Friedrich v Friedrich (So.Div. Ohio 1991) No. C-1-91-651 1 International Abduction [USA 1994] ============================================================= 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 Date: 28 Apr 1994 ORDER 001 Petitioner Emanuel Friedrich, a citizen and resident of Germany, brings this action under the International Child Abductions Remedies Act, 42 U.S.C. 11601-11610, which implemented the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The United States Court of Appeals for the Sixth Circuit remanded this action for determination of whether under German law Or. Friedrich had custody rights over his son Thomas at the tome of Thomas removal from Germany, and for consideration of any affirmative defenses raised by respondent Jeana Michele Friedrich. Friedrich v. Friedrich, 983 F.2d 1396, 1398, 1403 (6th Cir. 1993). Respondent is Thomas's mother, a citizen of the United States, and a resident of the Southern District of Ohio 002 This matter is before the Court upon the parties' joint stipulation of evidence (doe. no. 47), and the parties' trial briefs (doc. nos. 52, 54, 57). On March 11, 1994, this Court held an evidentiary hearing during which the parties presented testimony and submitted depositions. I. FN 01 003 Mr. Friedrich has the burden of showing by a preponderance of the evidence that the removal of Thomas from Germany was "Wrongful" within the meaning of the Hague Convention. Friedrich, 983 F.2d at 1400. FN 02 The inquiry in whether, under German law, Mr. Friedrich had custody rights over Thomas at the time of his removal from Germany, and whether Mr. Friedrich wan exercising those rights or would have exercised those rights but for the removal. Id. at 139B, 1403. 004 This Court must examine Mr. Friedrich's custody rights under German law FN 03 -- not to resolve the merits of the parties' underlying claims to custody -- but to determine whether the removal violated the Hague Convention. Id. at 1400. 005 Under German law each parent has the right and duty to care for the minor child. "The parents shall exercise the parental care as a personal responsibility and by mutual consent for the benefit of the child. In cases of differences of opinion they must attempt to come to terms.' (doc. no. 47, Exh. 1,  1627). 006 German law provides for termination of a parent's right to care for the minor child only in limited circumstances. For example, if the parents become divorced or separated, the Family Court determines which parent has custody of the child. Id. at  1671(1), 1672. When one parent "is incompetent to enter legal transactions...," his or her parental rights are suspended. Id. at  1673(1). If a parent jeopardizes the child's "physical, emotional or spiritual welfare..., the Guardianship Court has the authority to retake steps necessary for the elimination of the jeopardy." Id. at  1666(1). 007 It is undisputed that prior to the argument between Mr. and Mrs. Friedrich on July 27, 1991, Mr. Friedrich's status as Thomas's father gave him custody rights under German law including the right and duty to care for Thomas. Mr. Friedrich did not terminate or abandon his custody rights during the argument on July ?7, 1991. Although Mr. Friedrich ordered Mrs. Friedrich to leave the apartment with Thomas and placed their belongings into the hall, these acts did not terminate his parental rights under German law. see 983 F.2d at 1399. The parties have presented no provision of German law under which a parent unilaterally terminates or abandons his custody rights by ordering his spouse and child from the family home. Even in cases where parents become formally separated or divorced, which had not occurred here on July 27, 1991, German law requires the Family Court to determine custody rights. It is undisputed that no such Judicial determination existed in this case on July 27, 1991. 008 During the period between July 27, 1991 and August 1, 1991, FN 04 Mr. Friedrich did not terminate or abandon his parental rights under German law. The parties dispute the amount Mr. Friedrich assisted Mrs. Friedrich in obtaining housing after July 27 and whether Mr. Friedrich offered to move out of the apartment. Mrs. Friedrich emphasizes that Mr. Friedrich did not provide any daily care for Thomas during this period. She contends that Mr. Friedrich acquiesced in the removal of Thomas from Germany as Indicated by his statements to Captain Michael Farley, the Commander of the United states Army Base at Bad Albing, Germany, where Mrs. Friedrich was stationed. Captain Farley states that Mr. Friedrich admitted he did not want custody of Thomas and could not care for Thomas as a single parent. 