Baker v Baker, 2017 WL 314703 (M.D. Tenn.)[Germany] [Consent][Petition denied]

In Baker v Baker, 2017 WL 314703 (M.D. Tenn.) the court denied the Petition of  Kenneth Baker for an Order directing that the parties’ minor children, LMB and MAB, be returned to Germany. 

Petitioner was a Chief Warrant Officer  in the United States Army The children’s mother, Respondent Brianne Baker, removed the children from Germany, where he was stationed, on or about May 3, 2016, to the United States. In 2012, the Army issued Orders, with an April 1, 2012 reporting date, taking Petitioner and his family to Wiesbaden, Germany. Petitioner, Respondent, and the children resided in Wiesbaden for three years in a house located off base. On April 22, 2015, the Army issued Orders, with a July 13, 2015 reporting date, to Stuttgart, Germany. Thereafter, the parties and their children made a trip to the United States for four weeks during the summer of 2015 visiting family. During the trip, Respondent told Petitioner she did not want to return to Germany because “she felt [she] was already done with her marriage at that point. Petitioner thereafter promised Respondent that she and the children would be able to return to Tennessee if things did not work out in their marriage. Relying on this promise, Respondent ultimately agreed to return. Petitioner and his family ultimately moved to Stuttgart, Germany. On February 25, 2016, during an argument Petitioner stated that he was going to file for divorce in Germany. At some point during the conversation, Respondent hit him with her iPad. Petitioner allegedly became fearful for his safety, so he took the children and drove to the Military Police station, which was one-quarter mile from the family’s home. When Petitioner arrived at the MP station, the desk sergeant smelled alcohol on his breath, which led to him being charged with a DUI. At some point, on that same evening, Respondent, who admitted to hitting Petitioner, was apprehended and charged with domestic violence. After the February 25, 2016 incident, the parties separated and Petitioner moved into the barracks. The children returned to the house to stay with Respondent, but Petitioner continued to have visitation with the children by agreement of the parties. On February 26, 2016, Petitioner realized that he and Respondent would not be able to reconcile and in order to comply with command’s lawful order, prepared a Memorandum and Personnel Action for the early return of his wife and children. On this document, Petitioner listed the requested return date of June 26, 2016, so that he would have time to file for custody in Germany and prevent EROD orders from being issued. Petitioner then filed a petition for custody of the children in German Civil Court. On April 28, 2016, Respondent was served with a summons to appear in Court on May 4, 2016, via email, and she was personally served on April 29, 2016. On May 3, 2016, Petitioner took the children and flew to the United States, despite having knowledge of the custody hearing that was scheduled for the next day in German Civil Court. On June 17, 2016, Petitioner’s Verified Petition requesting the return of the children was filed with the district  Court.

The district court observed that in holding that the habitual residence inquiry focuses on “past experience, not future intentions,” the Sixth Circuit in Friedrich I stated that the future intentions of the parents are “irrelevant.” 983 F.2d at 1401. Thus, the Friedrich I court dismissed arguments that “pertain[ed] to the future” and “reflect[ed] the intentions of [the mother].” (holding that child’s habitual residence was Germany because child was born there and lived there his entire life, despite the fact that his mother, a member of the armed forces, intended to return to the United States upon her discharge). A child’s habitual residence is the nation where, at the time of his/her removal, the child has been present long enough to allow acclimatization, and where this presence has a “degree of settled purpose from the child’s perspective.” Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007) (citing Feder, 63 F.3d at 224).

The district court found that the children’s habitual residence was Germany. Since 2012, the children had lived in Germany continuously for more than four years, excluding a single trip in 2015 of four weeks to the United States, from which they returned to Germany until their most recent trip. Furthermore, the evidence shows that after their return to Germany, the children continued to be involved in community activities. It also found that Petitioner had custody rights under German law and would d have continued to exercise those rights but for the Respondent’s retention of the children in the United States.

         The court noted that Article 13(a) of the Convention permits the Court to refuse to order the return of children, despite a wrongful removal or retention, if Respondent proves by a preponderance of the evidence that Petitioner “had consented to or subsequently acquiesced in the removal or retention.” Acquiescence or consent to removal of the child “requires more than an isolated statement to a third-party. Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Friedrich II, 78 F.3d at 1070. The Respondent testified that the parties had a conversation in July 2015 pertaining her and the children’s return to the United States, where Petitioner promised Respondent that she and the children would be able to return to Tennessee if things did not work out in their marriage. She testified between the summer of 2015 and the February 2016 accident, the parties “probably talked about that kind of stuff daily. It was a big deal.” The Court, found her testimony highly credible that Petitioner consented to the removal of the children from Germany and found for purposes of the Hague Convention, that Respondent gave his consent for Respondent to return to the United States with the minor child.