Rosenlehner and Rosenlehner (Virginia 1996) Cir.Ct. of Fairfax County Chancery No 138588 ================================================================= VIRGINIA IN THE CIRCUIT COURT OF FAIRFAX COUNTY MARCUS ROSENLEHNER : : Complainant/Cross : Defendant, : : vs. : CHANCERY NO. 138588 : BEATRICE PETZ ROSENLEHNER : : Defendant/Cross : Complainant FINAL ORDER FOR THE RETURN OF CHILD TO GERMANY UNDER THE 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTIONS THIS CAUSE CAME ON to be heard on this date for entry of a Final Order, pursuant to proper notice to all parties; upon the cause of action in the "Cross-Bill Petition For The Prompt Return of Child from the United States to Mother in Germany," filed by Beatrice P. Rosenlehner, the Defendant/Cross-Complainant herein (originally on August 21, 1995 in the Juvenile and Domestic Relations Court of Fairfax County, Virginia) pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereinafter "the Hague Convention"), T.I.A.S. 11610, reprinted at 19 I.L.M. 1501 (1980), and its U.S. implementing statute, the International Child Abduction Remedies Act (hereinafter "the ICARA"), Public law No. 100-300, 42 U.S.C. . 11601-11610; upon the Answer to the Cross-Bill filed herein by the Complainant/Cross-Defendant, Marcus Rosenlehner; upon the Amended Motion of the Defendant/Cross-Complainant, Beatrice Petz Rosenlehner, to Compel Father to comply with the terms of the Munich (Germany) Family Court's Order of October 19, 1995; upon the Answer to the Amended Motion filed herein by the Complainant/cross-Defendant, Marcus Rosenlehner; upon hearing the evidence and testimony of the parties and their witnesses, ore tenus, on December 20 and 21, 1995, on the merits, at which both parties were represented by separate counsel; upon argument of counsel at such time; upon the order for leave of court entered May 17, 1996, granting Martin A. Cannon and the law firm of Cannon, Cottrell & Ward to withdraw as counsel of record for the Complainant/Cross-Defendant, Marcus Rosenlehner, and no new counsel of record having since appeared on his behalf; and in consideration whereof, the Court makes the following Findings and Orders of the Court. FINDINGS 1. The Hague Convention is in force in the United States of America (the United States) and in the Federal Republic of Germany (Germany), and it is the law of the land in the United States of America under the "Supremacy Clause" of the United States Constitution, Article VI. 2. The Courts of the States and U.S. District Courts have concurrent jurisdiction of actions arising under the Hague Convention pursuant to 4 of ICARA (42 U.S.C. 11603(a)). This Court therefore, has jurisdiction to hear this matter as a Court of one of the constituent states of the United States of America. Venue lies with this Court by virtue of the child in question being located in Fairfax County, Virginia, at the time this action was commenced. 3. The Order of September 8, 1995, scheduled a hearing on both the Defendant/Cross-Complainant's Petition under the Hague Convention and the Complainant/Cross-Defendant's Petition for custody of the minor child, on December 20 and 21, 1995, but that, pursuant further to this Court's Order of December 8, 1995, the two matters were bifurcated so that the hearing on Complainant/Cross-Defendant's request for permanent custody wars postponed until after this Court had ruled on Defendant/Cross-Complainant's Petition for return of the child pursuant to the Hague Convention. WMHFN01 4. The parties hereto were married on May 11, 1989, in Munich, Germany, and there was one child born of this marriage, to-wit: JULIAN ALEXANDER ROSENLEHNER, born February 4, 1990, in Germany. 5. The child in question in this case, Julian Alexander Rosenlehner, has been living with Marcus Rosenlehner at 5847 Aspen Wood Court, McLean, Fairfax County, Virginia since on or about August 4, 1994. 6. The parties are both German nationals. Marcus Rosenlehner, the child's father, lives in Fairfax County, Virginia in the United States, and Beatrice P. Rosenlehner, the child's Bother, lives in Munich, the State of Bavaria, Germany 7. Beatrice P. Rosenlehner resided in Germany at the time she applied for the return of the child to Germany, to the German Central Authority under the Hague Convention, and she still resides in Germany at this time. 8. Marcus Rosenlehner resided in the United States of America at the time of Beatrice P. Rosenlehner's said application to the Central Authority of Germany, and he still is located in the United States at this time. 9. At all pertinent times herein Beatrice P. Rosenlehner resided in Germany and Marcus Rosenlehner resided in the United States. 10. Both parties and their said child were born and raised in Germany and have resided in Germany during their entire lives, except that for the period from May 1, 1994 to the present, Marcus Rosenlehner lived in the United States, and that the child has lived WMHFN02 in the United States singe August 4, 1994. 11. Marcus Rosenlehner came to the United States on or about May 1, 1994, and on or about August 4, 1994, Beatrice P. Rosenlehner brought the minor child to the United States to visit with Marcus Rosenlehner, and thereafter Marcus Rosenlehner refused to allow the child to be returned to Germany in compliance with the arrangement for Beatrice P. Rosenlehner to come and pick up the child in or about January 1995, alleging that the child did not want to go and that he did not believe that Beatrice P. Rosenlehner's circumstances were appropriate for the child. 