In Muhlemkamp v Blizzard, 521 F Supp 2d 1140 (E.D. Washington) on July 17, 2007, Mr. Muhlenkamp filed his petition for return. Also in the spring of 2007, Mr. Muhlenkamp began legal proceedings in Germany to regain custody of E.M. Apparently, without any notice to Ms. Blizzard or opportunity to defend herself. The Bayreuth Local Court entered a judgment finding Ms. Blizzard "wrongfully removed" E.M. from Germany to the United States based on a "plausible" showing of facts by Mr. Muhlenkamp. E.M. was born to Mr. Muhlenkamp and Ms. Blizzard on April 29, 2004, in Duisburg, Germany. Shortly thereafter, the parties obtained a U.S. birth certificate, a U.S. passport, and a U.S. social security number, all for E.M. The parties repeatedly discussed an eventual relocation to the United States. Mr. Muhlenkamp and Ms. Blizzard married on June 8, 2005, in Duisburg. Mr. Muhlenkamp was a musician and a citizen of Germany. Ms. Blizzard was an academic professor, a born citizen of the United States, and later became a resident of Germany, where she was a resident until June 2006. Mr. Muhlenkamp, Ms. Blizzard, and E.M. moved to Bayreuth, Germany, in August or September of 2005. At some point Ms. Blizzard's mother became ill. In order to receive care, Ms. Blizzard's mother moved from Germany to Mesa, Arizona, in January 2006. On February 22, 2006, Ms. Blizzard drafted a permission letter allowing her to travel with E.M. to Mesa, Arizona, from February 25, 2006, to March 20, 2006, which Mr. Muhlenkamp signed and was notarized. During this period, Ms. Blizzard and E.M. visited Ms. Blizzard's mother, who was in declining health, in Arizona at the address contained in the consent letter. In the spring of 2006 Ms. Blizzard was also focused on finding a career position outside of Germany. Her two-year term as a professor at a university in Bayreuth was to expire soon and, under local German law, Ms. Blizzard could not continue employment in the Bayreuth area. Ms. Blizzard explored new positions in a number of countries, including the United States. In late April and early May of 2006, Ms. Blizzard went alone to Spokane, Washington, for a job interview at Spokane Falls Community College. Upon arriving at the train station in Frankfurt, Germany, on May 1, 2006, for her final train leg to Beyreuth, Ms. Blizzard called Mr. Muhlenkamp to inform him she had arrived a day early. During this phone call, Mr. Muhlenkamp told Ms. Blizzard that he wished to separate from her. When Ms. Blizzard returned from the Spokane Falls interview, Mr. Muhlenkamp moved out of their shared apartment into his own apartment. He expressed no desire to visit Ms. Blizzard or to provide care for E.M. between May 1 and June 12, 2006. E.M. remained in the care of Ms. Blizzard and continued full-time daycare until June 12, 2006. On or about May 23, 2006, Ms. Blizzard informed Mr. Muhlenkamp that Spokane Falls Community College had offered her a job which he understood she would accept. Mr. Muhlenkamp then signed a letter terminating the lease on the marital apartment. On May 5, 2006, Ms. Blizzard drafted a permission letter to allow her "to travel internationally and remain abroad indefinitely with [E.M.]," which Mr. Muhlenkamp signed and was notarized. On June 7, 2006, at Mr. Muhlenkamp's request, Mr. Muhlenkamp and Ms. Blizzard met with Hubert Wattenbach, a social worker employed by the city of Bayreuth. Mr. Wattenbach testified that Mr. Muhlenkamp was concerned whether E.M. would be returned to him if Ms. Blizzard died while living with E.M. in the United States. Therefore, as of June 7, 2006, Mr. Muhlenkamp understood E.M. was to relocate to the United States because her mother, Ms. Blizzard, had employment in the United States. On June 12, 2006, Ms. Blizzard left with E.M. for the United States without any prior notice to Mr. Muhlenkamp. After arriving in the United States, Ms. Blizzard had her belongings shipped to her. When Ms. Blizzard and E.M. arrived in Phoenix, Arizona, Ms. Blizzard attempted to call Mr. Muhlenkamp several