009 Mr. Friedrich has met his burden of showing by a preponderance of the evidence that he was actually exercising his custody rights over Thomas and that he did not terminate or abandon his custody rights between July 27, 1991 and August 1, 1991. Mr Friedrich remained in contact with Mrs. Friedrich and with Thomas during this period and did not exhibit an intention or a willingness to terminate his parental rights. He telephoned Mrs. Friedrich on July 29 to arrange a visit with Thomas. The visit occurred during the afternoon of July 29. Mr. and Mrs. Friedrich met "at least twice to discuss their separation and Thomas's welfare." 983 F.2d at 1399. "Although they gave conflicting accounts of the meeting, both stated that plans were made for Mr. Friedrich to visit Thomas within the next week." Id. at 1402. Under these circumstances and given the lack of a German Court Order terminating Mr. Friedrich's custody rights prior to the removal, Mr. Friedrich was actually exercising his custody rights over Thomas or would have exercised his custody rights but for the removal. 010 Accordingly, Mr. Friedrich has satisfied his burden of demonstrating by a preponderance of the evidence that the removal of Thomas from Germany on August 1, 1991 was wrongful within the meaning of the Hague Convention. III. 011 Since Mr. Friedrich has established that the removal of Thomas from Germany was wrongful, the burden shifts to Mrs. Friedrich to establish any affirmative defenses. Friedrich, 983 F.2d at 1400. 012 Four affirmative defenses to wrongful removal exist under the convention. FN 05 Mrs. Friedrich relies on the first of these defenses contending that if Thomas is returned to Germany, a grave risk exists that he will be exposed to psychological harm or an intolerable situation. To establish this affirmative defense, Mrs. Friedrich must establish the existence of a grave risk by clear and convincing evidence. 983 F.2d at 1400. 013 Mrs. Friedrich argues that the testimony of Dr. Edward Blaske demonstrates that moving Thomas back to Germany after living in Ironton, Ohio for the past 2 1/2 years will cause him grave psychological harm. Mrs. Friedrich contends, "This Court and these parties cannot escape the fact that the most significant part of this young boy's life, of which he knows about, has occurred in Ironton, Ohio, with his mother and unfortunately without his father. Drastically altering Tommy present situation by ordering his return to Germany, to the exclusion of his mother, can only result in disaster for this child." (doc. no. 52, p. 6) 014 Mr. Friedrich challenges Dr. Blaske's opinion on the ground that the evaluation of Thomas was incomplete in numerous respects. 015 The Court finds that Mrs. Friedrich has not established by clear and convincing evidence that returning Thomas to Germany will expose him to a grave risk of psychological harm. 016 Dr. Blaske testified that Thomas appeared to be a happy child whose primary relationship is with his mother. He is close to his uncle, Mrs. Friedrich's brother, and his maternal grandparents, who live in Ironton, Ohio. When asked about what effect a separation from his mother would have on Thomas, Dr. Blaske responded, "The probabilities are extremely high that he would experience severe trauma, and it would put him at considerable psychological risk to nurture healthy developmental emotions and behaviors." (Blaske dep., p. 29). Dr. Blaske describes the likely loss Thomas will experience if he returns to Germany without his mother as follows: [Thomas] definitely would experience the loss of his mother... if he were to be removed to Germany. That would be a considerable loss . And there then would be the probabilities of anger both towards his mother, who it might appear that she has abandoned hem, and towards the father for creating that abandonment. That abandonment, fear is directly related to the anxiety and that could be plenty enough springboard for other developmental or emotional restrictions which could include nightmares, antisocial behavior, a whole host of anxious-type behaviors. * * * * To the best of our abilities, all the ingredients are there to suggest higher probabilities that these things would occur. Id. at 28-29. Dr. Blaske also describes the effects of a separation on Thomas as a "grave psychological wrong." Id. at 27-28. 017 Dr. Blaske's testimony constitutes some evidence of a risk of psychological harm to Thomas if he is separated from his mother. Dr. Blaske's opinion, however, does not amount to clear and convincing evidence that a grave risk of psychological harm to Thomas will exist if he is returned to Germany. It is the separation of Thomas from his mother that is of concern to Dr. Blaske not Thomas return to Germany. Dr. Blaske's characterization of the risk to Thomas as a high probability is based more on his conclusions regarding relevant psychology "literature" than upon an articulated analysis of accepted psychological principles applied to the specific facts of the instant case, see id. at 24, 26-27, as he does not specialize in treating children Thomas's age but instead refers them to someone who specializes in "child therapy." Id. at 31-32. Dr. Blaske's experience and practice is generally with older children, adolescents' or adults. WMH FN 01 018 Dr. Blaske did not interview or evaluate Mr. Friedrich and because of this omission, his conclusions are not based on an evaluation of the total situation Thomas will encounter if he returns to Germany. This omission is significant in the instant case because Mr. Friedrich testified that Thomas reacted positively to him during a recent visit and because the record contains evidence that Mr. Friedrich will be able to provide Thomas with a safe, loving home in Germany. 