Von Wussow-Rowan v Rowan (E.D. Pennsylvania 1998) Civil Action No Civ.A.98-3641 14 International Abduction [US 1998] =========================================================== Mary Alexandra VON WUSSOW-ROWAN v David A. ROWAN No. CIV.A.98-3641. United States District Court, E.D. Pennsylvania. 06 Aug 1998 MEMORANDUM AND ORDER 001 The Hague Convention on the Civil Aspects of International Child Abduction ("Convention"), implemented by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C.  11601 et seq., went into effect in this country in 1988. Invoking the Convention and the ICARA Mary Alexandra Von Wussow-Rowan ("petitioner") seeks an order from this Court requiring her estranged husband, David A. Rowan ("respondent") to return their three-year-old child, Simon Rowan, to Switzerland, where petitioner now resides. The facts are complex, and the legal issues difficult. I. History 002 Petitioner is a citizen of Switzerland, born of German parents who now reside in Spain, She is an a attorney by profession. Respondent, an American citizen residing in Pennsylvania, is a musician. The parties first met in 1994, at a drug rehabilitation center in Florida, where both were undergoing treatment for heroin addiction. They were married on March 18, 1995, in Florida. Their son, Simon, was born on June 20, 1995 in Philadelphia. According to respondent's counsel (not specifically refuted by petitioner's counsel), Simon was addicted to heroin at birth, as a result of his mother's addiction, which allegedly continued until at least 1996. Respondent, not to be outdone, has an extensive history of alcohol abuse and cocaine addiction. He has undergone, and is still involved in, treatment for these problems, and claims to have been "clean" for at least the past year. 003 Petitioner and respondent resided together in Philadelphia from December 1994 until August 16, 1997, when petitioner, with respondent's consent, took their child on a trip to Europe, to. visit her parents in Spain, and other relatives and friends in Switzerland. Shortly after arriving in Europe, the petitioner informed respondent by letter that she did not intend to return to the United States, having instituted a divorce action in a Swiss court. 004 Respondent then filed an application for the return of the child, in the Tutelary Court in Switzerland, invoking the Convention. The trial court refused to order the child's return to the United States, and that ruling was upheld in an intermediate court of appeal. Petitioner appealed to the highest court in Switzerland but, through a subterfuge, managed to spirit the child out of the country and back to Philadelphia. Upon learning that the child was no longer in Switzerland, the Swiss appellate court declined to entertain the appeal, and dismissed the action. 005 Meanwhile, back in Pennsylvania, respondent had been busy litigating for custody of the child. Immediately upon learning that his wife intended to remain in Europe, respondent filed an emergency application for temporary custody of the child, in the Court of Common Pleas of Philadelphia County. On October 8, 1997, that court, per the Honorable Edward E. Russell, granted temporary custody to respondent, ex parte, and scheduled a hearing for permanent custody for October 17, 1997. That hearing was postponed, because respondent had not been able to make service of process upon petitioner. Service was achieved on or about November 7, 1997, and the hearing was scheduled for November 13, 1997. On November 13th, an attorney representing petitioner appeared and obtained a postponement until November 20, 1997, so that petitioner could appear. 006 Petitioner did not appear on November 20th either. On that date, the Honorable Nicholas Kozay entered an order awarding permanent custody of Simon to the respondent, and also imposing a $1,500 fine on petitioner for her non-appearance. 007 On or about December 4, 1997, petitioner appealed from Judge Kozay's order. Unfortunately, the appeal has not yet been docketed in the Superior Court of Pennsylvania, because Judge Kozay completely retired from the bench shortly after entering the custody order, and Superior Court rules require an opinion from the lower court before an appeal will be docketed. Petitioner's counsel have made repeated efforts to resolve this procedural impasse--including an application to the Supreme Court of Pennsylvania. On March 30, 1998, the Supreme Court of Pennsylvania granted petitioner's application for a stay of Judge Kozay's custody order. On May 28, 1998, respondent returned to Philadelphia with Simon. Respondent then applied to the Supreme Court of Pennsylvania for an injunction to preclude petitioner from removing the child from Pennsylvania. On June 16, 1998, by an order without opinion, the Pennsylvania Supreme Court (1) dismissed respondent's application for an injunction, without prejudice; and (2) dissolved the stay of Judge Kozay's custody order. 008 Additional events in the Swiss courts should also be mentioned. Petitioner's application for a divorce included an application for custody of Simon. The trial court entered an order of dismissal for lack of jurisdiction. Petitioner appealed that decision to the Court of Justice of Geneva. On or about July 9, 1998, that court ruled that the Swiss courts do have jurisdiction to resolve the custody dispute, and entered an order granting temporary custody of Simon to petitioner. Under Swiss law, however, that order is not yet enforceable, since the appeal period will not expire until September 14, 1999. If respondent appeals, the order would remain unenforceable during the pendency of the appeal. If respondent does not appeal, the Swiss court proposes to hold a hearing on September 14, 1998, but counsel have not yet obtained clarification as to the scope of any such hearing. II. Legal Issues 009 The Convention mandates that, when a child is wrongfully removed from his country of "habitual residence" the courts of the receiving state "shall" order the return of the child to his place of habitual residence unless the person opposing return proves that "(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." And, under