Friedrich v Thompson (Middle Dist 1999) Civ No 1: 99 CV 00772 (Merits of case) 15 Interntional Abduction [USA 1999] =========================================================== IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA EMANUEL FRIEDRICH, ) Petitioner, ) ) v. ) 1:99CV00772 ) JEANA MICHELLE THOMPSON, ) Respondent. ) ORDER AND JUDGMENT FOR RETURN OF CHILD TO PETITIONER Beaty, District Judge. 001 This matter is before the Court on Petitioner Emanuel Friedrich's ("Friedrich") Petition for Return of Child to the Petitioner [Document #1] and on Friedrich's Motion for Return of Child to Petitioner and Attorney's Fees [Document #2]. Both documents were filed pursuant to the Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 49 [hereinafter the Hague Convention], and the provisions of the International Child Abduction Remedies Act, 42 U.S.C.  11601 ("ICARA"). For the reasons enumerated in the MEMORANDUM OPINION filed contemporaneously herewith, Friedrich's Motion for Return of Child to Petitioner [Document #2] is GRANTED. With respect to Petitioner's motion for attorney's fees, Respondent Jeana Michelle Thompson ("Thompson") is ordered to respond on or before September 23, 1999. The Court will thereafter consider the appropriateness of Petitioner's request for attorney's fees and necessary expenses. This the 26th day of November, 1999. /s/ James Beaty ____________________________ United States District Judge =========================================================== IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA EMANUEL FRIEDRICH, ) Petitioner, ) ) v. ) 1:99CV00772 ) JEANA MICHELLE THOMPSON, ) Respondent. ) MEMORANDUM OPINION Beaty, District Judge. I. INTRODUCTION 002 This matter is before the Court on Petitioner Emanuel Friedrich's ("Friedrich") Petition for Return of Child to the Petitioner [Document #1] and on Friedrich's Motion for Return of Child to Petitioner and Attorney's Fees [Document #2]. Both documents were filed pursuant to the Convention on the Civil Aspects of International Child Abduction, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 49 [hereinafter the Hague Convention], and the provisions of the International Child Abduction Remedies Act, 42 U.S.C.  11601 ("ICARA"). For the reasons stated herein, Friedrich's Motion for Return of Child to Petitioner [Document #2] is GRANTED. With respect to Petitioner's motion for attorney's fees, Respondent Jeana Michelle Thompson ("Thompson") is ordered to respond on or before September 23, 1999. II. FACTUAL AND PROCEDURAL BACKGROUND 003 Thomas David Friedrich ("the child") was born to Emanuel Friedrich and Jeana Michelle Thompson on December 29, 1989 in Bad Aibling, Federal Republic of Germany, and lived with both parents until their informal separation on July 28, 1991. FN1 On August 1, 1991, without Friedrich's consent, Thompson left Germany with the child, bound for her home town Ironton, Ohio. There, on August 9, 1991, she brought an action for divorce. On August 3, 1991, Mr. Friedrich discovered that Thomas had been removed to the United States. Friedrich sought the return of the child in the German Family Court, and was awarded sole custody of the child on August 22, 1991. Friedrich, seeking the return of his son, filed a petition pursuant to the Hague Convention in the United States District Court for the Southern District of Ohio. Finding that the habitual residence of the child was the United States and that Friedrich had not been exercising his parental tights when the child was taken, the district court denied Friedrich's petition. On January 22, 1993, the United States Court of Appeals for the Sixth Circuit reversed the district court's ruling that the child's habitual residence was the United States, holding that the child was an habitual resident of Germany. Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) ("Friedrich I"). The appellate court remanded the issue of whether Friedrich had been exercising parental rights protected by German law at the time of the child's removal. On remand, the district court held that Friedrich had been exercising parental rights within the meaning of the Convention, and ordered that the child be returned to Germany. However, the court stayed the order pending an appeal by Thompson to the Sixth Circuit. The Sixth Circuit affirmed the district court's order, and the child was returned to Germany. Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) ("Friedrich II"). 004 In Germany, on December 5, 1996, the Court of Appeals in Munich awarded sole custody of the child to Petitioner. Although that court's order made no mention of visitation rights for Respondent, Petitioner verbally agreed to allow the child to visit with his mother. The first visit took place in the summer of 1997 when Respondent came to Bad Aibling, Germany for a period of two weeks. The next visit was in 1998 when the child was permitted to visit for a month with Respondent at her home in the state of Ohio. Both visits took place without incident or concern for the well-being of the child. The last visit, which is the subject of this matter, began when Petitioner placed his son on a flight from Germany to Winston-Salem, North Carolina for a visit that was to last from July 31, 1999 to September 4, 1999. The visit proceeded according to plan until a telephone conversation between Petitioner and Respondent on or about August 16, 1999, in which Respondent