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Domestic Relations — Children May Stay in Germany With Mom

Smedley v. Smedley (Lawyers Weekly No. 14-01-1051, 17 pp.) (Duncan, J.) No. 14-1414, Nov. 5, 2014; USDC at Wilmington, N.C. (Fox, J.) 4th Cir.

Holding: Based on testimony from a mother that the father consented to their two children returning to the mother’s native Germany, a North Carolina federal district court did not err in according comity to a German appellate court’s decision, and in granting the mother’s Hague petition and ordering the children to return to Germany; the 4th Circuit affirms.

Mark and Daniela Smedley married in 2000 in Germany, where Mark was stationed with the U.S. Army. Their children were born in 2000 and 2005. Except for one year spent in Tennessee, the family lived in Bamberg, Germany, until August 2010, when Mark was transferred to North Carolina. He bought a home and the family moved there, but the mother later returned to Germany. The couple ultimately was divorced under German law in 2012.

Since the two Smedley children left North Carolina with their mother, they have alternately lived with only one of their parents. First, their mother took them to her native Germany, where they stayed with her. Later, during a one-month visit to North Carolina to see their father, the father decided to keep them. In each instance, the parent not housing the children petitioned under the Hague Convention on the Civil Aspects of International Child Abduction, a treaty designed to return children wrongfully removed from their “habitual residence.”

A German court denied the father’s petition, and a German appellate court affirmed, so the mother did not have to return the children to North Carolina. After the father decided to keep them following their visit, a North Carolina federal court accorded comity to the German appellate court’s decision. It granted the mother’s Hague petition, ordering the children’s return to Germany. On appeal, the father argues that the district court erred in according comity. We affirm.

We have yet to decide whether to review comity decisions de novo or for abuse of discretion, and we need not do so here. Under either standard, the district court properly extended comity because the German court’s decision neither clearly misinterpreted the Hague Convention nor failed to meet a minimum standard of reasonableness.

The father’s contention that the German court would necessarily have found North Carolina to be the children’s habitual residence is pure conjecture. He cites no authority for the proposition that a court must decide habitual residence before addressing defenses. Nor is there anything in the text of the Hague Convention that requires a court to address Article 3 first. The Hague Convention does not set out a roadmap, only principles. Here, the habitual residence question was not dispositive or even helpful, as the court’s conclusion did not turn on habitual residence or custodial rights.

The German court found credible the mother’s testimony that the father knew she went to Germany with the intent of staying there with the children and that he consented to the move in the event she did not change her mind. Though the court made such a determination with the father present only through his lawyer, the decision was at least minimally reasonable. The father initially told the German court that he first learned of the mother’s decision to stay in Germany on Aug. 10, 2011, the day before the scheduled return flight. But he later admitted that nine days earlier, on Aug. 1, he had authored a Facebook post, which he had since removed, that read in part, “Please come back to me. I am really taking this hard right now.”

This post was consistent with the mother’s story that she made her decision to stay in Germany prior to leaving North Carolina, while agreeing to reconsider.

Because the mother’s testimony was detailed and corroborated, and the evidence did not show that the father’s consent was for only temporary travel, the German court’s decision was at least minimally reasonable.

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