Child Abduction - Hague Convention - Presumption of Joint Custody
A German court order setting out a divorced father's visitation rights and child support obligation did not modify his presumed right to joint custody under German law, and thus was not grounds for denying his petition for his child's return after she was taken to the United States by her mother without his consent,the U.S. Court of Appeals for the Fourth Circuit held in Bader v. Kramer, 4th Cir., No. 05-1480, 4/17/06).
Pointing out that no German court had ever entered an order granting the mother sole custody, the court said that the father retained at least joint custody rights and was entitled to proceed with his petition under the Hague Convention on Civil Aspects of International Child Abduction (
The father and mother were married in Germany, and their child was born there in 1999. They separated in 2000 and the child remained with the mother. Later that year the father, who was employed at a U.S. Army Munitions Depot, was convicted and imprisoned for the unauthorized transfer of war weapons.
The parents divorced in June 2002 and the father was released from prison five months later. In January 2003, the mother (with whom the child resided) filed a petition in a German court seeking sole custody. The father also petitioned for sole custody. On March 20, 2003, the German court set out a visitation schedule for the father and granted child support to the mother.
On April 4, 2003, the mother removed the child from Germany to the U.S. without the father's knowledge or consent. He filed another petition for sole custody in the German court and filed a request with the German Central Authority for Return of Child under the Hague Convention. In November 2003, the German Central Authority sent a letter to the U.S. Central Authority stating that when the parents divorced, "no decision about the rights of custody was issued. So both still have parental responsibility for the child pursuant to" the German Civil Code provision on joint custody.
The German court granted the father sole custody the following month. He then filed a petition in U.S. district court for the child's return pursuant to the Hague Convention. In a letter to the father's attorney, the mother stated that the father "was authorized visitation/custody rights (which he rarely exercised)." The mother later testified that at the time she left Germany with the child, she and the father "shared joint custody" and that she was "disappointed" with the provisions of the March 20, 2003, German court order.
The district court recognized that German law presumptively confers joint custody upon both parents until a competent court enters a contrary order. It then concluded that the March 20, 2003, order by the German court setting forth a visitation schedule "functioned to alter the presumption of joint custody." It thus denied the father's petition.
Rights of Custody
Judge Dennis W. Shedd reversed, holding that the district court erred in concluding that the father no longer retained sufficient rights of custody within the meaning of the Hague Convention.
Shedd noted that in Fawcett v. McRoberts, 326 F.3d 491, 29 FLR 1291 (4th Cir. 2003), the court had addressed a somewhat similar question--whether a Scottish divorce court's "residence order" had modified a parent's right to custody. In holding that it did, Fawcett found that the order gave one parent "the exclusive power to determine [the child's] residence, thereby necessarily depriving [the other parent] of that same right." Id. at 499. (Fawcett also cited a Scottish case providing that a parent loses "rights of custody" if the other parent is awarded a residence order.) Although Scottish law prohibited the abducting parent from removing the child from Scotland--the equivalent of a ne exeat clause--Fawcett found that the law merely allowed "a parent with access rights to impose a limitation on the custodial parent's right to expatriate the child. ... This hardly amounts to a right of custody." Id. at 500.
Never Modified
Explaining that not withstanding the ability to limit the expatriation of his child, the petitioning parent in Fawcett did not have "rights of custody" within the meaning of the Hague Convention because the Scottish divorce decree deprived one parent of her right to determine the child's place of residence, Shedd observed that here, the district court determined that the father's visitation rights were inferior to the ne exeat rights that were insufficient to support the petition in Fawcett. Shedd said that although the district court recognized that there was no explicit residence order as in Fawcett, it failed to recognize that the father's rights of custody were never modified by the March 20 German court order, which merely altered visitation rights.
Shedd explained that while the March 20 order delineated a schedule of visitation rights that clearly affected the father's rights of access, "it made absolutely no mention of modifying his rights to custody." Determining that the parties have not revealed any authority to suggest that rights of access and rights of custody are mutually exclusive, such that modification of one eliminates the other, he pointed out that the 11th Circuit has recognized a situation under the Hague Convention where a "French divorce decree awarded ... visitation and lodging rights to the mother, and joint legal custody to both parents." Bekier v. Bekier, 248 F.3d 1051, 1052, 27 FLR 1272 (11th Cir. 2001).
Existing Rights
Saying that it thus is entirely possible for courts to modify the visitation rights of one parent without disturbing the underlying joint custody of both parents, Shedd ruled that in the absence of any order removing the father's ability to determine the child's residence, he continued to retain joint custody rights as to her. Pointing to the mother's letter and testimony below, and to the German Central Authority's letter, he said that the parties "seemed to understand" that the father retained joint custody. Shedd also reasoned that the German court's December 2003 award of sole custody to the father suggested that he did retain some existing custodial rights over the child at the time of removal.
"For these reasons, it is clear that [the father] retained at least joint custody over [the child] because no competent German court has entered an order granting [the mother] sole custody," Shedd declared. He thus remanded for an expeditious determination of whether the father was exercising those custody rights and whether any defenses applied under the Convention.