informed Petitioner that there may be some problems with the scheduling of the child's return flight on September 4, 1999. Respondent informed Petitioner that the child might be arriving to Germany sooner or later than anticipated. Respondent informed Petitioner that she would call him back to let him know of the changes. By August 31, 1999, Petitioner had not heard from Respondent concerning the changes in the flight arrangements. Petitioner called Respondent's residence several times, but he did not get an answer. When he finally got an answer on September 1, 1999, it was Rocky Thompson, Respondent's husband. Petitioner asked Mr. Thompson to have Respondent call him about the changes in the chfld's ilight so that Petitioner would know when to pick the child up at the airport. Respondent, however, never returned Petitioner's call. Petitioner then called the police in Winston-Salem, North Carolina, to ask them to check on his ex-wife's residence to verify that she and the child were fine and to ask that she call Petitioner. The police confirmed that everything was normal at Respondent's residence and delivered the message for Petitioner. Petitioner contacted the police a second time on September 2, 1999, when he had not heard from Respondent. 005 Instead of responding, Respondent filed a civil custody action in Forsyth County, North Carolina, District Court Division 99 CVD 6586 on September 3, 1999, and thereby obtained temporary custody of the child. That order, which has not been properly served on Petitioner, granted temporary custody to Respondent and prohibited Petitioner from returning the child to Germany without the consent of the State District Court. The State District Court scheduled a hearing on this matter for 9:30 a.m. on September 13, 1999. 005 After receiving a fax copy of the custody order on September 6, 1999, Petitioner filed a second Hague petition for the return of the child with the Central Authority of the Federal Republic of Germany on September 8, 1999. This petition came to the attention of the United States Department of State, which serves as the Office of Children's Issues, and performs the function of the Central Authority of the United States pursuant to the Hague Convention. Hague Convention, art. 6, T.I.A.S. No. 11670, at 5, 1343 U.N.T.S. 49, 99. In a letter dated September 10, 1999, the Central Authority of the United States notified this Court of Petitioner's pending application and further advised the Court of its obligations under the Hague Convention. On September 9, 1999, Petitioner filed the present action before this Court - Motion for Return of Child to Petitioner and Attorney's Fees - in accordance with the Hague Convention. Petitioner also moved for an expedited hearing and requested that the Court, pursuant to Article 16 of the Hague Convention, stay the custody action filed by Respondent in the State District Court, pending the determination of Petitioner's application for return of the child to his custody. Hague Convention, art. 16, T.I.A.S. No. 11670, at 9, 1343 U.N.T.S. 49, 101. The Court received Petitioner's pleadings on Friday, September 10, 1999. As required by  11603(e)(2)(B), Petitioner alleged that less than one year had passed between the date of his petition before this Court and the alleged wrongfull retention of the child by Respondent. Petitioner also alleged that the child was an habitual resident of Germany at all times since the German custody order was entered in 1996. In addition, Petitioner alleged that immediately prior to Respondent's wrongfull retention of the child on September 4, 1999, Petitioner was exercising his custody rights as a parent for the minor child, and that he had not acquiesced or consented to the child being retained by Respondent. Both of these facts are now conceded by Respondent. 006 After due consideration of the facts alleged in the petition, this Court scheduled a hearing for Monday, September 13, 1999 at 9 a.m. in order to determine whether a stay should be entered with respect to the matter filed in State District Court and for determination, if necessary, of Petitioner's petition filed pursuant to the Hague Convention. The Clerk of Court notified counsels for Petitioner and Respondent of the hearing set by this Court. Prior to the opening of the hearing, Respondent filed a response to Petitioner's application. Respondent's response included a copy of the motion filed by Respondent in the State District Court for custody and a signed copy of the order of the State District Court judge granting temporary custody to Respondent. 007 At the beginning of the hearing, this Court inquired of both counsel whether it was necessary for the Court to exercise jurisdiction in this matter since, pursuant to 42 U.S.C.  11603(a), this Court and the State Court had concurrent jurisdiction for proceedings filed under the Hague Convention. Respondent asserted that this Court should abstain from exercising jurisdiction because of the State court action. However, the Court determined that Respondent's Complaint in the State District Court was not a Hague petition, but rather an action for custody of the child. In the state court action, Respondent only made reference to the affirmative defenses under Article 13 of the Hague Convention in order to establish that there had been a change of circumstances warranting a new custody determination by the State District