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Monday, June 18, 2012

Hamprecht v Hamprecht, 2012 WL 1890857 (M.D.Fla.) Germany ] [Habitual Residence]

[Germany ] [Habitual Residence]

In Hamprecht v Hamprecht, 2012 WL 1890857 (M.D.Fla.) Petitioner and respondent were both born in Germany, and had always been German citizens. They were married in Germany on December 16, 1994, and became the parents of sons born in 1995, 1997, and 2005 in Germany. The family resided in Germany until February 18, 2009, when they came to the United States. Prior to that time the family had often traveled to the United States, but no member of the family ever attempted to obtain United States citizenship. The child at issue in this case was the youngest son, referred to as "F.H.", who was born in Germany on October 25, 2005.

Petitioner was the Chief Executive Officer (CEO) for Tube Technology Systems AG (TTS AG), a company located in Massen, Brandenburg, Germany. TTS AG currently manufactured and supplied specialized braking systems to Volkswagen, Audi, Lamborghini, and Bentley automobiles. Petitioner traveled extensively on his German passport. Respondent had not been employed outside the home. The parents wanted to immerse their oldest two sons in English, and decided to come to the United States for an extended stay. Petitioner testified that the stay in the United States was to coincide with his temporary employment duties, and the family never intended to stay permanently. Respondent testified that it had always been the plan and intent to move permanently to Florida.

In 2008, the parties sold their house in Germany, which was about 350 miles from the TTS AG plant, and moved to rental property in Dresden, Germany closer to the company. On August 28, 2008, petitioner purchased a $739,000 waterfront home on Harbour Circle in Cape Coral, Florida. Subsequent correspondence from respondent and her attorney refers to this house as the parties' "vacation home." The parties also began making arrangements for their trip to the United States, checking on schools for the two older sons and checking on how to enter the United States. On February 4 or 5, 2009, respondent and F.H. were issued six-month B-2 (visitor) visas at the U.S. Embassy in Berlin, Germany, while the other two boys were issued F-1 (student) visas. Petitioner was admitted to the United States pursuant to the waiver program. Petitioner, respondent, and their three sons arrived in the United States on February 18, 2009.

Upon their arrival in the United States, the family lived in the vacation home in Cape Coral and the two older boys enrolled in a private school in Fort Myers, Florida.

Petitioner would travel back and forth to Germany for his employment activities while his family remained in Florida. TTS AG maintained an apartment for petitioner in Berlin, Germany. Shortly thereafter, TTS AG decided to expand its production to the United States. In March 2009, TTS AG incorporated Tube Technology Systems, Inc. (TTS Inc.) as a wholly owned Florida subsidiary. TTS AG asked petitioner to run the United States affiliate in addition to his other duties with TTS AG. Respondent's six-month visitor status was to expire on August 17, 2009. In a letter dated July 12, 2009 to the United States Citizenship and Immigration Services (USCIS), respondent's attorney submitted an application for an extension of respondent's B-2 status. Attached to the attorney's letter was an undated letter by respondent to the USCIS requesting the extension of her B-2 status. Respondent's letter stated she was "requesting that my stay be extended until to allow me to remain with and care for my young sons until we return to Germany at the end of the school year. They are currently enrolled with valid F-2 student visas in a private program at Canterbury School in Fort Myers, Florida." Both letters referred to an enclosure of a copy of a warranty deed to "our vacation home" in Florida. Respondent's "application for extension of temporary stay" was approved effective from August 18, 2009 through February 16, 2010.

On November 18, 2009, TTS Inc. applied for a L-type visa for petitioner, which was granted on November 20, 2009. A L-type visa is a nonimmigrant temporary visa to effectuate an intracompany transfer of an executive or manager to the United States. In February 2010, petitioner formally agreed to establish and manage TTS Inc. for the manufacture of specialty automobile brake systems for United States automakers. On February 11, 2010, petitioner became the CEO of TTS Inc. pursuant to an additional employment contract with TTS AG and TTS Inc. This additional employment contract, which was governed by German law, was to terminate on November 30, 2011. TTS AG officials variously estimated the project would take 18 to 24 months, and then petitioner was to return to Germany. Because her visa extension would expire soon, in a February 10, 2010 letter by counsel, respondent applied for a change of her B-2 status to an L-2 status and an extension until January 31, 2011 to coincide with petitioner's L-1 status. This application was approved on April 2, 2010, and respondent was given L-2 status (which was derivative of and dependent upon her husband's L-1 status) through January 31, 2011. A similar status change was granted for F.H. on May 5, 2010. Petitioner traveled back and forth to Germany, and researched a location in the United States for the new TTS Inc. plant.