12. The Court finds that Beatrice Petz Rosenlehner met her burden of proving by a preponderance of the evidence, as required by 4(a) of ICARA, WMHFN3 that Marcus Rosenlehner wrongfully retained Julian Alexander Rosenlehner in the United States since in or about the month of January 1995, within the meaning of Articles 3 and 4 of the Hague Convention, and as was also duly determined under the laws of Germany by the Munich District Court, Munich, Germany, on May 11, 1995, a competent court to render such ruling. WMHFN4 13. The Court finds that said retention was wrongful because it was in breach of Beatrice Petz Rosenlehner's custody rights under the law of Germany, as determined by the said Munich District Court, which found the child to have been habitually resident immediately before the retention, said custody rights having been actually exercised or would have been exercised but for said retention, within the meaning of said Articles 3 and 4 of the Hague Convention. 14. The Court finds that Beatrice Petz Rosenlehner meet her burden, as required by 4(e) WMHFN05 of the ICARA, of proving by a preponderance of the evidence that the child's habitual residence was in Germany, within the meaning of Article 3 of the Hague Convention. 15. The Court finds that Marcus Rosenlehner failed to meet his burden of proving by a preponderance of the evidence, as required by 4(e) WMHFN06 of ICARA, that Beatrice Petz Rosenlehner had consented to or subsequently acquiesced in said retention, nor had she waived any rights to custody, within the meaning of Article 13 of the Hague Convention. 16. The Munich Family Court issued an Order on May 11, 1995, after a hearing that Marcus Rosenlehner's retention of the minor child in Fairfax County, Virginia was wrongful under the Hague Convention. WMHFN07 17. The said Order of May 11, 1995, was apparently obtained without notice to Marcus Rosenlehner of the proceeding, nor did he make any appearance in said case, and that notice of the Munich Family court's decision was received by Marcus Rosenlehner until after the Order had become final and the time he could appeal said Order. WMHFN08 18. In July 1995, pursuant to the Order issued on May 11, 1995, by the Munich Family Court, Marcus Rosenlehner was arrested while in Munich, Germany. Through those proceedings and subsequent to his arrest, he was given notice that a temporary custody hearing was scheduled to be held in Munich, Germany, on October 19, 1995, and Marcus Rosenlehner failed to appear at the hearing, but was represented by counsel. 19. Following the hearing held an October 19, 1995, the Munich Family Court, a court of competent jurisdiction, issued a further Order finding that Marcus Rosenlehner's retention of the child in the United States was wrongful under the Hague Convention and awarded temporary custody of the child to Beatrice P. Rosenlehner. Thereafter, based on the October 19, 1995 decision of the German court, Beatrice P. Rosenlehner filed an Amended Motion in the case at bar on December 6, 1995, to compel Marcus Rosenlehner to turn over the child pursuant to the German court's said Order of October 19, 1995. 20. The Court finds that Marcus Rosenlehner failed to meet his burden of proving by a preponderance of the evidence, as required by 4(e) of ICARA WMHFN09, that Beatrice P. Rosenlehner did not timely file her Petition for the return of the child within one year from the date of the wrongful retention within the meaning of its Article 12 of the Hague Convention; and, the Court does affirmatively find that Beatrice P. Rosenlehner did timely file the said Petition. WMHFN10 21. The child in question, Julian Alexander Rosenlehner, was four years and eleven months of age at the time of the said wrongful retention, was five years and ten months of age at the time of this Court's hearing and rulings on December 21, 1995, and will not be sixteen (16) years of age until February 4, 2006. 22. Although Julian Alexander Rosenlehner may have expressed an objection to being returned to Germany, he has not attained an age and degree of maturity at which it is appropriate to take account of his views within the meaning of Article 13 of the Convention. 23. The gravamen of this case under the Hague Convention is not what may be in the best interest of the child of the parties, but whether the child should be returned to its country of habitual residence for any proceedings on custody to determine what would be in the child's best interest. WMHFN11 24. While the Court finds that Julian Alexander Rosenlehner could be exposed to psychological harm if he were to be returned to his mother's care for the reasons set forth in the Court's opinion letter attached, the child, nonetheless, should be returned to Germany. The evidence before the Court does not establish by clear and convincing evidence, as required by Article 4 of ICARA, WMHFN12 that there is a grave risk that the child would suffer psychological harm if the child were to be returned to the jurisdiction of the German courts, which could investigate Mr. Rosenlehner's allegations and make appropriate orders. WMHFN13 25. The Court finds that all Court Orders in Germany regarding Julian A. Rosenlehner have favored Beatrice Petz Rosenlehner, including three orders of custody to her, and while not determinative in the case at bar, said orders should be given due weight in applying the Hague Convention, as permitted by Article 17 thereof. WMHFN14 26. The Court finds in the case at bar that the Court must recognize the underlying purpose and philosophy of the Hague Convention, which requires that a child who has been wrongfully retained in a signatory country should be returned to the signatory country of the child's habitual residence for any proceedings regarding child custody, except only where certain defenses under Article 13 have been established by the proof required under 4(e) of ICARA WMHFN15. 