welfare agency's view on the photographs and its evaluation of the parents, and (4) analyze the effectiveness of the German investigations. After interviewing the sons, O'Keefe determined that they "had taken an unhealthy view of their power and responsibility in the custody determination, and that any more involvement of the children in the proceeding would be significantly harmful." O'Keefe reported that the sons stated they were attached to their mother and, if asked, they would want to live with her.

Upon O'Keefe's recommendation, the district court ordered the parents to take M.K. to a physician to address his medical issues. After a sleep test, the physician diagnosed M.K. with mild to moderate sleep apnea and recommended surgery to remove his tonsils and adenoids, but he stated that this surgery was not urgently needed.

The district court heard evidence from the parties. The heart of Tina's argument was the Article 13(b) grave risk of harm defense based on the photographs of the sons and the alleged failure of German officials to take the photographs seriously. The district court relied heavily on its court-appointed independent expert in pediatrics, child abuse, child sexual abuse and child pornography, Dr. Carole Jenny. Specifically, the district court asked Dr. Jenny whether (1) the photographs of the sons constituted child pornography and (2) whether the behavior problems suffered by the children were indications of sexual abuse.

Dr. Jenny reported that there was no evidence to suggest that Dominik was a pedophile, that he was sexually aroused by children, or that the pictures were pornographic. She approved of the German investigations and stated that they were accurate assessments and that their conclusions were consistent with their reported observations. She determined that the symptoms that the sons displayed were consistent with the stress in their lives caused by the acrimonious custody dispute. She recommended that the sons not undergo further sexual abuse evaluation because it would increase their...