Court. Moreover, based upon persuasive authority cited by Petitioner, the Court determined that the Hague Convention only contemplates petitions filed by custodial parents, since only custodial parents can make the allegation that a wrongful removal or retention has occurred. Fjeldheim v. Fjeldheim, No. 95-CV-394 (W.D.Mich. Jan. 19, 1996). FN2 Therefore, since Petitioner chose to file a Hague petition in federal district court, this Court determined that it had exclusive jurisdiction over the matter for the purposes of the Hague Convention. Accordingly, the Court ordered that the State District Court custody proceeding and the order granting temporary custody to Respondent be stayed pending this Court's determination of the issues raised by the application filed by Petitioner pursuant to the Hague Convention. III. STANDARD OF REVIEW 008 The return of a child who has been removed or retained by one parent, without the consent of the other parent, in a country foreign to the child's habitual residence, is proper where the petitioner establishes that the retention or removal is wrongful, and the respondent fails to establish one of four affirmative defenses available under the Convention. In order to establish that the removal or retention is wrongful, "[the petitioner] must prove by a preponderance of the evidence that (1) [the respondent] removed [the child] from his 'habitual residence,' and (2) [the petitioner] was exercising his parental custody rights over [the child] at the time of removal, or that he would have exercised his rights but for the removal, under the law of the state of [the child's] habitual residence." Friedrich I, 983 F.2d at 1400. Once the petitioner sustains this burden of proof, the respondent must establish (1) by a preponderance of the evidence, that the proceeding was commenced more than one year after the abduction and the child has become settled in its new environment; (2) 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; (3) by clear and convincing evidence, that there is a grave risk that the return of the child would expose the child to physical or psychological harm; or (4) by clear and convincing evidence, that the return of the child would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Friedrich II, 78 F.3d at 1067 (6th Cir. 1996) (citing 42 U.S.C.  11603(e)(2)(A) and (B)). In reviewing such cases, "a court in the abducted-to nation has jurisdiction to decide the merits of an abduction claim, but not the merits of the underlying custody dispute." Id., at 1063 IV. DISCUSSION 009 Foremost in the Court's consideration in this matter is its charge to refrain from deciding the merits of the underlying custody dispute. This was the legal interpretation applied on two previous occasions by the Sixth Circuit to the very parties seeking this Court's judgment in the present case. The Sixth Circuit, in Friedrich II, noted that the Hague Convention and its implementing legislation 42 U.S.C.  11601 "... [are] generally intended to restore the preabduction status quo and to deter parents from crossing borders in search of a more sympathetic court." Friedrich II, 78 F.3d at 1064 (citing Public Notice 957, 51 Fed.Reg. 10494, 10505 (1986)). To the extent that the Respondent's action in State District Court focused on the underlying custody question, this Court was compelled to exercise jurisdiction in this matter to properly consider the issue of wrongful retention under the Hague Convention. 010 Applying the appropriate standard of review to the facts of this case, the Court finds that Petitioner has sustained the burden of proof placed upon him by  11603 of ICARA. Specifically, the Petitioner has established that Respondent removed the child from his habitual residence, and that Petitioner was exercising his custodial rights as conferred upon him by the Federal Republic of Germany at the time of the removal. Respondent concedes the truth of those facts. Thus, the burden falls upon Respondent to establish the existence of one of the four affirmative defenses in order to preclude the Court from ordering the child's return to the custody of the Petitioner in Germany. 011 With respect to the first two of these affirmative defenses, Respondent must show by a preponderance of the evidence (1) that the petition for return of the child was commenced more than one year after the abduction and the child is now settled in his new environment, and (2) that Petitioner was not exercising his custody rights at the time of retention, or had consented to or acquiesced in the retention. Respondent concedes that the first two affirmative defenses are not applicable in light of the facts of this case. First, this is true because the petition in this case was filed within five days of Respondent's retention of the child, well within the one-year requirement of Article 12 of the Hague Convention. Hague Convention, art. 12, T.I.A.S. No. 11670, at 7-8, 1343 U.N.T.S: 49, 100. Second, it is clear in this case that the Petitioner, having only agreed to the child's visit with Respondent from July 31, 1999 to September 4, 1999, did not consent or acquiesce to the retention of the child by Respondent. Therefore, the Court finds that Respondent cannot sustain the burden as to the first or second affirmative defense. 012 Next, this Court must consider whether Respondent has established either the third or fourth affirmative defenses by clear and convincing evidence: (3) that there is a grave risk that her son Thomas' return would result in his exposure to physical or psychological harm or an intolerable situation; or (4) that the return of the child would not be permitted by the fundamental principles of the United States relating to the protection of human rights and fundamental freedoms. 42 U.S.C.  11603(e)(2)(B). Since the latter of these two affirmative defenses has not been asserted by Respondent, this Court will only consider the former. 013 Respondent alleges, in her Reply to Petition and Motion For Return of Child To Petitioner and Attorney's Fees, that Thomas' return to Germany and the custody of his father would expose him to continued physical and verbal abuse by his father. In support of this allegation, Respondent states that on several occasions, "when the Petitioner has flown into uncontrollable rages," Petitioner has struck Thomas "forcefully and angrily" on the back of his head. (Resp. Rep. To Pet. and Mot. For Ret'rn of Child at 8.) She alleges that Petitioner has allowed the child to be burned on his arms and back, the burns appearing to be the result of lit cigarettes. She describes the verbal abuse as continuous criticism and castigation for alleged misconduct. (Id., at 9.) She accuses Petitioner of being unsympathetic to the child's complaints of loneliness and endless taunting by his classmates for being "American." (Id., at 9.) Finally, Respondent alleges that Petitioner has been negligent with respect to attending to Thomas' medical maladies, including migraine headaches, low body weight, and ruptured stomach muscles. (Id., at 10.) 014 Prior to the action presently before this Court, Respondent attempted to prevail on a similar showing that Thomas would face a risk of psychological harm if returned to Petitioner. Before the Sixth Circuit, she argued that the child would suffer psychological harm if separated from his mother. Friedrich II, 78 F3d at 1067. In support of this argument, she offered the testimony of a psychologist who stated that "a whole host of anxious-type behavior" could result, along with "other developmental or emotional restrictions which could include nightmares [and] anti-social behavior." Id., at 1067. Applying the Hague Convention to those allegations, the Friedrich II court stated: "If we are to take the international obligations of American courts with any degree of seriousness, the exception to the Hague Convention for grave harm to the child requires far more than the evidence that Mrs. Friedrich provides." Id., at 1067. 015 With respect to Respondent's allegations of psychological harm presented in the present action, this Court reaches a similar conclusion as did the Sixth Circuit. The only new accusations concern Petitioner's alleged criticizing and lack of empathy for Thomas' loneliness. Although it is beyond the purview of this Court to decide whether the alleged existence of these conditions is in the child's best interests, the Court is required to decide whether they constitute an intolerable situation. In making this decision, the Court is persuaded by the standard articulated by the Department of State in a Public Notice of the Federal Register. Public Notice 957, 51 Fed.Reg. 10494 (1986). The agency noted that Article 13(b) "was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child's best interests. 016 The person opposing the child's return must show that the risk to the child is grave, not merely serious." Id., at 10510. The Court therefore finds that the behavior alleged here, even if taken to be true, would not constitute an intolerable situation as contemplated by the affirmative defenses established in the Hague Convention. 017 With respect to the physical harm to the child, this Court conducted an in camera hearing to ascertain the nature of the alleged abuse. The child confirmed reports that his father struck him on the back of the head on a few occasions to prompt him in the completion of his homework. The Court makes no judgment call as to the appropriateness of such disciplinary action. It was important to the Court, however, that even on such occasions of discipline, there was not an outright and uncontrollable rage as Respondent has alleged. Instead, judging from the accounts given by the child, it appears that his father cares for him and goes about their scheduled recreational activities even after occasions of disciplinary action. It was also significant to the Court that some of the allegations of abuse made by the Respondent were totally unsupported by the evidence. There were no signs that Petitioner allowed the child to suffer cigarette burns, or that Petitioner failed to secure medical treatment for the child's illnesses. The Court's objective consideration of all the evidence presented, including its in camera interview with the minor child, failed to reveal the existence of an intolerable situation or a grave risk of psychological or physical harm facing the child if he were to return to the Petitioner. The Court, therefore, finds that Respondent has failed to show by clear and convincing evidence that the child faces psychological or physical harm upon his return to Petitioner's custody. 