In Bader v. Kramer, the parties’ minor child was born in Germany in 1999. The parents were divorced in 2002, and the child lived with the mother. The divorce did not address custody.
Both parents filed for physical custody in Germany. In March 2003, a court granted the father, Ulrich Bader, visitation rights, and the mother, Sonja Kramer, child support. The next month, Kramer took the child to the US without the father’s consent. In October of that same year, Bader filed a petition for the child’s return to Germany under the Hague Convention. The German central authority contacted the US central authority to discuss the return of the child who had been kidnapped. In December of 2003, the German court granted the father sole custody. Bader filed a petition in US court for the return of the child to Germany.
Initially the district court ruled that Bader did not have cognizable rights of custody under German law at the time of the child’s removal. Bader appealed the decision and the Apellate Court held that the father possessed joint custody rights under German law. The case was
remanded to the district court to determine if Bader was actually exercising his custody rights at the time of removal. On remand, the district court found that Bader was exercising custody and no defenses precluded the minor child’s return to Germany. Kramer appealed the decision.
The issues before the Appellate Court were whether Bader was exercising his custody rights at the time of the minor child’s removal and whether Kramer had established any defense precluding the minor child’s return to Germany.
Kramer argued that Bader merely had visitation rights and not any rights of custody. The Appellate Court disagreed. The Appellate Court stated that for a wrongful removal claim under the Hague Convention, a parent must actually exercise custody rights. However, the term
“exercise” is not defined in the Convention. The Court had two options: either define exercise or refer to the law of the child’s habitual residence to determine the meaning of exercise. Both options were problematic. Defining exercise would force the court to analyze custody–which is not the court’s function under a Hague Convention action. The second option would require a US court to delve into the policy considerations of another country’s domestic law.
The Court decided to avoid questioning whether the parent’s exercise of custody was performed well or poorly. Instead, the Court stated that they will liberally define exercise. Whenever a parent with de jure custody rights keeps any sort of regular contact with a child, that parent is exercising rights of custody. The court decided that if a parent with legal custody rights maintains even irregular contact with their child, it is considered an exercise of custody rights. The court concluded that an abandonment of a child would be considered a failure to exercise custody rights. The district court found that Bader exercised his rights custody on at least three occasions–two nights in December, a nine-day vacation in January, and an overnight in April. In addition, Bader paid child support. The court did not need to decide if the father’s visits were simply for visitation or custodial rights.
The Appellate Court, however, did state in footnote 1 that this definition of exercise of custody rights will not be used if the country of habitual residence has already defined exercise of custody rights under the Hague Convention.
Key Takeaways
To sustain a claim of wrongful removal under the Hague Convention in Orange County, a parent must exercise rights of custody in the country of the child’s habitual residence.
If a country defines “exercise” under the Hague Convention, an Orange County court may rely on that definition.
Visitation and payment of child support is considered an exercise of rights of custody which may result in the return of a child who was kidnaped by a parent.
If you need legal advice and are looking for a family law lawyer in Orange County to address a Hague Convention issue, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.
Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not address other factors which may play a significant role in a particular dissolution. Circumstances in your divorce may alter the results in your dissolution.
Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.