Bader v. Kramer ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ULRICH G. BADER, 
Petitioner-Appellant,
v.  No. 05-1480
SONJA KRAMER,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-04-375)
Argued: March 14, 2006
Decided: April 17, 2006
Before SHEDD and DUNCAN, Circuit Judges, and
James P. JONES, Chief United States District Judge
for the Western District of Virginia, sitting by designation.
Reversed and remanded by published opinion. Judge Shedd wrote the
opinion, in which Judge Duncan and Judge Jones joined.
COUNSEL
ARGUED: Michael Alexander Johnson, ARNOLD & PORTER,
L.L.P., Washington, D.C., for Appellant. Laurence James Tracy, Falls
Church, Virginia, for Appellee. ON BRIEF: Thomas Holsten,
ARNOLD & PORTER, L.L.P., Washington, D.C., for Appellant.
2 BADER v. KRAMER
OPINION
SHEDD, Circuit Judge:
Ulrich Bader filed a petition under the International Child Abduc-
tion Remedies Act ("ICARA"), 42 U.S.C. §§ 11601 et seq., seeking
the return of his daughter ("C.J.B.") to Germany. Bader alleged that
his ex-wife, Sonja Kramer, violated the Hague Convention on Civil
Aspects of Child Abduction ("Hague Convention"), Oct. 25, 1980,
T.I.A.S. No. 11,670, 19 I.L.M. 1501, by taking C.J.B. to live in the
United States. The district court concluded that Bader was not entitled
to relief under the Hague Convention because he lacked sufficient
custody rights. For the following reasons, we reverse and remand for
further consideration.
I.
Bader is a citizen of Germany, and Kramer is a dual citizen of Ger-
many and the United States.1 Bader and Kramer were married in Ger-
many in 1998. Their only child, C.J.B., was born in 1999 in Germany.
From the date of C.J.B.’s birth until Kramer left Germany on April
4, 2003, Bader, Kramer, and C.J.B. all resided continuously in Ger-
many.
In August 2000, Bader and Kramer separated. At all times after
separation, C.J.B. resided with Kramer. Kramer was the sole source
of financial support for C.J.B.
In November 2000, while employed as a foreman at a United States
Army Munitions Depot, Bader was arrested for violations of the War
Weapons Control Act and the Explosives Act. Bader was ultimately
convicted of unauthorized transfer of the actual control of war weap-
ons, unauthorized transportation of war weapons, and unauthorized
handling of explosive substances. A German court sentenced him to
a term of 42 months of incarceration and suspended his driving privi-
leges.
1
We present the facts as found by the district court in its opinion after
trial.
BADER v. KRAMER 3
During Bader’s incarceration, C.J.B. continued to reside with
Kramer and was supported by her. Bader received visits from C.J.B.
accompanied by Kramer during the first six months of his incarcera-
tion.
Bader and Kramer were legally divorced in June 2002. C.J.B. con-
tinued to reside with Kramer and was supported financially by her
subsequent to the divorce.
Bader was released from prison on December 17, 2002, and was
placed on probation for a period of three years. That same day,
Kramer and C.J.B. traveled to the United States with Bader’s consent.
They returned to Germany on January 3, 2003.
On January 9, 2003, Bader picked up C.J.B. from her school for an
eight-day family ski vacation. On January 16, 2003, Kramer filed a
petition in a German court seeking sole custody, and on February 6,
2003, Bader filed a petition seeking sole custody. On March 20, 2003,
the German court ruled on the petitions, setting forth a visitation
schedule for Bader and granting Kramer an award of child support in
the amount of 177 euros per month.
On April 4, 2003, Kramer traveled to the United States with C.J.B.
Kramer did not inform Bader of her intent to do so, and she did not
have his consent. Kramer and C.J.B. have remained in the United
States since that date.
In Germany, Bader filed a petition for sole custody in June 2003.
In October 2003, Bader filed a Request for Return of Child under the
Hague Convention with the Central Authority of Germany. The Ger-
man Central Authority sent a letter to the American Central Authority
in November 2003 stating that when Bader and Kramer "were
divorced, no decision about the rights of custody was issued. So both
still have parental responsibility for the child pursuant to Section 1626
of the German Civil Code (BGB)." J.A. 127-28. A German court
granted him sole custody in an order dated December 4, 2003.
