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In Krefter v Willis, 623 F.Supp.2d 125 (D.
Mass. 2009) Petitioner Marco Krefter sought return of his daughter. He
asserted that Respondent, Pamela C. Wills, his former wife and mother of
his child, C.K., now age eight, removed the child from Germany to the
United States without his knowledge or consent and in contravention of
his custody rights. Ms. Wills, who wass indigent, asserted that Mr.
Krefter was not actually exercising his custody rights at the time of
removal in October 2007, and due to Ms. Wills' dire financial situation
and other factors, there was a grave risk that the return of the child
would cause her physical or psychological harm or place her in an
intolerable situation. The petition was granted subject to certain
undertakings. Mr. Krefter, a German citizen, and Ms. Wills, an American
citizen, first met in 1990. Six months later, Ms. Wills moved to Germany
to be with Mr. Krefter, and in 1994, the two were married in a civil
ceremony in Germany. The couple resided together in Germany, though they
spent significant amounts of time in the United States. They maintained
a residence (either owning or renting) in the States continuously from
the late 1990s through 2005 and started two companies in Massachusetts,
where Ms. Wills' family resided. In December 2000, C.K. was born. All
three lived together in Hamburg, Germany. The family continued to visit
the United States regularly, approximately three times per year. Ms.
Wills spent the summers with C.K. on Cape Cod in Mashpee, Massachusetts,
where Ms. Wills' family resided (with Mr. Krefter joining them for part
of the summer vacation). From her arrival in Germany in 1991 through
approximately 1997, Ms. Wills held jobs with the United States military
and two separate companies in Germany. In 1997, Ms. Wills and Mr.
Krefter started a paint distribution company in Mashpee, Massachusetts.
Though Mr. Krefter retained control of the company, Ms. Wills and
several of her family members constituted the company's work force. This
company was followed by another in which Ms. Wills also played a role.
Besides her roles in these two companies, and her occasional "support"
of Mr. Krefter (a self-described international business consultant) in
his work, Ms. Wills did not work outside the home after 1997. In August
2005, Ms. Wills and Mr. Krefter separated. Ms. Wills made the decision
to leave Mr. Krefter. In August 2007, Ms. Wills learned that her earning
potential was limited. In 2000, Ms. Wills had, at Mr. Krefter's urging
for tax reasons, changed her residence to Mashpee, Massachusetts. Seven
years later, when Ms. Wills went to renew her work permit with the
German authorities, she discovered that, because she had not been listed
as a German resident, she was now only eligible for a work permit with
substantial restrictions. According to Ms. Wills, this severely limited
her ability to work as a freelance teacher at the language agency.
According to Ms. Wills, after they separated in
2005, Mr. Krefter did provide her with some financial payments, but they
varied dramatically in both the amount of the payments and their timing.
In late 2006, Mr. Krefter and Ms. Wills agreed that he would pay 810
Euros per month in child support. With the exception of the month of
March (when he paid only 250 Euros), Mr. Krefter fulfilled this
agreement from January through June 2007. However, Mr. Krefter made no
child support payments in July 2007, paid 120 Euros in August 2007, and
paid only 250 Euros each month thereafter (through the time of hearing
). Ms. Wills constantly struggled to pay the bills. In June 2007, Ms.
Wills traveled to the United States with C.K. for summer vacation with
Ms. Wills' family on Cape Cod. Ms. Wills and C.K. returned from the Cape
in mid-August that year. Ms. Wills' financial situation remained dire
upon her return to Germany at the end of the summer in 2007. On October
5, 2007, Ms. Wills moved out of her German apartment and returned, with
C.K., to her parents' home in Mashpee, Massachusetts. She did not give
advance notice to Mr. Krefter, and he never gave consent for the
removal. Two days later (October 7, 2007), Ms. Wills e-mailed Mr.
Krefter informing him that she and C.K. had gone to Massachusetts
because she was unable to cover even her and C.K.'s "most basic living
expenses." Ms Wills explained that the lack of reliable child support
from Mr. Krefter and her inability to qualify for financial support or
an unrestricted work permit from the German government because of her
residency status had forced her to leave. She never sought assistance
from the German courts.
Mr. Krefter filed the petition with this court
on October 2, 2008, nearly one year after C.K.'s departure from Germany.
Mr. Krefter stated that he does not seek exclusive physical custody of
C.K. Rather, he sought only that she return to Germany for custodial
proceedings. Both parties agreed that Germany qualifiedas C.K.'s
habitual residence under the Convention and that, under German law, Mr.
Krefter and Ms. Wills jointly held custody rights to C.K. See Kufner,
519 F.3d at 39 ("Under German law, where parents are married at the
birth of the child, they have joint custody over the child until the
operation of law ... or a court order terminates joint custody."). Thus,
with respect to the initial determination as to whether the removal was
"wrongful," the sole issue was whether Mr. Krefter had proven that he
was exercising or would have exercised his custody rights but for the
removal.