019 Blaske's testimony is therefore insufficient to establish by clear and convincing evidence a grave risk of psychological harm to Thomas if he in returned to Germany. This court reemphasizes it has no authority to determine custody. 020 Mrs. Friedrich points to the dissent in In re Marriage of: Ieroniamkis, 831 P.2d 172 (Wash. 1992) (doc. no. 52, Exh. 8), which found that a grave risk of harm to the children would exist if they were returned to Greece. The dissent concluded: [T]o return the children to Greece would place them in an intolerable situation, given the history of domestic violence, given these children's close bonding with their mother and given the lack of any assurance that to return the children to Greece will not cause them to lose the companionship of their mother, perhaps for all the remainder of their childhoods. Any such lose of their mother's companionship would irrefutably cause these children grave psychological harm. Id. at 195, 021 The record in the instant case does not demonstrate by clear and convincing evidence that Thomas will be exposed to a grave risk of harm similar to that faced by the children in Ieroniamkis. There in no evidence that Thomas has been physically abused or that if he returns to Germany he will be deprived of Mrs. Friedrich's companionship for the remainder of his childhood. Mr. Friedrich's testimony tends to show that Thomas will experience a safe home environment in Germany. Mr. Friedrich has obtained unlimited leave from work in order to help Thomas adjust. Mr. Friedrich's mother has agreed to care for Thomas when Mr. Friedrich is working. WMH FN02 Mr. Friedrich testified that Thomas will be surrounded by American children and that he will have access to English-language television. If Thomas lives in Mr. Friedrich's apartment, he will have a bedroom of his own. The apartment is located in a quiet neighborhood which is surrounded by farmland and forests. Mr. Friedrich lives only a short walk from his parents' home. 022 This is not to denigrate Thomas's present home life in Ironton, Ohio. Thomas is now four years and four months old. He had lived in Ironton, Ohio since his removal from Germany. He currently lives with Mrs. Friedrich in a three bedroom trailer near the home of Mrs. Friedrich's parents. Mrs Friedrich has provided Thomas with a comfortable home where he is very well cared for and loved by many family members. People in the Ironton community, especially members of Mrs. Friedrich's church, know Thomas and enjoy seeing him and playing with him. 023 Despite these facts, the Hague Convention requires the return of Thomas to Germany. This Court may not weigh the equities or attempt to resolve the underlying custody rights as part of its analysis of whether a violation of the Hague Convention has occurred. 983 F.2d at 1400. The record does not contain clear and convincing evidence of a grave risk of harm to Thomas because of his return to Germany. 024 Accordingly, Mrs. Friedrich has not met her relatively high burden of showing by clear and convincing evidence that returning Thomas to Germany will expose him to a grave risk of psychological harm. Lacking proof of any other affirmative defense, the Court concludes that Thomas was wrongfully removed from Germany within the meaning of the Hague Convention and that Thomas must therefore be returned to Germany. ORDER 025 The Court ORDERS that the petitioner's request for the return of Thomas Friedrich to Germany pursuant to the Hague Convention an implemented in the International Child Abductions Remedies Act, 42 U.S.C.  11601-11610 is GRANTED. 026 The parties, the United States of America, Emanuel Friedrich, and Jeana Michele Friedrich, have agreed in open court that Mrs. Friedrich will retain physical control of Thomas and will return Thomas to Germany forthwith at her own expense. The bond established previously in this matter shall be continued with the additional condition that Mrs. Friedrich will comply with her agreement to return Thomas to Germany forthwith. 027 The case is terminated on the docket of this Court. IT IS SO ORDERED. Comments by Wm. M. Hilton WMH FN01 By implication the court finds that any trauma to the child caused by the separation should be laid at the feet of Mrs. Freidrich since it would be because she would not accompany the child to Germany. The English courts, in C v C (Abduction; Rights of Custody) (UK 1989) [1989] 2 All ER 465, when ruling on an Art. 13(b) defense on this issue of the effect of separating a child from a parent, held the following: "The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him. The Convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reason, not for the sake of the child. Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny his contact with his other parent." Similarly the Swiss Courts, in Korowin v Korowin (Switzerland 1992) No. 4891072U/ER4SV/ez, 1 International Abduction [SWITZERLAND 1992], held that: "d) But the above explanation also shows the unhappy consequences of the Hague Convention. It only requires the return of the child, while actually it should also require the return of the defendant. However, this drawback is not overwhelming in the case at hand. As a responsible mother who has the interest of her child at heart, and in view of her own description of her extraordinarily close ties with Devin James (Prot. p. 14 ff), as well as the confirmation of that fact by the summary expert opinion of December 5, 1991 (act. 30), and the pediatrician's certificate of October 26, 1991, which she filed herself (act. 22), the defendant will hardly refuse to accompany the child on his return. Should she refuse and thereby expose her child to a serious danger of physical or psychological harm, it will have to be assumed that she places her own welfare above that of the child. Thus it is exclusively up to the defendant whether Devin James will be exposed to a serious risk of physical or psychological harm within the meaning of Art. 13, paragraph 1, letter b, of the Hague Convention. This is not sufficient under the existing jurisprudence and case law to deny the return of the child in accordance with Art. 13 of the Hague Convention (Zœi 88 no. 24 with sources)." A contra view of this issue was set forth in Steffen F v Severina P. (D.Ariz. 1997) 966 F.Supp. 922, where the court held that "unbonding" the child from the mother, who refused to return with the child, would case grave risk to the child. In light of the great weight of decisions prior to Steffen F., it is felt, with due respect, that this case is an anomaly and should not be given any significant weight. This is particularly true since this issue was, by implication, considered and recjectd in Friedrich II. WMH FN02 The California Supreme Court, in Burchard v Garay (Cal. 1986) 42 Cal.3d 531 [724 P.2d 486], made the following comments about day care, at 539 - 540 (Foot Notes Omitted): "The court also referred to the fact that Ana worked and had to place the child in day care, while William's new wife could care for the child in their home. But in an era when over 50 percent of mothers and almost 80 percent of divorced mothers work, the courts must not presume that a working mother is a less satisfactory parent or less fully committed to the care of her child. A custody determination must be based upon a true assessment of the emotional bonds between parent and child, upon an inquiry into "the heart of the parent-child relationship . . . the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond." (In re Marriage of Carney, supra, 24 Cal.3d 725, 739.) It must reflect also a factual determination of how best to provide continuity of attention, nurturing, and care. It cannot be based on an assumption, unsupported by scientific evidence, that a working mother cannot provide such care--an assumption particularly unfair when, as here, the mother has in fact been the primary caregiver." FOOTNOTES -------------------- 1. The factual background of this case in set forth in this court's previous Order (doc. no. 28), and in the Court of Appeals' opinion, 983 F.2d at 1398-99. 2. Article 3 of the Hague convention provides that 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 the removal or retention those rights were actually exercised or would have been exercised but for the removal or retention. 983 F.2d at 1400 3. German law applies to determine Mr. Friedrich's custody rights because it is the law of the case that at the time of Thomas' removal from Germany, his habitual residence was Germany. 983 F.2d at 1402. 4. Mrs. Friedrich removed Thomas from Germany on August 1, 1991. 963 F.2d at 1399. 5. When one party establishes a wrongful removal under the Hague Convention, the burden shifts to the other party to show: (1) by clear and convincing evidence that there in a grave risk that the return of the child would expose the child to physical or psychological harm; (2) by clear and convincing evidence that the return of the child would not be permitted by the principals of the requested State relating to the protection of human rights and fundamental freedoms; (3) by a preponderance of the evidence that the proceeding were commenced more than one year after the abduction and the child has become settled in its new environment; 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. 983 F.2d at 140 (citations omitted).