Bader then filed this petition in the district court under the Hague
Convention. In a letter to Bader’s counsel, Kramer stated that Bader
4 BADER v. KRAMER
"was authorized visitation/custody rights (which he rarely exercised)."
J.A. 161. Kramer stated in district court filings that the German court
order "set conditions of visitation." J.A. 672. Additionally, at trial
before the district court, Kramer admitted that when she left Germany
with C.J.B. after the March 20, 2003, order she "shared joint custody
over" C.J.B. with Bader and that she was "disappointed" with the pro-
visions of the order. J.A. 905. The district court denied Bader any
relief on his petition after finding that he did not have cognizable
rights of custody under the Hague Convention. Bader now appeals.
II.
The Hague Convention, a treaty to which the United States is a sig-
natory party, is by its terms intended "to secure the prompt return of
children wrongfully removed to or retained in any Contracting State;
and . . . to ensure that rights of custody and of access under the law
of one Contracting State are effectively respected in the other Con-
tracting States." Hague Convention art. 1. The Hague Convention
provides a mandatory remedy of return that is meant both "to preserve
the status quo" with respect to child custody and "to deter parents
from crossing international boundaries in search of a more sympa-
thetic court." Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001)
(internal quotations and citation omitted). The United States imple-
mented the Convention’s terms by statute in ICARA.
In order to secure the return of an abducted child, a petitioner must
prove by a preponderance of the evidence that "the child has been
wrongfully removed" within the meaning of the Hague Convention.
42 U.S.C. § 11603(e)(1). Under the Hague Convention, a petitioner
can establish that removal of a child is "wrongful" where: (1) the
child was "habitually resident" in the petitioner’s country of residence
at the time of removal, (2) the removal was in breach of the petition-
er’s custody rights under the law of his home state, and (3) the peti-
tioner had been exercising those rights at the time of removal.
Humphrey v. Humphrey, 434 F.3d 243, 246 (4th Cir. 2006). Addition-
ally, the Hague Convention distinguishes between "rights of custody"
— which are necessary to support a claim of wrongful removal —
and mere "rights of access." See Cantor v. Cohen, ___ F.3d ___, 2006
Westlaw 700926, *4 (4th Cir. 2006) (stating that under the Hague
Convention a petitioner "has no right to initiate judicial proceedings
BADER v. KRAMER 5
for access claims"). Article 5(a) of the Hague Convention provides
that "rights of custody" "shall include rights relating to the care of the
person of the child and, in particular, the right to determine the child’s
place of residence." Article 5(b) of the Hague Convention provides
that "rights of access" "shall include the right to take a child for a lim-
ited period of time to a place other than the child’s habitual resi-
dence."
Upon a showing of wrongful removal, return of the child is "re-
quired" unless the respondent establishes one of four defenses. Miller,
240 F.3d at 398. Two of the defenses must be supported by clear and
convincing evidence: (1) that return would expose the child to a
"grave risk" of "physical or psychological harm or otherwise place
[the child] in an intolerable situation" and (2) that return of the child
would not be permitted by "fundamental principles of the United
States relating to the protection of human rights and fundamental free-
doms." Id. (internal quotations omitted). The other two defenses may
be supported by a preponderance of the evidence: (1) that the petition
for return was not filed within one year of the removal and the child
is now well-settled in another country, and (2) that the petitioner was
not actually exercising his custodial rights at the time of the removal
or had consented to or acquiesced in the removal. Id. at 399.
In an action under ICARA and the Hague Convention, we review
the district court’s findings of fact for clear error, while its conclu-
sions regarding principles of domestic, foreign, and international law
are reviewed de novo. Miller, 240 F.3d at 399.
III.
Bader contends that the district court erred in concluding that he no
longer retained sufficient rights of custody in C.J.B. within the mean-
ing of the Hague Convention. We agree.
The district court recognized — and the parties do not dispute —
that German law presumptively confers, upon both parents, joint cus-
tody of the child until a competent court enters a contrary order. The
district court then concluded that the March 20, 2003, order by the
German court setting forth a visitation schedule "functioned to alter
the presumption of joint custody." J.A. 995. We disagree.