27. The introductory paragraph of Article 13 of the Hague Convention provides that the competent authority (the Circuit Court of Fairfax County, Virginia in the case at bar) is merely "not bound to order the return of the child" if satisfactory proof of a competent defense is established. However, even If such proof of a defense were to be established, the effect of said language is that it does not prevent the Court from returning the child, nevertheless, so long as the return would otherwise be required under the Convention, which requirement has been so found by this Court. WMHFN16 28. The defense under Article 13(b) dealing with the grave risk of physical or psychological harm if the child were returned to its country of habitual residence relates to the social and political conditions in that country and not to the circumstances of the parent to whom the child is sought to be returned. In the absence of such dangerous conditions in the country of habitual residence, the return of the child ought to be carried out so that courts in that country can determine custodial issues. WMHFN17 29. The existing social political conditions in Germany are stable and not intolerable, nor do they present a grave risk to the child. Germany has a competent court and legal system and social service net, and a mechanism for dealing with the kinds of custodial issues involved in this case, and can provide appropriate protection for the child of the parties herein. 30. Consistent with the philosophy of the Hague Convention, the Uniform Child Custody Jurisdiction Act (as codified by the State of Virginia), and the ICARA federal legislation, the circumstances presented in this case dictate that the German courts should assume jurisdiction over the determination of the custody of Julian A. Rosenlehner, and not the Courts of the United States. 31. The Court affirmatively finds that all of the requirements for invoking the enforcement powers of this Court under both the Hague Convention and ICARA for the return of the parties' child, Julian Alexander Rosenlehner, to Germany, have been fully satisfied, and accordingly, Julian Alexander Rosenlehner, ought to be promptly returned to Germany. 32. The Court finds that the reasonable legal fees and costs incurred by Beatrice P. Rosenlehner in the Hague Conventions portion of the case at bar are $42,540.00, and that upon weighing the equities, $4800 ought to be paid by Marcus Rosenlehner to Beatrice P. Rosenlehner and her Counsel, Philip Schwartz, Schwartz and Ellis, Ltd., pursuant to Article 20 of the Hague Convention and Section 6 of the ICARA. WMHFN18 ORDERS WHEREFORE, in consideration of the aforesaid Findings, it is accordingly ADJUDGED, ORDERED and DECREED that: A. The Court's opinion of December 21, L99S, transcribed and attached hereto, is hereby incorporated herein and made a part of this Order by reference. WMHFN19 B. In accordance with the finding that all of the requirements have been fully satisfied for invoking the enforcement powers of this Court under both the 1980 Hague Convention on the Civil Aspects of International Child Abductions and under the federal implementing act, the International Child Abduction Remedies Act, Marcus Rosenlehner is hereby directed to return the parties' child, Julian Alexander Rosenlehner, born on February 4, l99O, to Munich, Germany, at his sole expense, to the care of his mother, Beatrice P. Rosenlehner, for proceedings in the Munich courts regarding the child's custody and that he shall report such return to the German Central Authority in Berlin designated by Germany B-1. Based upon the representations of counsel, the court finds that this order has been complied with in that the child was returned to Germany on June 8, 1996. The child shall not be removed from the jurisdiction of the German Courts without permission of the German Courts. C. This order is not a determination of the merits of any custody issues within the meaning of Article 19 of the Hague Convention and nothing herein shall be so construed. D. Marcus Rosenlehner is hereby ordered to pay the sum of $4800 to Beatrice P. Rosenlehner and her Counsel as and for Beatrice Petz Rosenlehner's Counsel fees and costs incurred in the Hague Convention part of the above case, on or before Sept 1, 1996. E. This Order of the Court is made under and pursuant to the authority granted it under 4(a) of ICARA [42 U.S.C. 11603(a)], conferring original and concurrent jurisdiction on both state courts and U.S. district courts to hear cases under the Hague Convention. H. The parties shall each be provided forthwith with certified copies hereof in such number as they may request, subject to any fees charged by the Clerk of the Circuit Court of Fairfax County, Virginia. ENTERED THIS 14th day of June, 1996. /s/ Richard J. Jamvorsky _______________________________ RICHARD JAMVORSKY, JUDGE SEEN AND AGREED TO, except that Defendant/Cross-Complainant objects to the finding in paragraph 17 and the finding in the first sentence in paragraph 25 that the child could be exposed to psychological harm if he were returned to his mother's care and order on the amount of $4800 in attorney fees and costs. By: /s/ Philip Schwartz ___________________________ Philip Schwartz, VSB #8038 John S. Petrillo, VSB #35537 6950 North Fairfax Drive Arlington, Virginia 22213 TEL: (703) 532-9300 Counsel for Defendant/Cross-Complainant SEEN AND OBJECTED TO: Laurnda L. Hicks, VSB #29632 Counsel for Rosenlehner, Marcus ______________________________ Marcus Rosenlehner 5847 Aspen Wood Court McLean, Virginia 22101 Tel: (7030 536-1702 Complainant/Cross-Defendant Footnotes are from William M. Hilton, CFLS -------------------- 1. WMH PRACTICE NOTE: In a letter dated 15 Oct 1996 from Philip Schwartz, Esq., counsel for the mother, he states the following: "The father filed suit first in the Circuit Court of Fairfax County for divorce, custody, etc. I promptly filed a separate action under the Hague Convention in the Fairfax Juvenile and Domestic Relations Court. I always file in that court in Virginia, which has jurisdiction over children's matters that are not connected to a divorce case. Opposing counsel argued to the latter Court, no matter what decision it makes, that it would be appealed to the Circuit Court resulting in the case being litigated twice, that the final order would be delayed and it would more that double the cost. He was right, but the Judge transferred the Hague case to the Circuit Court for consolidation with the divorce and custody case. However, I then was able to convince the Circuit Court to bifurcate the Hague CAse for hearing first because, should I prevail, the child would be returned to Germany and thus the custody case would be mooted. It would have been ridiculous to go to the expense of putting on a five day custody trial with multiple experts simultaneously with the Hague trial." While the Court, in this instance, properly bifurcated these issues, it is usually the better practice to file an action under The Convention as a separate case, as was done here, since, when there are two actions, e.g., one for custody of the child and the other under The Convention, one should strongly resist any efforts to consolidate the two since this is but the first step on the road to perdition (best interests hearing). One must constantly remind the court that a hearing under The Convention IS NOT a custody proceeding. Notwithstanding the consolidation, Counsel for the mother properly reminded the trial court of this point and the Hague case was heard first, as it must be. 2. More properly one should say that the child was physically present in the United States. The use of the words "lived in" could lead one to believe that the child's "Habitual Residence" was the United States. 3. This probably should be 4(e) of ICARA, 42 U.S.C. 11603(e). 4. See Art. 15 of The Convention. 5. 42 U.S.C. 11603(e) 6. 42 U.S.C. 11603(e) 7. See Art. 15 of The Convention 8. See 42 U.S.C. 11603(c): NOTICE. This section requires that notice in a proceeding under The Convention be given as in an interstate custody proceeding. The general section under the Uniform Child Custody Jurisdiction Act (UCCJA) are Sections 4 and 5, which vary from state to state but are at least ten (10) days. Query whether such notice is needed in this case since the language of Art. 15, which authroizes such a finding, is devoid of any requriement for notice. 9. 42 U.S.C. 11603(e) 10. This decision does not state when the Mother filed her action under The Convention. It should also be noted that even if the Petition under The Convention is filed more than one (1) year after the wrongful act (removal or retention), th is does not mean that the court does not return the child but only that, assuming there is a finding on behalf of the Respodent that the child is now "settled in its new environment", the duty to return is discretionary. One should argue in cases where such a finding has been made that the court must now hear arguments on which forum is the most convenient to hear best interests issues. 11. This point is well taken and must be constantly brought to the court's attention during a proceeding. 12. 42 U.S.C. 11603(e)(2)(A) 13. See paragraphs 28 and 29 of this decision. 14. This is an interesting and questionable finding by the Court. Art. 17 refesrs to custody decisions made in the requested state, here Virginia. Further Arts. 18 and 29 and 42 U.S.C. 11603(h) state that The Convention shall not limit the Petitioner's efforts under any other law to cause the return of the child. 15. 42 U.S.C. 11603(e) 16. See WMHFN10 17. See Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060, available on Hilton House BBS as FREDRCH3.FED. 18. This finding of the court is questionable, as to the limitation it placed on the fees. The language of 42 U.S.C. 11607(b)(3) states that the court ". . . shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees . . .". Here the court finds that $42,540.00 was reasonable but disallows all but $4800.00. See also Application of Heyer (Fulton Co.Ct.1983) 119 Misc.2d 159 [463 N.Y.S.2d 159, 160-161] where ability to pay was not considered under the UCCJA. 19. A copy was not supplied with this decision.