In Shealy v. Shealy, 295 F.3d 1117 (10th Cir., 2002) the father brought an action against the mother, challenging the child's removal from Germany to the United States, following a temporary German court order that the child could not be unilaterally removed from Germany absent military necessity. The District Court entered judgment in favor of the mother. The Court of Appeals held that: the evidence was sufficient to support the finding that the child's removal did not violate the Hague Convention or ICARA, and that the interim German court order, prohibiting the child's removal from Germany except in case of military necessity, was the relevant law governing the parents' custody rights. In an action pursuant to the Hague Convention, the Court of Appeals reviews the district court's findings of fact for clear error and its conclusions regarding principles of domestic, foreign, and international law de novo.

The evidence was sufficient to support the finding that the mother, who was a member of the armed forces, removed the child from Germany to the United States, due to military necessity, as permitted by the interim German court order, prohibiting removal of the child except in case of military necessity, so that the child's removal did not breach the father's custody rights, and thus was not "wrongful". Although the mother removed the child after she admittedly requested a military transfer to the United States, in order to avoid an unfavorable ruling by a German court, a military expert testified that when a soldier was reassigned, it was a military necessity for the soldier to report once the order was issued, the mother testified that she understood that she needed to report as soon as possible, and the German court found that the removal of the child did not violate the interim order.

Under the Hague Convention, the law of the country in which the child was habitually resident governs decisions as to whether custody rights existed at the time of the child's removal from the country.

German law gives both parents equal de jure custody of a child, custody which continues with few exceptions until a competent court says otherwise. The interim German court order, prohibiting the child's removal from Germany except in case of military necessity, was the relevant law governing custody rights of the parents, for purposes of determining whether the child's removal was "wrongful". Although the interim order was nota final decision with respect to custody, it delineated the parents' rights in the period between the instigation of the custody action and the final custody order.