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In Kufner v Kufner,
440 F.Supp.2d 491 (D.R.I., 2007)
Petitioner Dominik Kufner sought the return of his two
children, J.K. and M.K., to Germany. On or about January 22, 2007, the
children were taken by their mother, respondent Tina Kufner, from
Germany to Rhode Island. Ms. Kufner contended that the children were not
wrongfully removed, and that, in the event that they were, she and the
children are entitled to remain in Rhode Island because the children, if
returned to Germany, would be subject to a grave risk of harm. Tina
Kufner was born in Cumberland, Rhode Island and was a United States
citizen. In 1989, she met Dominik Kufner, a German citizen, in Hong Kong
and in 1996 they were married and began to live in Munich, Germany.
Munich was the site of Mr. Kufner's successful family textile business,
which he partly managed. On September 3, 1998, two years after they
moved to Munich, J.K. was born, and then, on December 9, 1999, their
second child, M.K., was born. Both children were dual citizens of
Germany and the United States. Although the family lived exclusively in
Germany, they made frequent trips to Rhode Island, especially around the
holidays, to visit Ms. Kufner's family. In June or July of 2005, the
parents separated, moved out of their house, and by September had
acquired two smaller homes. During this separation period, the parents
informally agreed to share time with the children. Mr. Kufner traveled
frequently, and when he was gone the children resided with Ms.Kufner;
when Mr. Kufner returned, the children spent time with him.
In early 2006, however, a number of events
caused an escalation in tension between the parents and a breakdown in
their relationship. Ms. Kufner testified that in January 2006 she became
aware of a number of photographs Mr. Kufner had taken of the children
that caused her significant concern. The photographs were taken in
September 2005 in Mr. Kufner's house. The controversial pictures were
contained in a folder titled "naked boys in Moeribach." A total of 49
pictures were taken during this "event," although only 43 were submitted
to the court. (The last six were apparently pictures of the children
eating on the floor "like dogs," but Ms. Kufner did not rely on these
photographs for her Article 13(b) defense). The majority of
photographs-- thirty-nine of them–were relatively innocuous pictures of
the children playing and laughing, naked, in the living room of Mr.
Kufner's house. One picture of those thirty-nine also shows that the
children's au pair, Ms. Cain, was present. Four of the photographs, were
significantly more graphic in nature. In one, one of the boys is bent
over, looking through his legs at the camera. In this pose, his buttocks
and genitals are clearly displayed. In another, one of the boys is bent
over a couch with his genitals and buttocks the only visible portions of
his body; it appeared that he was unaware that the photograph is being
taken, although his face is not visible. In a third, one of the boys is
pictured lying down, with his buttocks clearly displayed. Finally, a
fourth photograph depicts one of the boys bent over the couch again,
with his buttocks clearly exposed. In early February, Mr. Kufner spent
ten days alone with the children during "ski week." This vacation caused
Ms. Kufner a great deal of anxiety because she was unable to see the
children. Then, likely in late February 2006, the children began
displaying certain observable physical symptoms, including bed-wetting,
nervous eye twitching, sleeplessness and nighttime crying and screaming.
In addition, Ms. Kufner claimed that the children played with the
foreskin of their penises and engaged in a "pee-pee dance." These
symptoms caused both parents significant anxiety, and each blames the
other for their onset. On February 21, 2006, Ms. Kufner's lawyer in
Germany sent a letter to Mr. Kufner requesting an explanation of at
least two of the photographs, includingone of the most graphic, and when
she did not receive an adequate response, Ms. Kufner petitioned for sole
custody of the children in the Weilhelm Local Court, Domestic Division
("German court" or "court"). In response, and because he feared Ms.
Kufner would leave the country with the children, Mr. Kufner sought and
received an ex parte order requiring Ms. Kufner to deposit the
children's passports with the court. The order was by its terms
effective until the court made a final determination in the custody
matter. On March 1, 2006, the parents attended a court proceeding during
which the children were heard by the court in camera. The hearing
resulted in a published opinion divided into two relevant sections. The
first, under the heading "Order," stated, in full: Both parties shall
exercise the parental custody jointly. The parental custody of both
parties shall be restricted to the extent that neither party is entitled
to establish for their children a domicile and/or permanent residence
abroad without the consent of the other party.
Thereafter Mr. Kufner petitioned for sole
custody of the children. Ms. Kufner claimed she then became aware,
possibly in the middle of August, of a number of additional photographs
that caused her even greater concern. After viewing the photographs, she
submitted them on August 25, 2006, through her lawyer, to the court in a
petition seeking to suspend Mr. Kufner's visitation rights with the
children or in the alternative to permit only supervised visitation.
