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In Trundig v Trundig, 686 F.Supp.2d 570 ( M.D. North Carolina, 2010) the
district court granted the Petition of Harry Trundig seeking return of
his minor child, E.T., to Germany. Petitioner, a United States citizen,
and Respondent, a citizen of Germany, were married in 1993, in Germany.
They were the natural parents of the minor child, E.T., who was born in
Germany. E.T. and was fifteen and one-half years old. Since their
marriage, Petitioner and Respondent maintained a home in common until
they separated in March 2009. E.T. lived with his family in Germany up
to the age of five. The family then moved to Columbia, South Carolina,
where Petitioner was stationed in the U.S. military at Fort Jackson. In
2004, the family, returned to Germany. From January 2004 to the present,
the parties, E.T., his brother and sister, all lived in Germany.
Petitioner continued to work for the military in Germany in a civilian
capacity. Following the separation, E.T., his sibling, and Respondent
all lived with Respondent's parents in Germany. Petitioner did not live
with the family but maintained visitation with E.T. for several hours
approximately every other weekend. On or about December 16, 2009,
Respondent traveled to Greensboro, North Carolina, with E.T. for a
two-week vacation. Rather than returning to Germany as planned,
Respondent and E.T. remained in the United States and enrolled E.T. at
Northwestern Guilford High School in early January 2010.
Based upon evidence that Respondent was avoiding being served with
the court's February 2, 2010 Order to show cause the court entered an
Order granting Petitioner's motion pursuant to ICARA, and ordered that
the child be removed from the person having physical control of the
child. 42 U.S.C. 11604. The court found that under North Carolina
General Statute 50A-311, a warrant was justified to take physical
custody of E.T. and the travel documents belonging to him and
Respondent, because evidence revealed that he was likely to be
imminently removed from the state.
The court held a hearing on the Verified Petition. During the hearing,
the court conducted an in camera examination of E.T. In addition to the
judge and E.T, the court reporter, law clerks, and attorneys were
present for the in camera examination conducted in chambers; the parties
elected not to attend. At the hearing on February 9, 2010, Respondent
agreed that Petitioner had made out the prima facie case for return of
the child, with the Respondent stipulating to those elements. The court
found that the stipulation was supported by the preponderance of the
evidence.
Respondent raised two defenses at the hearing on February 9, 2010: (1)
E.T.
would face a grave risk of harm or an intolerable situation upon return
and (2) E.T.
objects to being returned and was of sufficient age and maturity such
that his opinion should be considered. It rejected the Respondent
argument that E.T. faced a grave risk of harm or an intolerable
situation if returned to Germany because there would be uncertainty
regarding the conditions he would face. It also rejected his argument
that Petitioner's alcohol consumption may pose a potential risk of harm
or an intolerable situation. E.T. testified, before the separation
Petitioner drank between four to six beers after work unless he had
upcoming physical training. If Petitioner fell asleep with a beer in his
hand and awoke to someone attempting to remove the beer, E.T. stated,
Petitioner could become angry and yell. E.T., stated, however, that his
father had never been violent toward him and he had no reason to
think that he would. E.T. expressed some concern on occasion whether his
father, before the separation, was in a condition to drive E.T. in the
mornings. While unaware of his father's current drinking habits,
E.T. stated that at some point his father indicated he would stop
drinking but that he had on at least one occasion consumed an occasional
beer at a German festival or similar event.
The court found that E.T. has attained an age and degree of maturity
such that the court should consider his opinion. He presented himself as
an intelligent, well-
mannered fifteen and one-half year-old. He was approximately six months
from the age determined by the Convention to no longer be subjected to
it procedures. He was at the appropriate grade level for his age and
maintained suitable grades and scores on standardized tests; there was
no evidence of any learning disability or issue. He was able to present
himself calmly and with poise during the examination and responded to
questions in a succinct manner.
It also indicated that during the in camera examination, E.T. stated
that he and Respondent traveled to the United States for a two-week
vacation with the intent to return to Germany. Upon being informed by
his brother via an online computer communication that his father was
reportedly upset to learn that E.T. was in the United States and that
his father threatened to seek E.T.'s suspension from school, E.T.
decided he would prefer to remain in the United States. E.T. made this
decision, he said, approximately one week into the vacation (and one
week prior to the
planned return). He did so by talking about his decision with his
mother, grandparents, brother, and sister's boyfriend. During the in
camera examination, E.T. stated that it would be in his "best interest"
to remain in the United States, phrasing associated with the "best
interest of the child" analysis associated with the underlying child
custody determination, and he stated his belief that he could return to
the United States upon turning sixteen. These responses indicated that
he had been presented with some legal context for his custody situation.
Respondent had maintained custody of E.T. since separating from
Petitioner, yet the court ordered Petitioner to take his physical
custody the day prior to the in camera examination (and subsequently to
abstain from any alcohol use). While the source of any preparation could
not definitively be known, the court found that E.T.'s decision was
likely influenced at least in part by his custodial presence with his
mother for the nearly one year period since the separation.
The court found that that E.T.'s decision reflected the product of
limited analysis.
For example, his primary reason for deciding to stay in the United
States was his online computer communication with his brother, who
reportedly stated that Petitioner, upon learning that E.T. was taken to
the U.S., said he would seek to have E.T. suspended from his
German school. This contradicted Petitioner's verified pleadings, which
indicate that he knew and approved E.T.'s departure from Germany for the
U.S.; it was the wrongful retention (that had not then occurred) to
which Petitioner objected. Moreover, E.T. claimed he gets better grades
in his new school in Greensboro, yet the school days were very limited
in the roughly three to four week period E.T. was enrolled. Further, E.T.
cited his career opportunities in the U.S., yet he conceded that the
school program offered toward that end in which he was engaged at his
German school, ROTC, was not currently available at his new school in
Greensboro. In the end, it appeared that E.T.'s decision to remain here
may be influenced in large measure by the fact that his mother, with
whom he wished to stay, was staying with a boyfriend in Greensboro. The
court took E.T.'s wishes into account but concluded that his return to
Germany was appropriate in this case. He indicated more of a preference
to remain in the United States rather than an objection to being
returned to Germany. During the in camera examination, E.T. testified
several times that he would "prefer" to stay here but expressed no
strong objection to returning to Germany.
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