the ICARA the burden of proof is on the objector to prove that exception by clear and convincing evidence. Respondent argues that the Tutelary Courts decision denying his application to have Simon returned under the Convention should not be granted full faith and credit, because, although the Tutelary Court correctly found that Simon's habitual residence was in the United States, and that his removal to Switzerland was wrongful, it committed manifest error in refusing to return Simon to the United States, as mandated by the Convention. Respondent points out that the court made no specific finding of fact with regard to any supposed "grave danger"; that there was no evidence to support any finding of grave danger to Simon if he were to be returned to the United States; and that a mere conclusory statement does not satisfy the strict requirements of the Article 13(b) exception. Respondent finds much support for this argument in the reported decisions of the courts of the United States on this subject. As noted in the case of Friedrich v. Friedrich (6th Cir. 19961) 78 F.3d 1060, the "grave danger" exception in Article 13(b) is intended to apply only where the country of habitual residence is a war zone, or suffering famine or pestilence or other chaotic conditions. Under the Convention, a court is not permitted to frustrate the scheme of the Convention by relying merely on factors which would be appropriate if custody issues were being addressed. 010 It is therefore at least arguable that the Tutelary Court's decision would not be entitled to full faith and credit because that court plainly did not have jurisdiction to resolve custody issues, yet that is precisely what it actually did, under the guise of Article 13(b). 011 I need not resolve that issue, however, in view of the recent action of the Swiss Federal Court, which concluded that, since Simon was no longer in Switzerland and had been returned to the United States, respondent's application to the Swiss courts to order his return had become moot ("the appeal is without object and the case is dismissed"). It should be noted that Article 12 of the Convention provides: "Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another state, it may stay the proceedings or dismiss the application for the return of the child." (emphasis supplied) 012 To extend full faith and credit to the judgments of other courts means simply that such judgments must be given the same effect they would have in the jurisdiction where rendered. The federal court (the highest appellate court in this instance) did not affirm the decisions of the lower courts; it dismissed the entire action -- presumably in accordance with Article 12 of the Convention. Moreover, even if it were otherwise, and the judgment of the lower courts had been affirmed, that judgment merely establishes that the respondent was not entitled, under the Convention, to have the Swiss courts order Simon's return to the United States. This Court is not being asked to order Simon's return to the United States. 013 Under the terms of the Convention, it is wrong to remove a child from his place of habitual residence. It is by no means clear, however, that it is wrong for a parent to use selfhelp in returning the child to his place of usual residence. Thus, an essential predicate for the present application seems to be lacking. Moreover, the "clean hands" doctrine militates against granting the present application. III. The Remedy 014 This Court does not have jurisdiction to resolve custody disputes. But the Convention and the implementing statute do, in my view, confer upon this Court an obligation to see to it that custody disputes are resolved by the appropriate court, on their merits, and on a level playing field. Neither Party has thus far shown an inclination to face the custody issue realistically or fairly. A father should not be denied custody of his three year old son merely because, two years ago, he had a drinking problem and was involved in an alcohol-related automobile accident (not involving the child). A mother should not be deprived of custody of her three year old son because she refused to travel to Philadelphia from Switzerland. Child-custody should not be resolved by default judgments. 015 I therefore propose to stay this action for a period of 90 days. If, within that period (which may be extended by this Court for cause shown), petitioner shall have caused the permanent custody order entered by Judge Kozay to be vacated, and shall have arranged to have all custody issues concerning Simon resolved at a full and fair hearing in the Court of Common Pleas of Philadelphia County, with the benefit of appropriate evaluations of both parents with regard to their fitness for obtaining custody, and a full and fair consideration of the best interests of the child; and if respondent shall grant reasonable visitation rights to petitioner in the interim, this Court will, absent additional evidentiary developments pertinent to this case, then dismiss the present petition. An Order follows. ORDER AND NOW, this 6th day of August, 1998, IT IS ORDERED: That a further proceedings in this case are STAYED, for a period of 90 days, on the terms and conditions set forth in the accompanying memorandum. =========================================================== COMMENTS BY William M. HILTON Attorney At Law Box 269, Santa Clara, CA 95052-0269 TEL: 408-246-8511 FAX: 408-246-0114 E-Mail: hilton34@hiltonhouse.com I have begun a previous COMMENT with the following quote: "If we were screenwriters drafting a script based on the history of Polanski's conviction and flight from punishment, incorporating the civil and criminal aspects of his actions, we would surely create a scenario where all the characters get their "just deserts" without regard to the protective safeguards of the Constitution. However, as jurists, we are bound by constitutional principles and must apply them evenhandedly, regardless of our personal opinions of any of the litigants." Doe v. Superior Court (Cal.App. 2 Dist 1 Div 1990) 222 Cal.App.3d 1406, 1411 I next turn to the preamble of