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In Bader v Kramer, 484 F.3d
666 (4th Cir., 2007), 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. In
August 2000, Bader and Kramer separated. At all times after the
separation, C.J.B. resided with Kramer. Kramer was the sole source of
financial support for C.J.B. Bader and Kramer were divorced in June
2002. C.J.B. continued to reside with Kramer and was supported
financially by her subsequent to the divorce. 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 the amount of 177 euros per month. On April 4, 2003, Kramer
picked up C.J.B. from Bader's home and traveled with her to the United
States. Kramer did not inform Bader of her intent to do so, and she did
not have his consent. Kramer and C.J.B. have remained in the United
States since that date. 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
Bader sole custody in an order dated December 4, 2003. Bader then filed
his petition in the district court under the Hague Convention. The
district court denied Bader any relief after finding that he did not
have cognizable rights of custody under the Hague Convention. The Fourth
Circuit reversed, holding that, under German law, Bader possessed joint
custody rights to C.J.B. Bader v. Kramer, 445 F.3d 346, 351 (4th
Cir.2006) ("Bader I "). This was so because German law vests both
parents with joint custody of a child until a competent court enters a
contrary order. It then remanded the case to the district court for a
determination as to whether Bader was exercising his custody rights at
the time of C.J.B.'s removal and whether any defenses apply under the
Hague Convention. On remand, the district court found that Bader was
actually exercising his custody rights and that no defenses precluded
C.J.B.'s return to Germany. Consequently, the district court ordered
C.J.B. returned to Germany. Kramer appealed.
The Fourth Circuit pointed out that Bader I
established that C.J.B.'s removal from Germany was in breach of Bader's
custody rights under German law. Therefore, on remand, the only
questions before the district court were whether Bader was actually
exercising his custody rights at the time of C.J.B.'s removal and
whether Kramer had established any defense precluding C.J.B.'s return to
Germany. The Court noted that a showing of "actual exercise" is a
necessary element of a claim of wrongful removal under the Hague
Convention. Despite this requirement, the Hague Convention does not
define exercise. Therefore, an initial issue was what exercise means in
the context of the Hague Convention. The court was concerned with the
fact that an inquiry into the exercise of custody rights pushes the
court toward a consideration of whether a parent's custody rights should
be ignored because he or she was not acting sufficiently like a
custodial parent. This would move it perilously close to a determination
on the merits of the parent's underlying custody claim-a determination
which is reserved for the courts of the country of habitual residence.
It light of its concerns it found " persuasive the nearly-universal
approach taken by courts faced with the question of the exercise of
custody rights, and adopted it here, holding that it will liberally find
'exercise' whenever a parent with de jure custody rights keeps, or seeks
to keep, any sort of regular contact with his or her child. (Citing
Friedrich,78 F3d at 1065; Sealed Appellant, 394 F.3d at 344-45; Baxter
v. Baxter, 423 F.3d 363, 370 (3d Cir.2005).) Under this approach, a
person [who] has valid custody rights to a child under the law of the
country of the child's habitual residence ... cannot fail to "exercise"
those custody rights under the Hague Convention short of acts that
constitute clear and unequivocal abandonment of the child. Friedrich, 78
F.3d at 1066. Further, "[o]nce it determines the parent exercised
custody rights in any manner, the court should stop-completely avoiding
the question whether the parent exercised the custody rights well or
badly." The Court pointed out in a footnote that this approach will not
apply when the country of habitual residence, by law, expressly defines
the exercise of custody rights for purposes of the Hague Convention.
(Citing Friedrich, 78 F.3d at 1066 n. 6.) Similarly, when a competent
judicial tribunal in the country of habitual residence has made a
determination as to whether a parent was exercising his custody rights,
that determination will normally be conclusive. .
With these principles in mind, the Court had no
difficulty affirming the district court's finding that Bader exercised
his right to joint custody here. During the three months between his
release from prison and C.J.B.'s removal, Bader had actual physical
custody of C.J.B. on at least three occasions. In addition, Bader paid
child support to Kramer when ordered to do so and financially supported
C.J.B. during the times when she was in his custody. While any one of
these facts might suffice to establish that Bader did not clearly and
unequivocally abandon C.J.B., their aggregation certainly did so,
leading to the conclusion that Bader actually exercised his custody
rights under the Hague Convention.
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