In Rydder v Rydder, 49 F.3d 369 (8^th Cir.,1995) Susan Marie Rydder appealed the district court's grant of the petition brought by her husband, Bjorn Michael Rydder, for return of the couple's two children to Poland under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") and its implementing legislation, the International Child Abduction Remedies Act ("ICARA"). The district court determined that Poland was the habitual residence of the children and that their mother wrongfully removed them to the United States. The Circuit Court of Appeals reversed.

Appellant, an American citizen, and appellee, a Danish citizen, were married in 1988. At the time of their marriage, both were registered residents of Sweden. Their son Bjorn Jacob was born in Stockholm on November 8, 1990, and their daughter Emmelie Marie was born in Stockholm on August 21, 1992. The parties consistently exercised joint custody of the children. Mrs. Rydder acted as their primary caretaker, while Mr. Rydder worked full-time to provide for the family's financial needs. Mr. Rydder's employer transferred him to Warsaw, Poland, in 1992, and the family was relocated with him. The district court found that the family intended to remain in Poland for two years, the duration of Mr. Rydder's employment contract, but had no definite plans following that period. The contract was since extended by one year, through September 30, 1995. All of the family members remain registered residents of Sweden. The parties have experienced marital difficulties dating at least from their arrival in Poland. In May of 1993, Mrs. Rydder, without the prior knowledge or consent of her husband, left Poland with the two children and traveled to her parents' home in Iowa. She returned to Poland voluntarily after two months, but asserts that she became "fearful" with respect to her husband's behavior. On April 6, 1994, Mrs. Rydder again took the children to Iowa without previously informing their father, leaving behind a note explaining that she intended to file for divorce when she reached the United States. Although the district court acknowledged the parties' earlier disputes, it found no credible evidence that the children had experienced or would risk physical or psychological harm in Poland.

On September 30, 1994, Mr. Rydder petitioned the district court for the return of his children to either Sweden or Poland under the Hague Convention and ICARA. During the one-day bench trial, Mr. Rydder testified that he was willing either to allow his wife to rejoin him in Poland or to hire an au pair to care for the children. The district court ordered the return of the children to Poland. Subsequently, the district court ordered Mrs. Rydder to pay all of Mr. Rydder's attorney fees, legal costs, and expenses relating to the return of the children. The attorney fees and legal costs total $18,487.42, and the related expenses total 9,667.40. Mrs. Rydder owned stock valued at $18,683, and has worked sporadically as a substitute teacher since her return to Iowa. Her own legal expenses were estimated at $8,506.40.

The Court of Appeals pointed out that although this is a case of first impression in the Eighth Circuit, the Sixth circuit court had determined that "wrongful removal" is a term of art not strictly defined in the Convention. (Citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993). It does not require an ad hoc determination of the underlying merits or a balancing of the equities. It agreed with this assessment of a court's duty under the Hague Convention. Article 19 of the Convention and ICARA, 42 U.S.C. ' 11601(b)(4), do not allow a court applying the Convention to adjudicate the merits of any underlying custody claims. Rather, in an action for the return of a child to the habitual residence, a petitioner must prove only that the child was removed or retained "wrongfully," as that term is defined in Article 3 of the Hague Convention. A respondent who opposes the return of a child may advance any of the affirmative defenses to return listed in Articles 12, 13, or 20 of the Hague Convention. It believed that a court applying the Hague Convention should construe these exceptions narrowly.

Although the Hague Convention does not define "habitual residence," a frequently-cited British case, with which it agreed, concluded that there is no real distinction between habitual and ordinary residence. (Citing Friedrich v. Friedrich, 983 F.2d at 1401, citing Re Bates, No. CA 122.89, High Court of Justice, United Kingdom (1989). That court added: It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or presuppositions. Thus the district court's treatment of the children's Swedish residence registration as a legal fiction of little consequence to the determination of their habitual residence was entirely appropriate.

Mrs. Rydder attempted on appeal to overturn the district court's rejection of an Article 13(b) exception to return of the children under the Hague Convention. Article 13(b) allows a court to deny return of a child to the habitual residence if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." ICARA requires that a respondent opposing return of a child under Article 13(b) must establish this exception by clear and convincing evidence. Although Mrs. Rydder cited several authorities that recognize that separating a child from his or her primary caretaker creates a risk of psychological harm the district court was presented with no specific evidence of potential harm to Bjorn Jacob or Emmelie Marie Rydder. The district court found both parties to be "intelligent, mature, loving parents," and this finding was not clearly erroneous. Thus the district court properly determined, on the basis of the evidence presented, that Article 13(b) was not an obstacle to the return of the children to Poland.

ICARA requires any court ordering the return of a child under the Hague Convention to award fees and costs to the successful party unless such order would be "clearly inappropriate." Because of Mrs. Rydder's straitened financial circumstances, however, we find the award of fees and legal costs to Mr. Rydder so excessive as to constitute an abuse of discretion. An award of $10,000, rather than $18,487.42, was more equitable in this particular case.