The court noted that the Sixth Circuit
concluded that only "acts that constitute clear and unequivocal
abandonment of the child" can cause a person with valid custody rights
to be deemed as having failed to "exercise" those rights under the Hague
Convention. Friedrich II, 78 F.3d at 1066. Most American courts
confronting a dispute involving the "actual exercise" prong have
followed this approach outlined in Friedrich II. Ms. Wills
contends that, at the time she removed C.K. from Germany in October
2007, Mr. Krefter was not actually exercising his rights. She asserts
that, following the explosive altercation at her apartment in June, Mr.
Krefter unilaterally slashed his child support payments to 250 Euros and
suspended his contact with C.K., actions which, in Ms. Wills' view,
amount to "unexplainable neglect" and the non-exercise of custodial
rights under the Convention. Friedrich II, 78 F.3d at 1066 ("[T]here may
be situations when a long period of unexplainable neglect of the child
could constitute non-exercise of otherwise valid custody rights....").
Mr. Krefter made no child support payments in July 2007, paid 120 Euros
in August 2007, and paid only 250 Euros in September and October 2007.
As for visits, after Mr. Krefter angrily left her apartment (without C.K.)
on June 23, 2007, Mr. Krefter only saw C.K. once before Ms. Wills
ultimately left Germany with C.K. in early October. On this occasion,
Mr. Krefter did not arrange for a visit, but rather unexpectedly stopped
C.K. on her way home from school one September afternoon. The Court held
that the continued payment of some level of child support, coupled with
Mr. Krefter's communication and visits with C.K. earlier in the
year--vitiated any contention that Mr. Krefter clearly and unequivocally
abandoned his custody rights. The Court found that Mr. Krefter
demonstrated, by a preponderance of the evidence, that he was actually
exercising his custody rights at the time of removal in October 2007.
For the same reason, Ms. Wills had not established a defense under
Article 13. Ms. Wills also contended that the Court should not order
C.K.'s return to Germany because, if returned, C.K. would face a "grave
risk" of harm or be placed in an intolerable situation. She contended
that if she returned to Germany with C.K. to face a protracted custody
proceeding, she would have no way to support herself and C.K., and they
would end up homeless or living in an equally intolerable situation in
Germany. The court held that the bar for proving the "grave risk"
exception is set exceptionally high. Ms. Wills made no allegations that
Mr. Krefter ever abused her or C.K.Instead, Ms. Wills contended that,
because C.K. was "emotionally dependent" on Ms. Wills, has been enrolled
in school in Mashpee since October 2007, and had "flourished" since she
began living with her mother and grandparents in Mashpee, she would face
certain psychological harm if forced to return to Germany.
Reinterating that the test for establishing a
"grave risk of harm" defense is undeniably stringent the court concluded
that Ms. Wills had not satisfied this exceedingly high standard. The
court pointed out that Courts considering petitions for return under the
Convention have the authority to impose conditions, known as
undertakings, to ensure that a potential harm "does not manifest" when a
child returns to his or her country of habitual residence. Kufner, 480
F.Supp.2d at 515 n. 34 ("[W]here the potential for harm is real, even if
it does not meet the Article 13(b) definition, [a court] ... has an
obligation to attempt to ensure that it does not manifest."), aff'd, 519
F.3d 33, 41 (upholding conditions imposed by district court on child's
return ); see also Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir.1995)
(instructing a district court that, in the event it concludes that a
mother's Article 13(b) defense falls short but that "an unqualified
return order would be detrimental" to the child, "the court should
investigate the adequacy of undertakings ... to ensure that [the child]
does not suffer shortterm harm"). Undertakings are "a type of safeguard
that courts may impose in order to help ensure that a potential risk of
harm does not materialize." Kufner, 480 F.Supp.2d at 513; see Danaipour,
286 F.3d at 21 ("Undertakings can be an important tool for courts to
comply with the Convention's strong presumption of a safe and speedy
return of a wrongfully removed child."); Walsh, 221 F.3d at 219. The
court held that a A prolonged separation from Ms. Wills would be very
detrimental to C.K. It found there was a grave risk that Mr. Krefter
would not provide reasonable financial resources to Ms. Wills upon her
return to Germany. To ensure that C.K. and her mother do not live in
intolerable financial conditions in Germany until the German court has
the opportunity to resolve this acrimonious situation, the Court
required, as conditions for her return, that Mr. Krefter pay for
airplane tickets for C.K. and Ms. Wills to return to Germany, procure
and pay for housing for Ms. Wills and C.K. in advance of their
departure, and pay three months of child support at the mutually agreed
upon amount of 810 Euros before their departure. Both parents shall use
reasonable efforts to schedule court proceedings forthwith in Germany so
as to require minimal disruption to C.K.'s schooling.
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