6 BADER v. KRAMER
In Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003), we
addressed the similar question whether a Scottish court had issued an
order modifying a parent’s right to custody. We determined that a
divorce decree in Fawcett did just that because it contained a "Resi-
dence Order." Id. at 499. Specifically, the "Residence Order" gave
one parent "the exclusive power to determine [the child’s] residence,
thereby necessarily depriving [the other parent] of that same right."
Id. Counsel even conceded that the petitioning parent had no right to
determine the child’s residence within Scotland and that the right
rested exclusively with the other parent. Id. Additionally, we cited a
Scottish case providing that a parent loses her "rights of custody" if
the other parent is awarded a residence order. Id. Although Scottish
law prohibited the abducting parent from removing the child from
Scotland, i.e., the equivalent of a ne exeat clause, we found that this
Scottish law merely allowed "a parent with access rights to impose a
limitation on the custodial parent’s right to expatriate his child. . . .
This hardly amounts to a right of custody." Id. at 500. Thus, not with-
standing this ability to limit the expatriation of his child, the petition-
ing parent in Fawcett did not have "rights of custody" within the
meaning of the Hague Convention because the divorce decree
deprived one parent of her right to determine the child’s place of resi-
dence. Id. at 499-500.
Here, the district court determined that Bader’s visitation rights
were inferior to the ne exeat rights that were insufficient to support
the petition in Fawcett. Although the district court recognized that
there was no explicit Residence Order as in Fawcett, it failed to rec-
ognize that Bader’s rights of custody were never modified by the Ger-
man court’s March 20, 2003, order, which merely altered visitation
rights. While the German court order delineated a schedule of visita-
tion rights that clearly affect Bader’s rights of access, it made abso-
lutely no mention of modifying his rights to custody. The parties have
not revealed any authority to suggest that rights of access and rights
of custody are mutually exclusive, such that a modification of one
eliminates the other. Indeed, the Eleventh Circuit has recognized a sit-
uation under the Hague Convention where a "French divorce decree
awarded . . . visitation and lodging rights to the mother, and joint
legal custody to both parents." Bekier v. Bekier, 248 F.3d 1051, 1052
(11th Cir. 2001). Thus, it is entirely possible for courts to modify the
visitation rights of one parent without disturbing the underlying joint
BADER v. KRAMER 7
custody of both parents. In the absence of any order removing Bader’s
ability to determine C.J.B.’s residence, he continued to retain joint
custody over C.J.B.
The parties seemed to understand as much. It is undisputed that
before the March 20, 2003, order both parents shared joint custody
over C.J.B. Indeed, that order was a response to Kramer’s petition for
sole custody. Further, as we have catalogued above, Kramer has
repeatedly acknowledged — both before and during trial — her
understanding that after March 20, 2003, Bader retained rights of cus-
tody. Likewise, after March 20, 2003, the German Central Authority
issued a letter stating that "both [parents] still have parental responsi-
bility for the child" under the German Civil Code providing for joint
custody. J.A. 127. Finally, the German court’s subsequent award of
sole custody to Bader in its order of December 4, 2003, suggests that
Bader did retain some existing custodial rights over C.J.B. at the time
of removal.
For these reasons, it is clear that Bader retained at least joint cus-
tody over C.J.B. because no competent German court has entered an
order granting Kramer sole custody.2 Thus, we remand the case to the
district court for an expeditious determination of whether Bader was
exercising those custody rights and whether any defenses apply under
the Hague Convention.3
2
In support of its conclusion that Bader did not have "cognizable cus-
todial rights" under the Hague Convention, the district court further
stated that Kramer was C.J.B.’s source for "pecuniary and emotional sup-
port" and discussed Bader’s limited exercise of visitation rights. J.A.
997. This inquiry is irrelevant to whether a competent German court has
issued an order contrary to the presumption of joint custody. While such
a determination may be relevant to whether Bader has "exercised" his
custody rights, the district court did not reach that inquiry.
3
Although Bader urges us to entertain these issues, we believe it better
to remand for the district court to consider them in the first instance. We
are confident that the district court will decide these issues in an expedi-
tious manner.
8 BADER v. KRAMER
IV.
Accordingly, we reverse the judgment of the district court and
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED