Family Court of Westerburg
29 Sept 1992
Docket No. 4 F 303/9@
B v. B. WMHFN -1
Petition for Reqeust for Return under The Convention on the Civil
Aspects of International Child Abduction, done at the Hague on 25
Oct 1980 [The Convention]
The Request for Return of the petitioner is denied.
Parties are husband and wife living separte and apart. They lived
until the separation in Texas, USA . The mother left Texas
together with the child on 12 April 1992 and stays with her in the
Feveral Republic of Germany.
Petitioner has rquested that the court order the immediate return
of the child to the USA and to order restrictive measures in order
to achieve the return.
The mother has objected to this Request for Return.
She alleges that it would be irresponsible to separate the child
now aged 15 months from her and to bring it against her will to
the USA.
The Social Welfare Officer of Mondtabur has made an investigation
of the circumstances at the place of ressidence. The have found
that there is danger of severe damage and consequences for the
child's psyche if he were to be separated from the mother and if
the court would order as requested by the father.
Thus the petition based on Art. 12 of The Convention was denied.
The court does not decide that the mother acted unilaterally and
that her actions violated the father's rights of custody by moving
to Germany. Although this unlawful state is perpetuated, it is in
the best interests of the child to deny this Request for Return.
The court bases its decision on the principle of Sec. 1632 [Claim
for the Surrender of the Child; Regulation of his Association;
Removal from the Care of a Person] of the Civil Code in connection
with Sec. 1666 [Jeopardy to the Welfare of the Child]. The best
interests of the child which the court stresses most of all demand
to let the current state remain. The court refers to the report of
the Social Welfare Office.
The Social Welfare Office has held that there is a intensive bond
between mother and child and that there is the danger of severe
disturbances and consequences for the child's psyche to be feared
if the child is taken away from its current familiar envjronment.
Obviously the mother is the closest person and especially with
children in the age of breast-feeding and of very low age it would
be irresponsible to bring the child back to the USA without the
mother being in close proximity to the child. In questions
regarding children, be it in questions of family law or
guardinaship law, the child's best interests are of utmost
importance. Concerns of formal jurisprudence have to step back if
in conflict with the best interests of the child - according to
the opinion of the court. WMHFN -2
It has to be noted that the child -- according to the Social
Welfare Office's report -- is being cared for properly by the
mother in its current environment.
Contributed by:
Dr. Donald J. Cramer
Rechstsanwalt
Bruderstrasse 2
8000 Munchen 22
Federal Republic of Germany
--------------------
1. All footnotes were written by William M. Hilton, CFLS
2. This decision would appear to be contra to the objects of The
Convention as stated in Article 1: "The objects of the
present Convention are -- (a) to secure the prompt return of
children wrongfully removed to or retained in any contracting
State; and (b) to ensure that rights of custody and of
access under the law of one Contracting State are effectively
respected in the other Contracting States." Under Texas law,
V.T.C.A. Sec. 12.04, the mother and father have equal rights
of custody and control of the minor child. Accordingly the
removal of the child from Texas would, per se, be a "Wrongful
Removal" under Art. 3 of The Convention. Further, if the
reports are correct that other FRG courts are allowing
children as young as six and seven the right to refuse to
return under Art. 13, last section, then it would seem that a
child would never be returned: If of very young age then
they would be too young, if of any other age and refused to
return then they would be old enough to invoke that part of
Art. 13. The solution would appear to be that taken in
Korowin vs Korowin (Dist. Court of Horgen, Switzerlan 1992)
where it was ordred that the child, of similar years, was to
be returned with the mother who could care for the child
pending an application to the courts in the United States.