| In Kufner v Kufner, --- F.3d ----,
2008 WL 615506 (1st Cir. 2008) Dominik Kufner filed a
petition alleging that his wife, Tina Kufner, wrongfully removed the
couple's two minor sons, J .K. and M.K., from Germany to Rhode Island.
Tina was a United States citizen and native of Rhode Island. Dominik was
a German citizen who owned a business in Munich, Germany. They married
in 1996 and settled in Munich. In 1998, they had their first son, J.K.,
and in 1999 they had a second son, M.K. Tina and Dominik began having
marital problems and they separated in 2005. In early 2006 their
relationship began to deteriorate after Tina discovered graphic
photographs of the sons taken by Dominik. Dominik took 49 photographs of
the sons at his house in 2005. Tina submitted 43 of them to the court in
support of her Article 13(b) defense that her sons would face a grave
risk of harm if returned to Germany. The district court described 39 of
the photographs as relatively innocuous pictures of the children playing
and laughing, naked, in the living room of Dominik's house. The other
four photographs were more graphic in nature. Dominik stored the
photographs on his computer. Tina learned of the photographs in January
2006. In early February 2006, Dominik spent ten days alone with the sons
during ski week, a German school holiday. After returning from the ski
week holiday, the sons began to display disturbing physical symptoms,
including bed-wetting, nervous eye twitching, sleeplessness, and
nighttime crying and screaming. The parents blamed each other for the
problems. Tina's German lawyer sent a letter to Dominik demanding an
explanation for the photographs. When she did not receive an adequate
response, she petitioned for sole custody in the German court. Dominik
feared that she would leave the country with the sons, so he obtained an
order requiring her to deposit their passports with the court. The
German court ordered a home study for both parents' homes and talked
with the sons in camera. It then issued a written opinion, holding that
the parents must exercise joint parental custody, specifying the dates
on which the parents can have access to the sons and where they can
travel with them, and ordering that their passports be returned to Tina.
In summer 2006, Dominik petitioned the German court for sole custody.
The court requested a social worker with the Department of Youth and
Families to conduct an evaluation of the parents and the sons. The
social worker recommended that the court deny his petition for sole
custody and expressed concern about the acrimony between the parents.
Tina petitioned the German court to suspend Dominik's visitation rights
or, in the alternative, to permit only supervised visitation. Four days
later, she petitioned for permission to relocate the sons to the United
States. Without ruling on either petition, the German court ordered an
investigation of the photographs. On October 18, 2006, without a prior
hearing, the German court issued a temporary "Ruling on Access and
Contact," which was to be followed until the court determined the final
merits of the custody case. In this ruling, the court ordered that
Dominik be given rights of access to the sons and that the parents must
refrain from having disputes in their presence. The court concluded that
the photographs did not indicate that he was a pedophile and that he did
not inappropriately encourage sexualized behavior of the sons. On
November 12, 2006, the German court issued an injunction structuring
Dominik's visitation rights over the Christmas holidays. The injunction
forbade Tina from traveling to the United States with the sons. The
court ordered her to deposit their American passports with the
Department of Youth and Families. On December 20, 2006, the court
conducted a hearing and met with the sons in the absence of their
parents. Later, at the same hearing, the parents agreed to a settlement
on visitation rights during the holidays that conformed with the
November 12 injunction. The agreement required Tina to deposit the sons'
American passports with the United States consulate and to refrain from
traveling to the United States over the Christmas holidays. In January
2007, in direct violation of the German court orders, Tina obtained the
sons' American passports from the consulate and fled to the United
States without notifying Dominik or the German court. On January 31,
2007, Dominik filed a petition in the district court seeking return of
the sons to Germany in his custody. While this case was pending, on
February 16, 2007, he obtained a temporary order from a German court
awarding him full custody. Pursuant to Federal Rule of Civil Procedure
17(c) and with the consent of the parties, the district court appointed
Sharon O'Keefe as guardian ad litem and attorney for the sons. The
district court granted Dominik's petition for return of the sons to
Germany. Kufner v. Kufner, 480 F.Supp.2d 491 (D.R.I.2007). It held that
the sons were wrongfully removed from Germany in violation of the Hague
Convention. It concluded that Tina failed to prove her Article 13(b)
defense because she could not show by clear and convincing evidence that
the sons would face a grave risk of harm if returned to Germany with
their father. She did not challenge this finding on appeal. The district
court conditioned the order of return on certain undertakings.
Dominik moved to dismiss Tina's appeal as moot. He
contended that resolving this appeal on the merits could result in
conflicting custody orders and that the "ongoing exercise of continuing
jurisdiction" over the custody dispute by the German court rendered this
appeal moot. The First Circuit denied this motion and resolved the
appeal on the merits because the appeal presented a live controversy.
Tina argued that the district court erred by
concluding that she had wrongfully removed her sons from Germany. In
support of this argument, she asserted that the removal of the sons was
not "wrongful" because she brought M.K. to Rhode Island for medical
treatment. The Court of Appeals held that she confused "wrongful"
removal under the Hague Convention with her own legally-unsupported
notion of "justified" removal. Therefore, her argument failed. Tina
conceded that the sons' regular place of residence was Germany.
Therefore, the only issues were whether Dominik had "rights of custody"
over the sons under German law and whether he was exercising or would
have exercised those rights but for the removal. The district court
correctly decided both issues in favor of Dominik. Dominik had rights of
custody over the sons at the time Tina removed them from Germany. He had
rights relating to their care and he had at least a shared right to
determine their place of residence. 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 (e.g., death of a parent) or a court
order terminates joint custody. At the time she removed the sons, she
and Dominik were undergoing divorce proceedings, but the proceedings
were not final and joint custody remained in effect. The German court
stated in its written opinion that it awarded the parents joint custody
pending the investigation and final determination of the merits. This
order was not suspended or superseded before she removed the sons to
Rhode Island. Dominik would have exercised his rights of custody but for
Tina's removal of their sons from Germany. He persistently sought
custody of the sons and visited them often. After this proceeding began,
Dominik successfully petitioned the German court for full custody of his
sons on a temporary basis.
Tina argued that the Hague Convention violates
the equal protection component of the Due Process Clause of the Fifth
Amendment. In support of her argument, she claimed that the Hague
Convention's grave risk of harm standard was unconstitutional because
she was entitled to the less-demanding best interests of the child
standard. She did not raise this argument before the district court. The
Court declined to address this argument because arguments not advanced
in the district court cannot be raised for the first time on appeal.
Under Article 13 of the Hague Convention, the
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 [the child's]
views. The First Circuit held that no part of the Hague Convention
requires a court to allow the child to testify or to credit the child's
views, so the decision rests within the sound discretion of the trial
court. The district court did not abuse its discretion by refusing to
allow J.K. to testify. Dr. Weintrob, a child psychiatrist, testified
that further questioning of J.K. could be harmful because repeatedly
confronting him about the pictures could make him anxious and distort
his ability to distinguish reality from fantasy. Additionally, the sons
had been questioned enough and further questioning would not be
informative. The district court assumed that the sons, if asked, would
express a desire to remain in the United States with their mother. It
also noted that they expressed a desire to remain in Germany when asked
by the GWG in Germany. The district court properly gave little weight to
their wishes because of their young ages, lack of maturity, and
susceptibility to parental influence. The district court did not abuse
its discretion when it concluded that it would be harmful and pointless
to allow J.K. to testify.
The district court conditioned the order of
return on certain undertakings. Tina claimed that the undertakings were
insufficient to protect her and the sons upon their return to Germany.
The First Circuit noted that the district court rejected Tina's Article
13(b) defense and found that there was no grave risk of harm. While
there may be other considerations, such as international comity, that
justify reversing or modifying a district court's imposition of
undertakings even in the absence of a grave risk of harm, such
circumstances were not present here. The district court ordered Dominik
to secure dismissal of German criminal charges against Tina that arose
out of this dispute after he represented that he could do so. It also
ordered Dominik to act quickly to obtain medical care for M .K. and to
allow Tina reasonable access and visitation until a German court orders
otherwise. These undertakings did not prejudice Tina and they did not
offend notions of international comity. The district court did not err
by imposing the undertakings.
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