Four days later, on August 29, 2006, Ms. Kufner submitted a petition to
the court seeking consent to relocate the children to the United States.
On October 18, 2006, without an oral hearing, the court issued a
temporary "Ruling on Access and Contact," to be followed until the court
determined the final merits of the custody case. That order held that
the father was entitled to access and contact to his children and stated
that there was no sufficient and adequate indication to the effect that
the father has overstepped any boundaries or taken any inappropriate
approach in bringing up his children. It cannot be inferred from the
photographs in dispute that the father is a pedophiliac [sic] or
inappropriately encourages any sexualised behaviour [sic] of his
children. Incidentally, the Respondent has known of the existence of
these photographs for a long time, without her taking any offence at
them at considering them to be an obstacle to the father's access and
contact. On November 12, 2006 the court issued an injunction structuring
the visitation rights of Mr. Kufner over the December holidays. The
injunction additionally forbid Ms. Kufner from traveling to the United
States with the children and ordered that she deposit the children's
American passports with her lawyer. The latter provision was amended in
a December 13, 2006, order requiring Ms. Kufner to deposit the American
passports at the district offices of DYF. On December 20, 2006, the
court issued a decision memorializing the parents' agreements in the
dispute. Both parents, the children and an interpreter were present, and
the court heard from both children in the absence of the parties. A
record of the decision reported that the parties agreed to a settlement
in court that formalized the visitation rights laid out in the November
12 interim order, required Ms. Kufner to deposit the children's American
passports with the United States Consulate, and enjoined Ms. Kufner from
traveling to the United States over the Christmas holidays. In late
January 2007, and in direct violation of the German court's order, Ms.
Kufner acquired the children's American passports from the Consulate
and, without notifying Mr. Kufner, left Germany with the children for
the United States. After determining that Ms. Kufner and the children
had relocated to the United States, Mr. Kufner flew to Rhode Island to
initiate this case. While all the parties were in Rhode Island, however,
Mr. Kufner sought an order in Germany awarding him sole custody. On
February 16, 2007, he successfully obtained a temporary order awarding
him full custody.
Additionally, by leaving Germany in violation
of a court order, Ms. Kufner has exposed herself to the possibility of
criminal charges if she returns. It was undisputed that M.K. and J.K.'s
habitual residence at the time of removal was Munich, Germany. Ms.
Kufner argued that Mr. Kufner did not have custody of the children as
evidenced by the German court's award of visitation and access rights to
him, but not to her. She therefore contended that she must have had sole
custody and he must have had only visitation rights. However, this claim
was clearly belied both by the specific custody order in this case and
by German custody law in general. The Court found that Mr. and Ms.
Kufner were separated but not divorced at the time Ms. Kufner left and
that they were, by order of court, exercising joint custody over the
children.
Although each party had sought sole custody,
the court order of March 1, 2006 "concerning parental custody"
makes clear that "[b]oth parties shall exercise the parental custody
jointly." This order was never superceded, explicitly or implicitly, and
is therefore controlling. Blackletter German law confirms this
understanding: "[w]here the parents are married at the birth of the
child, both acquire the parental care automatically without any further
act being required or even possible. Parental care thus continues until
ended by law (e.g.[,] at the death of the parent) or by Court order. The
parents' divorce or separation thus remains without influence on the
continuing parental care for the child." Peter Gottwald, et al., Family
and Succession Law in Germany 79 (2001).
Mrs. Kufner argued that there was a grave risk
of harm if the children were returned. It involved a combination of the
photographs taken by Mr. Kufner, the physical symptoms displayed by the
children, and the alleged inadequacy of the German court's
investigation. Ms. Kufner alleged that the existence of these factors in
combination would create a grave risk of harm if the children were
returned to Germany. In effect, Ms. Kufner claimed that Mr. Kufner
engaged the children in a photo session disguised to create child
pornography; that the children feel abused by this (hence the symptoms);
and finally that the German courts and child welfare agencies were
incompetent or otherwise unable to see what Ms. Kufner perceives as an
obviously harmful situation. Consequently, Ms. Kufner feared that she
will be unable to protect the children in the future. Thus, she argued
that only the system of child protection available in the United
States can protect the children from their father, and that return of
the children to Germany would create a grave risk and an intolerable
situation. The Court held that where Ms. Kufner sees smoke, however,
there is not only no fire, but there is not even smoke. Here, the
overwhelming absence of any evidence suggesting the children were
subjected to sexual abuse or, if returned, will be abused combined with
the thoroughness and adequacy of the German court's investigation
compelled the conclusion that there is no grave risk (let alone any risk
at all) that return to Germany would expose the children to any physical
or psychological harm or would otherwise place the children in an
intolerable situation.
