UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION IN RE THE APPLICATION OF EMANUEL FRIEDRICH, Petitioner v. C-1-91-651 JEANA MICHELE FRIEDRICH, et al Respondents ORDER Petitioner Emanuel Friedrich, a legal resident and a citizen of the Federal Republic of Germany, brings this action under the Convention on the Civil Aspects of International Child Abduction (The Convention) (attached as Appendix A) as implemented by the United States Congress in the International Child Abduction Remedies Act, 42 U.S.C. Secs. 11601-11610. Petitioner seeks the return of his minor son Thomas to Germany. He alleges that his wife Jeana Michele Friedrich, a citizen of the United States of America, removed their son Thomas from Germany and took him to the United States without petitioner's consent. Respondents are Jeana Friedrich and her parents, Shirley Harper and David Harper, all of whom are legal residents of the Southern District of Ohio. This matter is before the Court following an evidentiary hearing held on October 16, 1991. The parties have submitted proposed findings of fact and conclusions of law (doc. nos. 26, 27). This Court has jurisdiction over the petition pursuant to 42 U.S.C. Sec. 11603(a). Relevant Facts In December 1989, petitioner and respondent Jeana Friedrich, were married at Bad Aibling, Federal Republic of Germany. At that time, Jeana Friedrich was a member of the United States Army stationed in Bad Aibling and was at all times a citizen and legal resident of the United States. Petitioner was employed on the military base in Bad Aibling as a club manager and bartender. He was at all times a citizen and legal resident of the Federal Republic of Germany. On December 29, 1989, the Friedrichs' only child, Thomas David Friedrich, was born in Bad Aibling. During 1990 and early 1991, Thomas Friedrich was with both of his parents in Bad Aibling. Soon after the Friedrichs were married they began experiencing marital problems, and in June 1990 they informally separated for the first time. This separation lasted one weekend. The Friedrichs informally separated for a second time in March 1991. For several weeks during this separation petitioner and his parents retained physical possession of Thomas, and Jeana Friedrich was billeted at the United States military base in Bad Aibling. In early May 1991 the Friedrichs agreed that Thomas would accompany Jeana Friedrich on a ten-day visit to her parents' home in Ironton, Ohio. On or about May 19, 1991, Jeana Friedrich returned to Germany with Thomas, and the Friedrichs reunited. From this time until late July 1991, the Friedrichs jointly exercised parental rights over Thomas. On the evening of July 27, 1991, Emanuel and Jeana Friedrich had a serious argument in their apartment. During this argument, Emanuel Friedrich ordered Jeana Friedrich to leave the apartment with Thomas, and he physically threw clothing, personal items, and some of Thomas's toys out of the apartment and into the hall. The following day Jeana Friedrich obtained assistance from her United States Army Commanders and friends who helped her move Thomas and their belongings to the on-base visiting quarters where she temporarily lived with Thomas from July 28, 1991 to August 1, 1991. Jeana Friedrich was forced to pay for these accommodations. In the interim period, she sought other less expensive living arrangements for herself and her son since she could not afford the unexpected expenses. Jeana Friedrich's Commanders assisted her in this endeavor, but no off-base accommodations were available for both her and Thomas. Under military regulations Jeana Friedrich could not live in the barracks on the base with her son; she could only live there by herself. Jeana Friedrich concluded that she had nowhere to live with her son in Germany, and she also concluded that her only recourse was to return to the United States and seek assistance from her parents. She had no other reasonable recourse but to beseech her parents in Ohio to house Thomas until she could arrange an emergency discharge from the Army and return to Ironton, Ohio. On August 1, 1991, therefore, Jeana Friedrich left Germany with her son without petitioner's permission, consent, or knowledge. Jeana and Thomas Friedrich arrived in Ironton, Ohio on August 2, 1991. Jeana Friedrich initiated a divorce action in Lawrence County, Ironton, Ohio on August 9, 1991, and the Court issued a Letter Rogatory to the appropriate German authorities, in an attempt to effect service of process upon petitioner. Petitioner claims that he did not receive the letter or any notice of the judicial proceedings in Lawrence County. On August 11, 1991, Jeana Friedrich returned to Germany without her son and immediately sought an emergency discharge from the United States Army. At some point, petitioner filed a claim in Germany seeking to obtain parental custody of Thomas. On August 22, 1991, a Municipal Court-Family Court in Rosenheim, Germany granted petitioner parental custody of Thomas. Jeana Friedrich neither attended nor received notice of the judicial proceedings in Germany. On August 25, 1991, Jeana Friedrich found a document taped to her barracks door. The document was a copy of a German Court Order, typed in the German language, with no English translation, which indicated that Emanuel Friedrich had been awarded temporary custody of Thomas and ordered his immediate return from the United States to Germany. On August 28, 1991, the Lawrence County, Ohio, Court of Common Pleas issued a temporary custody order in favor of Jeana Friedrich and ordered the child not be removed from Ohio until further Order of the Court. On September 15, 1991, the United States Army discharged Jeana Friedrich from military service. She then returned to her parents' home in Ironton, Ohio. Petitioner filed the instant action