times in order to tell him their whereabouts, finally connecting with him on June 14, 2006, after 25 phone calls. During the phone call, Ms. Blizzard impressed upon Mr. Muhlenkamp that she would return to Germany within two weeks. In an email sent to Ms. Blizzard on June 16, 2006, Mr. Muhlenkamp expressed displeasure that Ms. Blizzard had taken E.M. to the United States without his knowledge. Mr. Muhlenkamp felt he had lost two weeks of time with E.M. prior to her final departure for the United States with Ms. Blizzard and pleaded with Ms. Blizzard, "please promise me that you will not just leave [E.M.] in America." On June 22, 2006, Mr. Muhlenkamp sent another email to
Ms. Blizzard, demanding Ms. Blizzard inform him of when she would be returning with
E.M. so that he may "make use of the time I have left with [E.M.] in Germany." In this email, Mr. Muhlenkamp expressed his belief that a continued stay beyond two weeks was "not legal." Based on the clear and unambiguous understanding by Mr. Muhlenkamp that Ms. Blizzard would be returning with E.M. to Germany to finalize agreement on future visitation with E.M. and on other parental rights and responsibilities, the Court found that Mr. Muhlenkamp intended, and never waived the right, to determine such custody rights of E.M. in Germany under German law. At some point in August or September of 2006, Ms. Blizzard moved to Spokane, Washington, with E.M., where they resided since.
The District Court observed that in determining the appropriate location of a child under the Hague Convention, the threshold issue is whether the removal or retention of the child was wrongful. Here, the Bayreuth Local Court may have superseded the District Court in its determination that Ms. Blizzard wrongfully removed E.M. Thus, the Court was confronted with the question of whether the Court must respect the Bayreuth Local Court's decision and enter an order compelling the return of E.M. It noted thta United States courts are to give full faith and credit "to the judgment of any other ... court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter." 42 U.S.C. 11603(g). The Bayreuth Local Court entered an order and "Certificate of Wrongfulness" declaring the removal of E.M. was "wrongful" within the meaning of the Hague Convention. Article 15 of the Hague Convention allows: The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. Hague Conv. art. 15. Here, the question of the wrongfulness of E.M.'s detention had already been decided by the Bayreuth Local Court. Ahough the typical procedure under Article 15 would be for the District Court to request a determination of wrongfulness by a German court, because the Bayreuth Local Court had already made a determination, the Court had to determine whether to give the decision full faith and credit under ICARA, 42 U.S.C. 11603(g). The Court found that several concerns arose from the Bayreuth Local Court's decision. First, Ms. Blizzard never received notice of this proceeding , nor did the Bayreuth Local Court or Mr. Muhlenkamp ever attempt to notify Ms. Blizzard of the custody proceeding and Hague Convention issue. Second, the Bayreuth Local Court's requisite level of burden of proof was below the standard mandated by ICARA and the Hague Convention. That court simply stated that Mr. Muhlenkamp had "shown plausibly by submission of an affidavit dated October 18, 2006, and the notarized revocation of travel permission dated August 14, 2006[sic] that he has joint right of custody of [E.M.]," and therefore the court made a finding of "wrongfulness" pursuant to the Hague Convention. However, the requisite burden of proof is more than "plausible"; a petitioner must "establish by a preponderance of the evidence" the child was wrongfully removed. 42 U.S.C. 11603(e)(1)(a). Because no notice was made to Ms. Blizzard of the proceeding and the Bayreuth Local Court applied a burden of proof substantially less then the requisite burden, the District Court did not give full faith and credit to the Bayreuth Local Court decision.
