A federal court in a Hague case granted comity to a German court decision in an earlier Hague case between the same parents, which had denied return on the consent issue alone and thus did not make a finding on habitual residence. The 4th Circuit upheld this, contrasting it with a similar case which the foreign court had decided on grounds of non-exercise of custody rights, because "rights of custody" are defined under the law of the place of habitual residence, so they cannot be determined without determining habitual residence. The Convention does not require findings on all elements of the case, if one issue is legally sufficient to deny return, the court held.
Long after losing his Hague case in Germany, the father had kept the children in the U.S. at the end of a visit there. At that time they had lived in Germany for two years and acclimated there, but to establish that Germany was the habitual residence, the mother asked the U.S. court to give comity to the German decision that had found mutual consent for the children's move to Germany.
At that time, the mother and children had had round-trip tickets the father bought, with a return flight scheduled for Aug. 11. He said he bought round-trip tickets because she was going to Germany for four weeks to reconsider her decision to leave the marriage.
The U.S. court reviewed the German court's stated reasons for finding the mother more credible than the father. It was “at least minimally reasonable” for the German court to believe the mother’s testimony that weeks before she took the children to Germany on July 13, her husband had been told the move was permanent and consented to it, though expressing hope that she would change her mind. He first testified that he only learned her intention the day before she was supposed to come back, Aug. 10. When he was confronted with, and admitted, the fact that on Aug. 1 he had posted on Facebook, “Please come back to me", he then said he learned of her true intention when she called him in late July to tell him.
When the father later kept the children in North Carolina, he had signed a notarized statement saying he would return the children to Germany in a month, or soon after that. But:
Expressing concerns over their dental care and schooling, Mark kept the children in North Carolina and informed Daniela of 8 his decision via Facebook ...
As for standards for granting or withholding comity,
The Ninth Circuit has provided a useful framework for extending comity in Hague cases: “[W]e may properly decline to extend comity to the [foreign] court’s determination if it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvesta v. Petroutsas, 580 F.3d 1000, 1014 (9th Cir. 2009). ... the Second Circuit pointed out in Diorinou that “[a]lthough deference as a matter of comity often entails consideration of the fairness of a foreign adjudicating system, a case-specific inquiry is sometimes appropriate.” Diorinou, 237 F.3d at 143 (citations omitted). In any event, whether we follow Daniela’s proposed standard of review or that described in Asvesta, the result is the same because, as discussed below, the facts of this case render the German court’s decision at least minimally reasonable.
The court points out that in Asvesta, the U.S. court could tell that the foreign court's finding of consent was very unlikely to be correct, from the parties' written communications, and from a notarized consent to temporary travel, regardless of which party was considered credible. And there was no other evidence of agreeing to a permanent move. [And yet, the e-mail that it quotes from that case says, "Go to Greece with the child and we will see how I will come to Greece to visit him.” But the court considers it superseded by the later, notarized written permission to travel to Greece "between the following dates." While that could be read literally as allowing the departure to be between those dates and saying nothing about return, there would be no practical reason for someone to give consent in that form. [That last sentence is my observation, not the court's.]
The court here discusses some particular, common kinds of evidence in such cases, including what probative value round-trip tickets have. It notes that they were cheaper than one-way tickets. Also, they are consistent with the mother's testimony that she promised to consider changing her mind and returning. While the father filed for custody, that could just show that he "regretted his earlier consent." And the mother said she "brought the children’s birth certificates in case she needed them for school enrollment or other purposes."
Smedley v. Smedley (4th Cir. 11/5/14, published)