on September 23, 1991. On October 16, 1991, following a hearing on the merits of the petition, this Court Ordered respondents to file a real estate property bond conditioned that they would obey the orders of this Court and they would assure the remaining presence of Thomas Friedrich in the Southern District of Ohio. Respondents complied with that Order on October 25, 1991 (doc. no. 19). OPINION Petitioner argues that under The Convention, he is entitled to an Order directing respondents to return Thomas Friedrich to Germany. He contends that the removal of Thomas Friedrich from Germany was "wrongful" within the meaning of Articles 3 and 5 of the Convention because at the time of removal, he was exercising parental custody rights over Thomas. Respondents argue that petitioner has not met his burden of proving that Thomas Friedrich was wrongfully removed or retained from Germany because petitioner was not actually exercising his parental custody rights and was in no way caring for Thomas at the time of removal. "The Convention's goal is to curb international abductions of children by divorced or divorcing parents by providing judicial remedies to those seeking the return of a child who has been wrongfully removed or retained within the meaning of the Convention." In the Matter of Mohsen 715 F.Supp. 1063, 1064 (D. Wyo. 1989); see also 42 U.S.C. Sec. 11601. Petitioner bears the initial burden of proving, by a Preponderance of the evidence, that Jeana Friedrich wrongfully removed or retained Thomas. See Chp. I, Art. 3; Chp. III, Arts., 8, 13; see also 42 U.S.C. Sec. 11603(e)(1); Meredith v. Meredith, 759 F. Supp. 1432, 1434 (D. Ariz. 1991). The removal or retention of a child is wrongful where: 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 subparagraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under the law of that State. Chp.I, Art. 3. The term "habitual residence" is not specifically defined by the Convention and must therefore be determine by reference to the facts and circumstances presented in each case. Meredith, 759 F.Supp. at 1434. In determining whether a wrongful removal occurred, this Court "shall not decide ... the merits of rights of custody..." Chp. III, Art. 16.; see also Meredith, 759 F.Supp. at 1434. "The sole fact that a decision relating to custody has been given or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but [this Court] may take account of the reasons for that decision in applying this Convention." Chp. III, Art. 17. Petitioner has not established that he is entitled to an Order for the return of his son under the Convention. Although on direct examination petitioner denied throwing his wife's belongings and some of Thomas's toys into the hall on July 27, 1991, he admitted on cross examination that he moved some items into the hall, including "parts" of some toys. Given this admission, it is clearly established that petitioner expelled Jeana and Thomas Friedrich from their residence on July 28, 1991. By unilaterally expelling Thomas from his residence on July 28, 1991, petitioner terminated his actual exercise of his parental custody rights over Thomas. Consequently, when Jeana Friedrich took Thomas to the United States without petitioner's knowledge or consent, she did not wrongfully remove Thomas from Germany within the meaning of the convention. See Chp. I, Art. 3(b). The petition also lacks merit because by expelling Thomas from the Friedrichs' home on July 28, 1991, petitioner altered Thomas's habitual residence from his in Germany to that of his mother in the United States. This is so because petitioner's acts forced Jeana Friedrich to obtain housing for Thomas on property in the control of United States, the United States military base in Bad Aibling, and forced her to return to the United States to find housing for Thomas. Under these circumstances, Thomas's habitual residence became the United States on July 28, 1991, at the time petitioner ordered his wife and child out of their home, thereby rendering relief under the Convention unavailable to petitioner. See Chp. I, Art. 3(a). In determining the issues presented by the petition, this Court declines, under Chapter III, Article 17 of the Convention, to give effect to the Court Orders entered in either the United States or Germany. This Court also makes no determination on the merits of the underlying custody dispute between the parties. See Chp. III, Art. 16. The Court finds that the only feasible plan submitted by the central authorities or the parties for the care of Thomas pending the determination of his status by the parties or by a court with jurisdiction over the custody dispute, is to maintain the present status quo. The Court further finds, based on the record before it, that maintaining the status quo is in the best interests of the child. See Chp. I, Art. 1; 42 U.S.C. Sec. 11601. Accordingly, the Court hereby ORDERS that petitioner Emanuel Friedrich's First Amended Complaint for return of child to petitioner (doc. no. 8), is hereby DENIED. In order to assure the presence of Thomas Friedrich within this Court's jurisdiction and to assure that respondents will obey the orders of this Court, the Court further ORDERS respondents' property bond to remain in effect until the time for filing an appeal of this Order has lapsed or until all appeals of this Order are resolved. The Court hereby ORDERS respondents to keep Thomas within the jurisdiction of this Court in the Southern District of Ohio until further Order of this Court. This matter is otherwise TERMINATED on the docket of this Court. IT IS SO ORDERED. /s/ Herman J. Weber Herman J. Weber, Judge United States District Court ================================================================= This decision has been reversed by Friedrich v. Friedrich (6th Cir. 1993) 983 F.2d 1396