The parties' two older sons re-enrolled in their private school for the 2010 school year. Petitioner's business activities were succeeding. Petitioner and respondent, however, were having marital difficulties. To address their immigration statuses, both petitioner and respondent filed additional applications for extensions. On November 9, 2010, respondent applied for an extension of her L-2 status through January 30, 2013. On November 17, 2010, TTS Inc. filed a petition with the USCIS for an extension of petitioner's L-1A status based upon his employment. TTS Inc. reported that petitioner had negotiated incentives with the City of Auburn, Alabama, hired a consultant to assist with preliminary work in setting up a production facility, shipped machinery and equipment required to begin operations, and reached an agreement with Volkswagen to supply its brake systems. TTS Inc. stated that the dates of intended employment were January 31, 2011 to January 30, 2013.

On December 16, 2010, both petitions were granted. Petitioner was issued an extension of the L-1 visa to stay in the United States through January 30, 2013, based upon his continued employment for TTS Inc. Respondent was granted a "temporary stay" extending her stay in the United States through January 30, 2013. This form notified respondent that her nonimmigrant status was based on the separate nonimmigrant status held by virtue of her husband's authorized employment in the United States. In February 2011, respondent signed contracts with the private school for all three of her sons for the 2011 school year. By a letter dated March 16, 2011, respondent filed an application for permission to accept employment in the United  States. This was approved on May 26, 2011. In March 2011, the parties sold the vacation house in Cape Coral because it was too small for the family, and began planning to build a new house. On March 15, 2011, respondent purchased a lot in the Gulf Harbor Yacht and Country Club, in Fort Myers, Florida, for $320,000. Petitioner retained a real estate developer and former neighbor to design a custom residence with over 6,400 square feet of living space at an estimated cost of $1.25 million. The design process would be completed, but was eventually cancelled due to the marital difficulties. In March 2011, during an exchange of emails between petitioner in Germany and the designer, petitioner made reference to a "move to Fort  Myers full time" and requested that the design process be expedited.

Marital difficulties continued during the design process for the new house. Respondent had opened up a bank account in her own name at a Florida bank in March 2011. The parties separated in about August 2011. In September 2011,  petitioner discovered that respondent was having an on-going extramarital affair.

On September 26, 2011, respondent took in excess of $330,000 from a joint account with petitioner and deposited it in her sole account in the Florida bank. By mid-October 2011, petitioner had physical custody of the two older boys and respondent had physical custody of F.H. Both parents, however, remained active in the care and upbringing of all three sons. On October 13, 2011, respondent filed a domestic violence action against petitioner and obtained a state court temporary restraining order. On October 20, 2011, petitioner filed for petition for divorce in the Lee County Circuit Court, stating that he and respondent "have been residents of the State of Florida for more than six months next before filing this petition." Florida law requires that at least one of the parties to a divorce proceeding have been a Florida resident for more than six months.Fla. Stat. 61.021.Petitioner dismissed the divorce petition on December 6, 2011. Respondent, however, filed a cross-petition for divorce, which remained pending but was stayed by agreement of the parties.

On November 9, 2011, the state court entered an Order on Stipulation for No Contact directing petitioner to have no contact with respondent, and directing dismissal of the temporary injunction. Without informing respondent, on November 14, 2011, petitioner and the two older sons left Florida for Germany. Respondent had possession of the passports for all three sons. On November 15, 2011, petitioner and his two older sons went to the German embassy in Florida where they obtained emergency documents for the two older sons to return to Germany. They left for Germany later that day and arrived on November 16, 2011.

On or about November 17, 2011, both parents filed motions in the divorce proceeding asking for a temporary parenting plan. Petitioner and respondent both asked for custody of all three children. On December 7, 2011, the state court entered an order granting temporary custody of all three children to the mother and directing that the two older children be returned to Florida.

On November 21, 2011, TTS Inc. withdrew its November 18, 2009, petition for nonimmigrant worker status for petitioner. The USCIS revoked the petition effective that date. The last time respondent attempted to contact her two sons in Germany, or to speak with them when they attempted to contact her, was in the end of November 2011. Petitioner tried to contact respondent and F.H. repeatedly by email, but respondent has never returned the contact or allowed F.H. to do so. Additionally, respondent had not let F.H. contact his father or paternal grandparents since that time.

On January 3, 2012, petitioner filed an Application for Regulation of Parental Custody in a German court regarding his three sons. Petitioner sought full parental custody, or alternatively, the right to determine the place of residence of his three sons.

Respondent's immigration status in the United States was derivative of petitioner's status, which was dependent upon his employment in the United States. Respondent therefore applied for and was accepted as a student at Edison State College for classes beginning January 12, 2012. By a January 10, 2012, letter authored by counsel, respondent filed an application with the USCIS for an extension/change of nonimmigrant status. Respondent's January 3, 2012 application requested an F-1 (student) status, independent of any application or status of petitioner, stating that she traveled on a German passport and was not an applicant for an immigrant visa. Respondent's signed Certificate of Eligibility for Nonimmigrant (F-1) Student Status stated she had been accepted at Edison State College for classes majoring in Early Childhood Education and Teaching, which she expected to complete "not later than 05/05/2014."Respondent certified that "I seek to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study at the school...." In a separate Affidavit of Stephanie Hamprecht dated January 3, 2012, respondent stated that she was currently present in the United States pursuant to a grant of Change of Status to L-2 status as a dependent spouse "during my husband's temporary work assignment" valid from February 1, 2011 to January 30, 2013; that her husband had filed for divorce; that while divorce proceedings are pending, and after the termination of the marriage, she "wish[ed] to stay in the United States to pursue a degree in Early Child Education in order to better my chances of employment in Germany"; that she was not employed during her 17 year marriage, and therefore "I will have difficulty finding employment upon my return to Germany without any kind of formal education"; that after completion of her program at Edison Community College "I plan on moving back to my residence in Germany, where I have a strong support circle made up of many friends and a large family and where I have a strong financial standing"; and that "I own property in Dorsten, Germany, where I plan to return and seek employment upon the termination of my program at Edison  Community College."

On February 24, 2012, the requested change of status to F-1 (student) was granted  for respondent. The approved "temporary stay" was valid for the duration of respondent's student status. In a March 7, 2012 letter by counsel, respondent caused an application to be filed on behalf of F.H. requesting a change of status to F-2 status. The application stated that F.H. was "supported by my mother, based on whose principal status I am applying." The application remained pending as the USCIS issued a Request for Evidence on May 1, 2012 requiring a Dependant Copy of the SEVIS Form I-20 by June 3, 2012. In an April 5, 2012, answer to request for admission, respondent stated:"Respondent denies that she ever intended to return to Germany after moving to the United States."

The District Court found that the retention of F.H. in the United States was clearly with the petitioner's consent until November 14, 2011, the date petitioner left for Germany with his two other sons. It observed that the Eleventh Circuit has adopted an approach to determine habitual residence. Determination of a habitual residence focuses on the existence or non-existence of a settled intention to abandon the former residence in favor of a new residence, coupled with an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized. Ruiz, 392 F.3d at 1253-54,adopting the approach set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The Court concluded that petitioner has established by a preponderance of the evidence that F.H.'s habitual residence remained Germany.

It found that the parents never had a shared intention to abandon Germany as a habitual residence and to make the United States the habitual residence for themselves or F.H. Both parents clearly had the shared intent to come to the United States for some period of time. There was an agreement to stay for the duration of petitioner's employment activities in the United States. Petitioner maintained this was the extent of the agreement, while respondent asserted that it was agreed they would never again reside in Germany.

The Court did not find respondent's testimony regarding their agreement to remain permanently in the United States to be credible. Respondent had shown a propensity to make whatever statement was in her best interest at the time in this regard. Petitioner testified before the Court that since February 18, 2009, it has been her intent to live permanently in Florida; that this intent has never changed; and that since her arrival in the United States she never intended to return to Germany. In an April 5, 2012, answer to requests for admissions, respondent denied "that she ever intended to return to German after moving to the United States." And yet, in July 2009, respondent told the USCIS that she was requesting a visa extension to stay with her children "until we return to Germany at the end of the school year." In January 2012, respondent told the USCIS she was requesting a student visa to complete her education so as to "better my chances for employment in Germany." Respondent said she owned property in Dorsten, Germany, "where I plan to return and seek employment upon the termination of my program" at school. The Court found that the parents never had the settled intention of abandoning Germany as their habitual residence in favor of the United States.

It was undisputed that respondent had maintained custody of F.H. in the United States, and refused to allow petitioner to communicate with F.H. and refused to allow F.H. to communicate with petitioner. Respondent retained F.H.'s German passport (until surrendered to the court), has declined to return F.H. to Germany, and initiated legal proceedings to prevent that from occurring. The Court found that there was a "retention" of F.H. within the meaning of the Hague Convention from at least November 17, 2012 forward.

The Court concluded that the evidence in this case established that respondent's retention of the child was a wrongful retention under the Hague Convention. Respondent's refusal to allow communication between F.H. and petitioner, and her unilateral retention of F.H. without the consent of petitioner, violated petitioner's custody rights under German law. Petitioner also established he was exercising his rights of  custody at the time the child was wrongfully retained. Petitioner continued to see and 
visit with the child and participate in his life prior to leaving for Germany. After November 14, 2011, petitioner made multiple efforts to maintain contact with the child as well as to obtain custody of F.H.

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