018 The final matter to be considered by the Court is the weight, if any, the Court should give to the child's desire to remain in the United States with Respondent rather than return to Germany with Petitioner. Respondent argues that the child's wishes constitute sufficient grounds for not returning him to his father's custody. Article 13 of the Hague Convention states that "the judicial or administrative authority may also refuse to return the child if it finds that the child objects to being returned and has attained an age and degree of maturity in which it is appropriate to take account of its views." Hague Convention, art. 13, T.I.A.S. No. 11670, at 8, 1343 U.N.T.S. 49, 101. The Court was impressed with the ability of the minor child to respond to questions both from the Court and the attorneys during the in camera interview. However, the Court must also take into account that the child is only nine years old, and has undergone a tremendous jostling about between his parents over the course of his young life. One court, upon examination of facts similar to these, decided that the child objection defense of Article 13 should be narrowly construed. In Re Application of Nicholson v. Nicholson, No. 97-1273-JTM, 1997 WL 446432 (D.Kan.July 7, 1997). In Re Nicholson cites evidence that there is a "demonstrated disinclination" on the part of courts to defer to a child's objection as a basis for denying a Hague petition. Id. at *3. (In at least one case, Tahan v. Duquette, 259 N.J.Super. 328, 613 A.2d 486 (1992), a court ruled that the child objection offense does not apply to nine-year-olds.) 019 In the present case, it appears from the Court's in camera hearing that Thomas was prepared by Respondent and her attorney to give specific answers when questioned about whether he wanted to remain with his mother, or return to Germany with his father. Though Respondent may not have engaged in outright coaching of the child, the influence of the mother and other family members, as acknowledged by the child, cannot be overlooked by this Court. Furthermore, the Court finds that the child, at age nine, has not attained the "age or degree of maturity" at which it is appropriate for the Court to take account of his views and defer to his preference for living with his mother. Hague Convention, art. 13, T.I.A.S. No. 11670, at 8, 1343 U.N.T.S. 49, 101. Even taking the minor child's views into account, the Court finds that his preference for living with his mother is not so much an objection to being returned to live with his father as it is a desire to continue his summer vacation with his mother. This Court, like other courts that have considered the child objection defense, chooses not to rest its decision on such a desire. V. CONCLUSION 020 For the reasons enumerated herein, the Court finds that Respondent has failed to sustain her burden of proof with respect to the four affirmative defenses of the Hague Convention. It is therefore required by Article 12 of the Hague Convention that Thomas David Friedrich be returned forthwith to the Republic of Germany with his father, Emanuel Friedrich. Hague Convention, art. 12, T.I.A.S. No. 11670, at 7-8, 1343 U.N.T.S. 49, 100. 021 The Court notes that if Respondent has legitimate concerns about the well-being of the child, she can address those concerns with the German Family Court which has jurisdiction over the underlying custody issues in this matter. The Court finds that there is no indication that the German court is incapable or unwilling to decide any disputes about the adequate care of the child. 022 IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that the minor child, Thomas David Friedrich, shall be returned forthwith to Petitioner Emanuel Friedrich's custody in the Federal Republic of Germany. Petitioner's Counsel has filed an accompanying motion for attorney's fees and expenses incurred in traveling to the United States to litigate this matter. The Court will consider this request after Respondent's counsel has had a reasonable period of time to respond to the motion. It is further ORDERED that Respondent's counsel shall respond to Petitioner's request for attorney's' fees on or before September 23, 1999. FN3 This the 26th day of November, 1999 /s/ James Beaty ______________________________ United States District Judge Footnotes --------------------- 1. At the time of the child's birth, Jeana Michelle Thompson was known as Jeana Michelle Friedrich. She has since remarried, and is now Jeana Michelle Thompson. 2. In Fjeldheim, the United States District Court for the Western District of Michigan held that a state court had not properly exercised jurisdiction in entering a judgment under the Hague Convention in favor of the respondent since the action had been brought by the respondent, the same party accused of wrongfully retaining the child in question. The district court reasoned that since the Hague Convention and ICARA are worded in such a way as to address remedies for the "petitioner" or "applicant," and the spirit of the law is to protect the parent who has been wrongfully deprived of custody of a child, then it follows that the petitioner must be the aggrieved custodial parent. Accordingly, the custodial parent was the only party who could appropriately file a petition pursuant to the Hague Convention, and could choose state or federal court as a forum. 3.0 The Court rendered its finding of fact and conclusion of law in open court on September 13, 1999. The present written Order and Judgment and Memorandum Opinion are being added for the purpose of completing the Court's record of this matter.