Family Law

SMEDLEY v. SMEDLEY, NO. 14-1414

Decided: November 5, 2014

The Fourth Circuit held that the district court properly afforded comity to a German court’s ruling in a custody dispute between a German mother, living in Germany with the couple’s two children, and an American father, who refused to return the children to Germany after their visit to North Carolina.

The Smedleys, Mark and Daniela, met and married in Germany, where Mark was stationed in the Army. Daniela was a German citizen. The couple had two children, both born in Germany. In 2010, the family moved to North Carolina after Mark was transferred. Shortly thereafter, Daniela returned to Germany with the two children in contemplation of divorce. Ultimately, Daniela decided to remain in Germany with the children. Mark obtained a temporary custody order from a North Carolina court, and sought to have the order enforced in Germany under the Hague Convention. The German court refused to enforce the temporary order, finding that Mark had consented to the children’s move to Germany, and thus the removal provision under the Hague Convention was inapplicable. Two years later, the children visited their father in North Carolina for the summer. In contravention of his signed agreement to return the children at the end of the summer, he refused, and enrolled the children in school in North Carolina. Daniela filed a Hague petition in U.S. District Court, seeking to enforce the custody decision of the German court. The district court afforded comity to the German court’s decision, determined that Daniela’s removal of the children when she initially moved back to Germany was not wrongful, and awarded her physical custody.

Mark averred that the district court erred when it afforded comity to the German court’s decision because the German court misinterpreted the Hague Convention and did not meet the minimum reasonableness standard. Under the Hague Convention, when a parent wrongfully removes a child from his or her habitual residence, the parent must return the child unless the parent can prove that a defense applies. See Hague Convention arts. 12, 13. Removal is wrongful if it breaches a parent’s custody rights under the law of the child’s habitual residence. Id. art. 3. Article 13 provides defenses for wrongful removal, including a parent’s consent or ratification of the child’s removal; a grave risk that return of the child would cause physical or psychological harm; or the child does not want to return and is mature enough to make such a decision. Id. art. 13. Proof of one of these defenses makes return of the child discretionary. Id. The German court determined that Daniela did not wrongfully remove the children because there was sufficient evidence that Mark consented to her move to Germany with the children. Notably, the German court did not begin by determining whether the children’s habitual residence was Germany or North Carolina.

The Court reasoned that comity was proper for the German court’s decision. First, in response to Mark’s averment that the German court misinterpreted the Hague Convention by considering defenses to removal without first establishing the children’s habitual residence, the Court stated that the Hague Convention does not create such a requirement. Moreover, the Court reasoned that whether the habitual residence was determined to be Germany or North Carolina, the outcome would likely have been the same. Second, the Court concluded that the German court’s finding that Mark consented was at least minimally reasonable, despite the contradictory evidence, because the German court found Daniela’s testimony more credible. As comity was properly granted, the Court affirmed the district court’s ruling.

Full Opinion

Amanda K. Reasoner

SMEDLEY v. SMEDLEY, NO. 14-1414

Decided: November 5, 2014

The Fourth Circuit held that the district court properly afforded comity to a German court’s ruling in a custody dispute between a German mother, living in Germany with the couple’s two children, and an American father, who refused to return the children to Germany after their visit to North Carolina.

The Smedleys, Mark and Daniela, met and married in Germany, where Mark was stationed in the Army. Daniela was a German citizen. The couple had two children, both born in Germany. In 2010, the family moved to North Carolina after Mark was transferred. Shortly thereafter, Daniela returned to Germany with the two children in contemplation of divorce. Ultimately, Daniela decided to remain in Germany with the children. Mark obtained a temporary custody order from a North Carolina court, and sought to have the order enforced in Germany under the Hague Convention. The German court refused to enforce the temporary order, finding that Mark had consented to the children’s move to Germany, and thus the removal provision under the Hague Convention was inapplicable. Two years later, the children visited their father in North Carolina for the summer. In contravention of his signed agreement to return the children at the end of the summer, he refused, and enrolled the children in school in North Carolina. Daniela filed a Hague petition in U.S. District Court, seeking to enforce the custody decision of the German court. The district court afforded comity to the German court’s decision, determined that Daniela’s removal of the children when she initially moved back to Germany was not wrongful, and awarded her physical custody.

