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In Bader v Kramer, 445 F.3d 666 (4th Cir. 2006) Bader was a citizen of Germany, and Kramer was a dual citizen of Germany
and the United States. They were married in Germany in 1998. Their only
child, C.J.B., was born in 1999 in Germany. From the date of C.J.B.'s
birth until Kramer left Germany on April 4, 2003, Bader, Kramer, and
C.J.B. all resided continuously in Germany. Bader and Kramer were
legally divorced in June 2002. C.J.B. continued to reside with Kramer
and was supported financially by her subsequent to the divorce. Bader
was released from prison on December 17, 2002, and was placed on
probation for a period of three years. That same day, Kramer and C.J.B.
traveled to the United States with Bader's consent. They returned to
Germany on January 3, 2003. On January 9, 2003, Bader picked up C.J.B.
from her school for an eight-day family ski vacation. On January 16,
2003, Kramer filed a petition in a German court seeking sole custody,
and on February 6, 2003, Bader filed a petition seeking sole custody. On
March 20, 2003, the German court ruled on the petitions, setting forth a
visitation schedule for Bader and granting Kramer an award of child
support. In Germany, Bader filed a petition for sole custody in June
2003. In October 2003, Bader filed a Request for Return of Child under
the Hague Convention with the Central Authority of Germany. The German
Central Authority sent a letter to the American Central Authority in
November 2003 stating that when Bader and Kramer "were divorced, no
decision about the rights of custody was issued. So both still have
parental responsibility for the child pursuant to Section 1626 of the
German Civil Code (BGB)." A German court granted him sole custody in an
order dated December 4, 2003.
Bader then filed this petition in the district court under the Hague
Convention. In a letter to Bader's counsel, Kramer stated that Bader
"was authorized visitation/custody rights (which he rarely exercised)."
Kramer stated in district court filings that the German court order "set
conditions of visitation." Additionally, at trial before the district
court, Kramer admitted that when she left Germany with C.J.B. after the
March 20, 2003, order she "shared joint custody over" C.J.B. with Bader
and that she was "disappointed" with the provisions of the order. J.A.
905. The district court denied Bader any relief on his petition after
finding that he did not have cognizable rights of custody under the
Hague Convention.
Bader contended on appeal s that the district court erred in
concluding that he no longer retained sufficient rights of custody in
C.J.B. within the meaning of the Hague Convention. The District Court
held that German law presumptively confers, upon both parents, joint
custody of the child until a competent court enters a contrary order.
The district court 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." The Fourth Circuit disagreed.
The Fourth Circuit noted that iIn Fawcett v. McRoberts, 326 F.3d 491
(4th Cir.2003), it addressed the similar question whether a Scottish
court had issued an order modifying a parent's right to custody and
determined that a divorce decree in Fawcett did just that because it
contained a "Residence Order." Specifically, the "Residence Order" gave
one parent "the exclusive power to determine [the child's] residence,
thereby necessarily depriving [the other parent] of that same right."
Additionally, it cited a Scottish case providing that a parent loses her
"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, i.e., the equivalent of a ne exeat clause, it found
that this Scottish law merely allowed "a parent with access rights to
impose a limitation on the custodial parent's right to expatriate his
child.... This hardly amounts to a right of custody." Thus, not
with-standing this 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 divorce decree deprived
one parent of her right to determine the child's place of residence.
The district court determined that Bader's visitation rights were
inferior to the ne exeat rights that were insufficient to support the
petition in Fawcett. Although the district court recognized that there
was no explicit Residence Order as in Fawcett, it failed to recognize
that Bader's rights of custody were never modified by the German court's
March 20, 2003, order, which merely altered visitation rights. While the
German court order delineated a schedule of visitation rights that
clearly affected Bader's rights of access, it made absolutely no mention
of modifying his rights to custody. Before the March 20, 2003, order
both parents shared joint custody over C.J.B. That order was a response
to Kramer's petition for sole custody. Kramer repeatedly acknowledged
her understanding that after March 20, 2003, Bader retained rights of
custody. After March 20, 2003, the German Central Authority issued a
letter stating that "both [parents] still have parental responsibility
for the child" under the German Civil Code providing for joint custody.
Finally, the German court's subsequent award of sole custody to Bader in
its order of December 4, 2003, suggests that Bader did retain some
existing custodial rights over C.J.B. at the time of removal.
The Fourth Circuit held that Bader retained at least joint custody
over C.J.B. because no competent German court had entered an order
granting Kramer sole custody. Thus, it remanded the case to the district
court for an expeditious determination of whether Bader was exercising
those custody rights and whether any defenses apply under the Hague
Convention.
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