Wanninger v. Wanninger, Civ. A. No. 94-30081-MAP.

• Decision Date: 15 April 1994
• Docket Number: Civ. A. No. 94-30081-MAP.
• Citation: 850 F. Supp. 78
• Parties: Manfred WANNINGER, Petitioner, v. Catherine Jean WANNINGER, Respondent.
• Court: U.S. District Court — District of Massachusetts

850 F. Supp. 78

Manfred WANNINGER, Petitioner, v. Catherine Jean WANNINGER, Respondent.

Civ. A. No. 94-30081-MAP.

United States District Court, D. Massachusetts.

April 15, 1994.

Kenneth P. Neiman, Anne V. Romano, Fierst & Neiman, Northampton, MA, for petitioner.

William E. Hart, David R. Kaplan, Brown, Hart & Kaplan, Amherst, MA, for respondent.

MEMORANDUM REGARDING PETITION FOR RETURN OF CHILDREN

(Docket No. 1)

PONSOR, District Judge.

I. INTRODUCTION

Petitioner, Manfred Wanninger ("Manfred") alleges that his wife Catherine Wanninger ("Catherine") wrongfully retained their children in the United States without his consent. He now seeks the immediate return of his three minor children to Germany. On April 11, 1994, Manfred appeared before this court ex parte seeking a warrant in lieu of a writ of habeas corpus for the return of his children pending further action pursuant to the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11603(b). The court denied this request but did require that the respondent, Catherine Jean Wanninger, appear with the three children before the court later the same day. At that hearing, with both parties present, the court established a scheduling order and set the matter down for further hearing today.

In ruling on petitioner's motion, the court must decide whether Catherine's conduct — remaining in the United States with the three children and not returning to Germany — was "wrongful" as defined by the Hague Convention. As Justice Rigler noted in Sheikh v. Cahill, 145 Misc.2d 171, 546 N.Y.S.2d 517 (1989), modern advances in travel has produced numerous benefits to society. However, this increase in mobility has also caused major problems in the areas of matrimonial law and custody rights. "One of the hardest problems concerns the removal of a child from the jurisdiction by one parent without the consent of the other." Id., 546 N.Y.S.2d at 518. This case is no exception.

II. FACTS

The facts of this case are as follows. Manfred is a German citizen who met his wife Catherine, a U.S. citizen, while studying at the University of Massachusetts in Amherst. They married and took up residence in Germany in November, 1987. The couple has three children: Natascha, age six; Tatjana, age four; and Sebastian, age three. All three children have lived in Germany their entire lives.

On November 25, 1993, Catherine took the children to Amherst, Massachusetts for a visit with her parents. Originally, her plan was to stay in the United States for six weeks. But after she arrived to the United States, she had second thoughts about returning to Germany with her children and, it seems, questioned her marriage to Manfred. On January 12, 1994, Catherine contacted a German neighbor and asked her to tell Manfred that she had decided to stay in the Amherst area with the children and would not return to Germany.

At first, Manfred attempted to reconcile his problems with Catherine. He came over to the United States in mid-February to convince her to return home with the children. After learning that Catherine did not intend to return to Germany with the children, Manfred sought relief in the German courts. On April 6, 1994, the German Family Court (Court of Schwetzingen) issued a ruling that Catherine had violated the Hague Convention by wrongfully retaining the children in the United States. Manfred then petitioned this court, pursuant to 42 U.S.C. § 11603(b), for relief under the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention") implemented by ICARA. Manfred seeks an order by this court to allow him to return to Germany with his children immediately.

III. DISCUSSION

The Hague Convention is an international treaty designed "to protect custody rights on a global scale" and was adopted

to protect children 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.

51 Fed.Reg. 10,498 (1986); Meredith v. Meredith, 759 F.Supp. 1432, 1433 (D.Ariz.1991). In order to establish this goal, the Convention requires signatories to act promptly to restore the situation that existed prior to a child's removal from his or her habitual residence. Currier v. Currier, 845 F.Supp. 916, 1994 WL 86375 (D.N.H.1994), 1994 U.S.Dist. LEXIS 3208. Both the United States and Germany are signatories to the Hague Convention.

In 1988 Congress passed the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. 11601 et seq. (1988), in order to establish procedures to implement this aspect of the Hague Convention in the United States. David S. v. Zamira S., 151 Misc.2d 630, 574 N.Y.S.2d 429 (1991). Taken as a whole, these procedures are aimed at maintaining the status quo and deterring parents from crossing international boundaries in search of a more sympathetic court. Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993).

The Convention authorizes a federal district court to determine the merits of the abduction claim but does not allow it to consider the merits of the underlying custody dispute. Currier v. Currier, 845 F.Supp. 916, 1994 WL 86375, 1994 U.S.Dist. LEXIS 3208, citing Friedrich v. Friedrich, 983 F.2d 1396, 1399 (6th Cir.1993); Meredith v. Meredith, 759 F.Supp. at 1434. Therefore, the court's inquiry is limited to whether Catherine's retention of the children was "wrongful" under the Convention.

In order to prevail, the petitioner has the burden of proving by a preponderance of the evidence that the three children were "wrongfully retained" within the meaning of the Convention. Currier v. Currier, 845 F.Supp. 916, 1994 WL 86375, 1994 U.S.Dist. LEXIS 3208 (1994); 42 U.S.C. § 11603(e)(1)(A). "Wrongful retention" occurs 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.

Convention, Art. 3.

If the petitioner carries his burden of proving that the retention was "wrongful," the court is required to order immediate return of the children unless the respondent meets one of four limited exceptions. These exceptions are: (1) grave risk that return of the children would expose them to physical or psychological harm; (2) violation of fundamental principles of the requesting State relating to the protection of human rights and fundamental freedoms; (3) delay more than one year after the children have become settled in a new environment; or (4) consent by the petitioner to the removal or retention. The first two exceptions must be proved by clear and convincing evidence, while the latter two need only be proved by a preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(A) and (B).

Based on the facts before it today, the court is compelled to grant petitioner's request to return to Germany with the three children. There is no dispute that, except for a few visits to Catherine's parents in the United States, the three children have lived in Germany. All three children were born in Germany and attend school there. This being the case, the court finds that the children were "habitually resident" in Germany immediately prior to their removal by Catherine. Moreover, prior to their removal, petitioner was exercising his lawful rights of custody over the children. The issue of custody must be addressed under German law. Friedrich v. Friedrich, 983 F.2d at 1402. Petitioner has attached a copy of the relevant provision of the German Civil Code which gives both parents joint custody of the children. See Petitioner's Exhibit D, German Civil Code § 1626. Because the children were habitually resident in Germany and because Manfred is entitled to joint custody, they must return to Germany absent some exception.

None of the statutory exceptions applies to this case. It is undisputed that the children arrived in the United States some time in November of 1993, less than one year from the time Manfred instituted this proceeding to return the children to Germany. Therefore, the exception relating to the children being settled in a new environment for more than one year is inapplicable. Respondent is left with only three exceptions, all of which are construed very narrowly, and are not warranted by the facts in this case.

Respondent's central argument is that, even if petitioner has met his initial burden of proof, the children should not be returned to Germany because petitioner acquiesced to the retention of the children in the United States. To invoke this exception, respondent must prove by a preponderance of the evidence that petitioner consented to or subsequently acquiesced to their retention. Even if one of the exceptions is found applicable, the court is not required to refuse a return order. Levesque v. Levesque, 816 F.Supp. 662, 667 (D.Kan.1993).

In support of her position, Catherine offers the following evidence. First, during an argument sometime in August or...