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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