This entry summarizes the relatively recent case of Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008). The court below had granted a return. On appeal, Mother argued that she had not wrongfully removed the children and that the Hague Convention violated equal protection.
Mother, a US citizen, and Father, a German national, had lived in Germany where that had two children in 1999 and 1998. They separated and agreed to share time with their kids separately. In 2006, Mother saw some photographs that Father had taken of the sons. Apparently, the boys were playing naked in these photographs and Mother objected to the photo's nature.
Later in 2006, Father sought full custody of the sons. A court appointed social worker in German advised against sole custody of the children. One son had some ear, nose, throat problems. Mother and Father argued over the appropriate medical action to take.
Then, Mother sought to suspend or supervise Father's parent-child contact. The court ordered a psychological evaluation, and the shrink recommended continued contact. Then the German court issued a temporary order obliging the parents not to fight in front of the kids and finding that Father was not a pedophile.
November 12, 2006, the German court ordered Christmas break visitation and forbade Mother from taking the sons to the US. In January 2007, she violated that order and took the boys to the States. Father filed his Hague petition that month in the States. And the German court awarded him full custody in February.
Mother's argued that the District Court should deny the return because of the 13(b) grave risk of harm exception. The court determined that the removal was wrongful and that Mother did not show the grave risk of harm by clear and convincig evidence, as required by ICARA.
First off, Father tried to dismiss the appeal as moot because the German court had given him custody. The court pointed out that the appeal was not moot because the controversy was over the return, not over custody.
However, Mother's arguments did not get her anywhere. First, the court upheld the ruling that the removal was wrongful. Under German law, when a child is born of a marriage, parents have joint custody. Nor did her belief that the son needed medical treatment make the removal any less wrongful under the Convention.
Second, Mother tried to argue that by not applying the best interests of the child standard, the court had violated equal protection. She did not bring this up at trial so it was useless on appeal and further the court determined that the argument was "patently without merit" because Hague Convention cases are not custody cases.
Finally, the court addressed the issue of the child's right to be heard. Though
Under Article 13 of the Hague Convention, the court may 'refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [the child's] views,'
the court noted that
No part of the Convention requires a court to allow the child to testify or to credit the child's views, so the decision rests within the sound discretion of the trial court.
Thus, based on the psychologist who advised the District Court not to put the child on the stand, the court respected the lower court's discretion. In a last-ditch effort, Mother objected to the lower court's orders for Father to take specific undertakings (i.e., drop criminal charges against Mother in Germany) upon the sons' return, but the court didn't buy her argument. Thus, the lower court's judgment was affirmed.