The Court found that Removal of E.M. from Germany occurred on June 12, 2006. Retention, if wrongful, occurred after the two-week window Mr. Muhlenkamp believed Ms. Blizzard would be in the United States. Thus, retention occurred on June 26, 2006. In determining the location of Habitual Residence the Court observed that although E.M. possessed a U.S. social security card, U.S. birth certificate, and U.S. passport prior to the removal, E.M. was born and lived in Germany her entire life. Therefore, at the time of removal, the Court concluded E.M.'s habitual residence was in Germany, though it is certain that the parties agreed that Ms. Blizzard was relocating to the United States with E.M. to begin her job in Spokane, Washington.
The Court noted that under the Hague Convention, rights of custody "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Conv. art. 5. German law gives both parents equal custody of a child.(citing Burgerliches Gesetzbuch [BGB] [Civil Code] Aug. 18, 1896, ss 1621 P 1, 1627;) "The violation of a single custody right suffices to make removal of a child wrongful." Furnes v. Reeves, 362 F.3d 702, 714-15 (11th Cir.2004) "Rights of access do not constitute rights within the meaning of the Hague Convention...." Croll v. Croll, 229 F.3d 133, 135 (2d Cir.2000). Rights of access "include the right to take a child for a limited period of time to a place other than the child's habitual residence." Hague Conv. art. 5(b). This case presented the question of whether Mr. Muhlenkamp retained merely a right of access, rather than rights of custody, when he agreed to let Ms. Blizzard take E.M. to the United States. On May 5, 2006, Mr. Muhlenkamp signed a general letter written by Ms. Blizzard giving his "express permission for Allison Blizzard to travel internationally and remain abroad indefinitely with [E.M.]." Mr. Muhlenkamp and Ms. Blizzard disagreed as to what "indefinitely" meant. From the facts, the court determined that Mr. Muhlenkamp retained the right to determine custody rights, including parental-decision making roles and the right of visitation, in Germany. For this reason, the Court concluded Mr. Muhlenkamp possessed rights of custody at the time of removal. Mr. Muhlenkamp did not know of Ms. Blizzard's intention on June 12, 2006, the time of removal, and therefore did not exercise his custodial right at the time of removal. However, when Mr. Muhlenkamp became aware of Ms. Blizzard's intent, he exercised his rights and did not acquiesce to the retention of E.M. in the United States. Therefore, the Court concluded wrongful retention occurred on June 26, 2006.
Mr. Muhlenkamp filed his petition on July 17, 2007. Wrongful retention began on June 26, 2006. The Court concluded the filing occurred outside the one-year limitation. It observed that the Ninth Circuit has stated: The question whether a child is in some sense "settled" in its new environment is so vague as to allow findings of habitual residence based on virtually any indication that the child has generally adjusted to life there. Further, attempting to make the standard more rigorous might actually make matters worse, as it could open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit-such as having the child profess allegiance to the new sovereign. Mozes, 239 F.3d at 1079. The Ninth Circuit provides a dim light as to what factors are pertinent: "[S]ome courts regard the question whether a child is doing well
in school, has friends, and so on, as more straightforward and objective...." Here, E.M. was performing at two to three age levels above her own. E.M. also was well-liked and had a strong core of friends. Ms. Blizzard routinely took E.M. to community cultural events. E.M. had many relatives in the Northwest and in Arizona, where they often spent holidays. Thus, the Court found E.M. had settled. Because E.M. had settled, the one-year limitation exception applied. Therefore, even though the Court found Ms. Blizzard wrongfully retained E.M. outside of Germany, the Court concluded E.M. shall remain with Ms. Blizzard in the United States.
The District Court observed that while the ICARA allows a court to impose provisional remedies "to protect the well-being of the child involved or to prevent the child's further removal or concealment," IRACA only establishes the authority prior to "final disposition of the petition." 42 U.S.C. 11604 Thus, the Court did not enter a temporary order on custody.
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