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In Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass, 1994),
Manfred was a German citizen who met his wife Catherine, a U.S. citizen,
while studying at the University of Massachusetts in Amherst. They
married and took up residence in Germany in November, 1987. They had
three children. All three children lived in Germany their entire lives.
On November 25, 1993, Catherine took the children to Amherst,
Massachusetts for a visit with her parents. Originally, her plan was to
stay in the United States for six weeks. But after she arrived to the
United States, she had second thoughts about returning to Germany with
her children. On January 12, 1994, Catherine contacted a German neighbor
and asked her to tell Manfred that she had decided to stay in the
Amherst area with the children and would not return to Germany.
At first, Manfred attempted to reconcile his problems with Catherine.
He came over to the United States in mid-February to convince her to
return home with the children. After learning that Catherine did not
intend to return to Germany with the children, Manfred sought relief in
the German courts. On April 6, 1994, the German Family Court issued a
ruling that Catherine had violated the Hague Convention by wrongfully
retaining the children in the United States. Manfred then petitioned for
relief under the Hague Convention.
The court was compelled to grant petitioner's request to return to
Germany with the three children. There was no dispute that, except for a
few visits to Catherine's parents in the United States, the three
children had lived in Germany. All three children were born in Germany
and attend school there. The children were "habitually resident" in
Germany immediately prior to their removal by Catherine. Moreover, prior
to their removal, petitioner was exercising his lawful rights of custody
over the children. The German Civil Code gives both parents joint
custody of the children. Because the children were habitually resident
in Germany and because Manfred was entitled to joint custody, they must
return to Germany absent some exception.
Respondent argued that even if petitioner had met his initial burden
of proof, the children should not be returned to Germany because
petitioner acquiesced to the retention of the children in the United
States. To invoke this exception, respondent must prove by a
preponderance of the evidence that petitioner consented to or
subsequently acquiesced to their retention. Even if one of the
exceptions is found applicable, the court is not required to refuse a
return order.
In support of her position, Catherine offered the following evidence.
First, during an argument sometime in August or September of 1993,
Manfred told her to "pack up and go with the children back to the United
States." Second, Catherine claims that when she had resided in Amherst
for about one month, Manfred wrote to her and informed her that he would
travel to the United States to talk about reconciliation. During this
period, Manfred wrote to Catherine and expressed an interest in solving
their marital problems. Catherine claimed that in these letters Manfred
acquiesced to the children's retention in the United States and that he
reaffirmed this position when he visited in February of 1994. According
to Catherine, Manfred wanted to reunite the family and agreed that she
and the children could stay in Amherst during the period of attempted
reconciliation.
Even accepting Catherine's position that Manfred consented to her
taking the children to the United States for a limited period, it did
not follow that Manfred acquiesced to the children's permanent retention
in the United States once he realized that his marriage was
irreconcilable. The sequence of events and actions taken by Manfred
strongly supports the conclusion that Manfred did not agree that the
children remain in the United States for an indefinite period of time.
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