Article 13 also provides that a court may
"refuse to order the return of the child if it finds that the child
objects to being returned and has attained an age and degree of maturity
at which it is appropriate to take account of its views." Hague
Convention, art. 13. Ms. Kufner insisted that because the children have
expressed a clear desire to remain in the United States with their
mother, the Court should decline to return the children to Germany. It
is true that this clause in Article 13 would provide a potentially
independent vehicle preventing the children's return to Germany if their
views were sufficiently considered and mature. However, a court is not
compelled to defer to the children's views, and it may disregard them
entirely in appropriate circumstances. See Tsai-Yi Yang v. Fu-Chiang
Tsui, No. 2:03-cv-1613, 2006 WL 2466095 (W.D.Pa. Aug.25, 2006) (noting
that the application of the "wishes of the child exception" is left
"wholly to the discretion of the district court"). The Court decided to
assume that, if asked, the children would express their desire to remain
in the United States with their mother. However, the evidence clearly
indicated that this desire emerged only after Ms. Kufner had wrongfully
retained the children in the United States. The GWG and Department of
Youth and Families reports indicate that, when asked in Germany, the
children expressed their desire to remain in Germany. Based on the
inconsistent wishes of the children--when in Germany they wish to remain
in Germany, and when in the United States they wish to remain in the
United States--and in light of the possibility that their "wishes" are
the product of a parent's invidious influence, as well as their young
age, lack of maturity and susceptibility to parental influence, the
Court exercised its discretion to disregard the children's wishes in
determining whether Article 13 should result in an order refusing to
return the children to Germany.
The court noted that a determination that a
respondent has not proved an Article 13(b) defense and that the children
can be returned to the country of habitual residence will not, in every
case, automatically result in the return of the children. Undertakings,
which are "based neither in the Convention nor in the implementing
legislation of any nation, are a type of safeguard that courts may
impose in order to help ensure that a potential risk of harm does not
materialize. The consideration of undertakings "allows courts to conduct
an evaluation of the placement options and legal safeguards in the
country of habitual residence to preserve the child's safety while the
courts of that country have the opportunity to determine custody of the
children within the physical boundaries of their jurisdiction." However,
the use of undertakings must be narrow in scope, and "must focus on the
particular situation of the child" and on whether some set of
requirements "will suffice to protect the child." Danaipour, 286 F.3d at
22. The Court noted that because undertakings "raise serious comity
concerns," Danaipour, 286 F.3d at 23, and are not enumerated within the
Hague Convention, their use has generated a considerable amount of
controversy. Some cases view the use of undertakings favorably. See
Walsh, 221 F.3d at 219 ("Given the strong presumption that a child
should be returned, many courts, both here and in other countries, have
determined that the reception of undertakings best allows for the
achievement of the goals set out in the Convention while, at the same
time, protecting children from exposure to grave risk of harm.");
Blondin v. Dubois, 189 F.3d 240, 249 (2d Cir.1999) ("Blondin I")
(encouraging the consideration of the "range of remedies that might
allow both the return of the children to their home country and their
protection from harm, pending a custody order in due course") (emphasis
omitted). And, at least one case has expressed skepticism over the use
of undertakings except in very limited situations. See Danaipour, 286
F.3d at 22. In Danaipour, the Court of Appeals for the First Circuit
analyzed the use of undertakings from the perspective of international
comity and concluded that undertakings which "[c]ondition[ ] a return
order on a foreign court's entry of an order" likely offend notions of
comity because they would "smack of coercion of the foreign court." Id.
at 23 (citing Elisa Perez-Vera, Explanatory Report: Hague Conference on
Private International Law 120 for the proposition that "the return of a
child cannot be made conditional upon [a] decision or other
determination being provided [by the court of the country of habitual
residence].") The court in Danaipour also doubted whether undertakings
that "go beyond the conditions of return" would be enforceable in the
home country, especially in countries where contempt of injunctive power
is absent. Id. The court held that some narrowly-focused undertakings
that do not offend notions of comity were necessary and appropriate to
ensure that the children would not be exposed to a risk of harm upon
return to Germany. Therefore, Petitioner was ordered, consistent with
representations made by him under oath and to the Court, to secure the
dismissal of any and all criminal charges currently pending against
Respondent in Germany; Petitioner was directed to act expeditiously to
obtain the prescribed medical procedures for M.K. in Germany. Until the
appropriate German court makes specific determinations regarding custody
and access and visitation rights, and consistent with his
representations to the Court, Petitioner was directed not to
unreasonably oppose Respondent's efforts to obtain reasonable access and
visitation with the children, nor shall he oppose any effort on her part
to obtain appropriate counseling to increase her visitation up to the
point of and including joint custody.
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