Mark averred that the district court erred when it afforded comity to the German court’s decision because the German court misinterpreted the Hague Convention and did not meet the minimum reasonableness standard. Under the Hague Convention, when a parent wrongfully removes a child from his or her habitual residence, the parent must return the child unless the parent can prove that a defense applies. See Hague Convention arts. 12, 13. Removal is wrongful if it breaches a parent’s custody rights under the law of the child’s habitual residence. Id. art. 3. Article 13 provides defenses for wrongful removal, including a parent’s consent or ratification of the child’s removal; a grave risk that return of the child would cause physical or psychological harm; or the child does not want to return and is mature enough to make such a decision. Id. art. 13. Proof of one of these defenses makes return of the child discretionary. Id. The German court determined that Daniela did not wrongfully remove the children because there was sufficient evidence that Mark consented to her move to Germany with the children. Notably, the German court did not begin by determining whether the children’s habitual residence was Germany or North Carolina.

The Court reasoned that comity was proper for the German court’s decision. First, in response to Mark’s averment that the German court misinterpreted the Hague Convention by considering defenses to removal without first establishing the children’s habitual residence, the Court stated that the Hague Convention does not create such a requirement. Moreover, the Court reasoned that whether the habitual residence was determined to be Germany or North Carolina, the outcome would likely have been the same. Second, the Court concluded that the German court’s finding that Mark consented was at least minimally reasonable, despite the contradictory evidence, because the German court found Daniela’s testimony more credible. As comity was properly granted, the Court affirmed the district court’s ruling.

Full Opinion

Amanda K. Reasoner

Hensley v. Koller, No. 12-2147

Decided July 3, 2013

The Fourth Circuit Court of Appeals reversed the district court’s denial of the parties’ cross-motions for summary judgment. A minor brought this class action to challenge South Carolina’s reduction of monthly adoption assistance benefits asserting that its conduct violated the Adoption Assistance and Child Welfare Act, 42 U.S.C. § 670 et seq. (2006) (“the Act”).

The South Carolina Department of Social Services (“DSS”) provides adoption assistance subsidies and foster care maintenance payments pursuant to federal funding authorized by the Act. To receive funding under the Act, a state must develop a plan for a subsidy and maintenance program and must obtain approval of that plan by the United States Secretary of Health and Human Services. The Act sets forth specific requirements governing foster care maintenance payments and adoption assistance payments. For adoption assistance payments, a state with an approved plan “shall enter into adoption assistance agreements with the adoptive parents of children with special needs.” The adoption assistance payments are determined by the particular circumstances, but in no case may the amount exceed the foster care maintenance payment, which would have been made had the child been in a foster family home.

In 1997, BLH, a minor child, was placed in foster care. The foster parents received monthly foster care maintenance payments of $675, which included an upward adjustment because BLH was a special needs child. In 1999, the foster parents applied to be BLH”s adoptive parents. They sought to convert the foster care maintenance payment into an adoption assistance subsidy. The foster parents entered into an Adoption Subsidy Agreement under which DSS agreed to furnish them monthly adoption assistance payments of $675. Two months later, a state court declared them the adoptive parents of BLH. They received the monthly $675 payments for three years. In 2002, DSS began reducing by twenty dollars all monthly foster care maintenance payments and adoption assistance subsidies. In 2004, DSS rescinded the twenty-dollar reduction to foster care maintenance payments, but did not rescind the reduction to adoption assistance subsidies. Thus, for BLH, the payments remained at $655 per month.  BLH filed in state court a class action against Lillian Koller, individually and in her official capacity as director of DSS. Koller removed the caseto federal court. BLH added former directors of DSS to their complaint (collectively, with Koller, “the Directors”). The district court denied the Directors’ motion for summary judgment.

On appeal, the Directors asserted qualified immunity from suit. The qualified immunity inquiry asks (1) whether an official violated a federal right, and (2) whether that right was clearly established at the time the official acted.

