Friedrich v. Friedrich - 78 F.3d 1060 (6th Cir. 1996)

Rule:

The removal of a child from the country of its habitual residence is "wrongful" under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, if a person in that country is, or would otherwise be, exercising custody rights to the child under that country's law at the moment of removal. Hague Convention, art. 3.

Facts:

After defendant mother, Jeana Michele Friedrich, removed parties' child born in Germany to her family home in Ohio, plaintiff father, Emanuel Friedrich, a German citizen, filed an action for the return of his child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, and the International Child Abduction Remedies Act, 42 U.S.C.S. 11601-11610. The district court initially denied plaintiff's claim for return of his child. That denial was reversed and remanded by the court. On remand, the district court ordered defendant to return the child to plaintiff in Germany. Defendant sought review of the district court’s order. The district court stayed the order pending appeal. 

Issue:

Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, and the International Child Abduction Remedies Act, 42 U.S.C.S. 11601-11610, was it proper to order the defendant to return the child to plaintiff in Germany? 

Answer:

Yes.

Conclusion:

The court affirmed the district court’s order on grounds that it was supported by a preponderance of the evidence that plaintiff was exercising custody rights over the child at the time the child was removed. The court held that where German law gave custody rights to plaintiff and the evidence showed that he attempted to exercise those rights and did not abandon them prior to the child's removal, the removal of the child was "wrongful" under the Hague Convention. The court further held that defendant had failed to prove that plaintiff had acquiesced to removal of the child or child would be exposed to a grave risk of harm in Germany.