The Convention: "Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally 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, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions--" Then we have the following words from Paragraph 34 of the Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. Ill, 1980, p. 426 (Perez-Vera Report): "In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them - those of the child's habitual residence - are in principle best placed to decide upon questions of custody and access." The issue of removal of a child from a Contracting State while the courts of that state were seized with the action was discussed in Re: "O" (Minors) [UK 1997]; High Court of Justice, Family Division, 30 May 1997; 3 International Abduction [UK 1997]. In this case the children were wrongfully removed from California to Sweden. The father brought an action in Sweden for the return of the children and, as in this case, the Swedish courts found that there was an Art. 13(b) exception. The father then appealed this to a higher Swedish Court. After the matter had been heard but before the decision was reached, the father removed the children from Sweden and was on his way back to the United States, passing through London, where he was intercepted by the British Authorities. The High Court of Justice, in order that the children were to be returned to Sweden to await the final outcome of the Swedish Court, held the following: "029 But, in my judgment, all these submissions overlook two fundamental points. The first is that one of the fundamental purposes of the Convention and its mechanisms in to prevent, by deterring, international child abduction. The preamble to the Convention refers to ''The States signatory to the present Convention ... desiring to protect children internationally 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 ... [I underline and emphasize the word "and"]. Thus, ensuring prompt return of children to the State of their habitual residence is one of the objectives of the Convention, in conjunction with the important overall objective of desiring to protect children from the harmful effects of their wrongful removal or retention. As the Explanatory Report by Elisa Perez-Vera issued by the Hague Conference itself in 1982 and frequently referred to by the courts, not only of England but of many other Contracting States, makes clear at paragraphs 16 to 19 ". . . effective respect for rights of custody and of access belongs on the preventive level, insofar as it must lead to the disappearance of one of the most frequent causes of child abductions". 030 Thus, one objective of the Convention is to provide an effective mechanism for the prompt return of children through administrative and judicial procedures so that people in the position of the father in this case do not resort to self-help and secondary abduction. In my judgment, it would run quite counter to this objective if a parent, who had failed to procure the return of his child from one Contracting State, could successfully obtain a re-run of his application by himself abducting the child to or via another Contracting State. 031 The second fundamental point is that the machinery of the Convention, read as a whole, essentially contemplates a summary procedure to be operated once only. In particular Article 16 provides that the judicial or administrative authorities of the State to which the child has been removed or in which it has been retained, shall not decide on the merits of rights of custody "until it has been determined that the child is not to be returned under this Convention". Thus, if a child is abducted to England and, within proceedings under the Convention, the court decides that, because of the discretions under Article 13, it should not be summarily returned, the force of the Convention insofar an it relates to summary return in then spent. There cannot be second or subsequent applications under the Convention. 032 In my judgment, that principle and approach must apply no less forcefully just because the summary procedure under the Convention has taken place in another Contracting State. I can no more sit "on appeal" from the decision of the County Court in Sweden in thin case (whose decision and order at this moment remains in existence) than I could if an earlier decision not to return the children had been made in proceedings here. 033 Even when a court is exercising a statutory jurisdiction and duty, as I am under the Child Abduction and Custody Act 1985, there is a discretion to decline to exercise the jurisdiction; for example, when a court stays proceedings on the principal of forum non conveniens. I stress that I do not regard the principle of forum non conveniens as having any direct application whatsoever to the present case or, indeed, to proceedings under the Convention generally; nor do I regard myself as exercising a power to "stay" in the conventional sense the father's application under the Child Abduction and Custody Act and the Convention. Nevertheless, the existence of that inherent power in other types of legal proceedings, including proceedings for the exercise of a statutory jurisdiction and duty, fortifies me in the view that I can, and should, decline to entertain on its merits the application under the Convention for the return of these children to America. 034 I stress that I am declining even to entertain the application under the Convention on its merits. I am not hearing it on its merits. I do not have, and do not wish to express or imply, any view as to whether or not within the Swedish proceedings and the current Swedish appeal the children should be returned to America. In my judgment that is a matter within the exclusive province of the Swedish appeal court, which is, even now, considering its decision 035 For those reasons, I intend to exercise an inherent jurisdiction and discretion not to entertain the father's application under the Hague Convention. A reading of the above does not indicate, as this court holds, that "selfhelp" is one of permitted remedies under The Convention and in fact such "selfhelp" must be discouraged.