Here, the Fourth Circuit determined whether § 673 (a)(3) creates a privately enforceable right to parental concurrence, which the Directors may have violated. The Supreme Court in Blessing v. Freestone laid out a three-factor test to determine whether a particular statutory provision gives rise to a federal right privately enforceable under 42 U.S.C. § 1983. For the first-factor, the court addressed whether Congress intended § 673 (a)(3) to benefit the plaintiff. Because the Act provides that the adoption assistance payments are determined through agreement and may be readjusted periodically, it does apply to the plaintiff. For the second factor, the court addressed whether the asserted right is not “so vague and amorphous that its enforcement would strain judicial competence.” The court found that the term “concurrence” was not too vague. § 673 (a)(3)’s requirement that a state may not readjust an adoption assistance payment amount without an adoptive parent’s “concurrence,” clearly means agreement or assent. For the third factor, the court addressed whether the statute unambiguously imposes a binding obligation on the States, which is demonstrated by mandatory, rather than precatory terms. The court found that there was no ambiguity as to what statues must do under § 673 (a)(3) as a condition of receiving federal funding under the Act. Therefore, § 673 (a)(3) does give rise to a privately enforceable federal right; however, only violations provide for recovery. The language of the statute prohibits adoption assistance subsidies that exceed foster care maintenance payments. As a result, § 673 (a)(3) establishes a right to parental concurrence in subsidy readjustment determinations except when the subsidy must be reduced due to reductions in foster care maintenance payments. Here, the subsidy had to be reduced due to South Carolina’s reduction in all foster care maintenance payments. The State’s failure to do so would have violated federal law. For, under § 673 (a)(3), a failure to reduce BLH’s adoption assistance payment would have resulted in a payment “exceeding the foster care maintenance payment” she would have received had she remained in foster care. Therefore, the plaintiffs cannot establish that the Directors violated the plaintiffs’ rights under the Act and the Directors are entitled to qualified immunity.

Full Opinion

– Sarah Bishop

Wilson v. Wilson, No. 12-1835

Decided: May 24, 2013

The Fourth Circuit affirmed the United States District Court for the Eastern district of Virginia.

In May 2009, Malcom White (“Mr. White”) and Soudabeh White (“Ms. White”) were married in Switzerland. Soon thereafter, they had a son. Unfortunately, in June 2010 they were separated and legal proceedings regarding custody rights were initiated. In October 2010, the Swiss Court of First Instance of Geneva (“Swiss Court”) granted full custody of the child to Ms. White (“2010 Order”). Mr. White was granted visitation rights. This action stemmed from Ms. White’s subsequent decision to leave Switzerland for the United States with the minor child in April 2011. Mr. White was not notified prior to the day of departure, instead Ms. White notified him via voicemail three days later. The voicemail indicated that Ms. White had taken their son on a “holiday” in the United States, although Ms. White subsequently claimed that she came to the United States to visit her sister and to seek medical care for her son. At the time of the departure, court-appointed psychologists in Switzerland were conducting an analysis of the parties and the child to assess custody arrangements. In a preliminary report issued in July 2011—three months after the departure—it was suggested that Ms. White suffered from psychological problems, which affected her ability to properly care for her son, and that the court should transfer custody of their son to Mr. White if her condition did not improve within six months. Subsequently, in September 2011 the Swiss Court issued an emergency ruling prohibiting Ms. White from leaving Switzerland with the child; however, in December 2011, the same court found that it did not have jurisdiction because Switzerland was no longer Ms. White’s usual place of residence. In February 2012, the Swiss tutelary court in Geneva also found that it lacked jurisdiction but noted that Ms. White had sole custody at the time of departure and could therefore remove the child from Switzerland without authorization. On April 6, 2012, Mr. White filed this petition for return under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) and the International Child Abduction Remedies Act. The district court denied the petition for return and Mr. White appealed. Following oral argument, Mr. White filed an order of the Swiss Court dated March 15, 2013 (“2013 Order”). In that order, the Swiss Court related that an appellate court had found that Geneva courts did in fact have jurisdiction to rule on protective measures for the child and, although Ms. White remained in the United States, adjusted its earlier custody arrangements to grant Mr. White custody of and parental authority over the child.

In conformance with the Convention, because Switzerland was the child’s habitual residence before his removal, Swiss law governed the determination of the legal issues presented. In his amended appellate brief, Mr. White offered three reasons why the district court erred in refusing to find that Ms. White wrongfully removed the child in violation of the Convention. Addressing Mr. White’s first contention, the Fourth Circuit found that his parental authority rights alone did not provide a basis for a wrongful removal action under the Convention as the Swiss Supreme court has held that a parent who holds exclusive custody is entitled to move abroad with the children without having to obtain authorization of the other parent. Next the court addressed Mr. White’s second contention that the removal was intended to compromise his relationship with the child and threatened the child’s well being, constituting an abuse of rights under Swiss law. The court found that, because the record indicated that Ms. White had legitimate reasons for leaving Switzerland, including seeking medical treatment for the child in the United States, the removal did not constitute an abuse of her rights under Swiss law. Lastly the court found that Mr. White’s reliance on the 2013 Order was misguided as the 2010 Order controlled the case because it was in effect at the time of removal controlled. Therefore, because Ms. White had sole custody over the child pursuant to the 2010 Order, she was free remove the child unilaterally under Swiss law.

Full Opinion

-W. Ryan Nichols

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