Smedley v Smedley, --- F.3d ----, 2014 WL 5647426 (C.A.4 (N.C.) [Germany] [Federal & State Judicial Remedies] [Comity] [Petition Granted]

In Smedley v Smedley, --- F.3d ----, 2014 WL 5647426 (C.A.4 (N.C.)) the Smedleys married in 2000 in Germany, where Mark was stationed as a member of the 
United States Army. Their children, A.H.S. and G.A.S., were born in 2000 and 2005, respectively. Except for approximately one year spent in Tennessee, the family lived in Bamberg, Germany, until August 2010, when Mark was transferred to North Carolina. He bought a house in Swansboro and brought the family with him. Daniela maintained that she they had discussed divorce and she told Mark she was returning to Germany with the children  permanently in May 2011, and he consented. Daniela and the children left on July 13th of that year. Because Daniela had agreed to take four weeks to reconsider her decision, Mark bought them round-trip tickets with a return date of August 11, 2011. Mark told Daniela that if she chose to stay in Germany, he would try to relocate there to be close to the children. In late July 2011, Daniela informed Mark via phone of her decision to remain in Germany.  Mark denied that he and Daniela ever discussed divorce and claimed that  the trip to Germany was to be nothing more than a one-month vacation. He said Daniela's decision to stay in Germany came as a complete surprise: he learned of it only after the late July phone conversation, about two weeks after she had already left North Carolina. She had not told him of her intent in May, and he had not  consented to a permanent move.

   On September 2, 2011, Mark obtained a temporary custody order from the District Court of  Onslow County, where Swansboro is located. In October, he filed a Hague petition in Germany  seeking the children's return.  The District Court of Bamberg denied Mark's Hague petition. The Court credit its denial in part on the 
findings of a court-appointed family advocate that Mark had physically abused A.H.S. and found that returning the children to North Carolina would expose them to a serious risk of harm, one of the Article 13 defenses.  Mark appealed the District Court of Bamberg's decision to the Bamberg Higher Regional Court. Daniela, A.H.S., the family advocate, and a representative from the Office of  Children Protection Services of Bamberg testified in person. Mark, who was unable to attend because his passport was expired, testified through his lawyer. The court agreed with Daniela that Mark had consented to the move to Germany, finding her testimony more credible than Mark's. As consent is an Article 13 defense, the court held that Daniela need not return the children without determining whether North  Carolina or Germany was their habitual residence.

Mark and Daniela obtained a divorce under German law in May 2012, and the children lived  with Daniela in Bamberg until August 2013. Daniela agreed in June
2013 to let the children visit Mark because they wanted a vacation and had not seen their father in two years. On August 6th, Mark picked the children up at Ramstein Air Base in Germany. He gave Daniela a notarized document stating that he would return the children on  or about August 26, 2013, with the exact date to depend on the availability of military flights.  Expressing concerns over their dental care and schooling, Mark kept the children in North Carolina and informed Daniela of his decision via Facebook on August 27, 2013. He enrolled the children in the Onslow County school system.

     Daniela filed a Hague petition in the U.S. District Court on April 7, 2014. The district court, ruling that the Bamberg Higher Regional Court's finding on consent  was not "wholly unsupported," accorded comity to that decision. First, the district court concluded that the German court's failure to determine the children's habitual residence was not fundamentally unreasonable because the decision "rested on what  is akin to an affirmative defense in Article 13(a)": Mark's consent to the move. Second, the district court reasoned that, based on the German court's credibility determinations, the testimony supported the contention "that Mark had agreed to the trip with the knowledge that Daniela and the children might not return. That the German court did not credit Mark's version of the story does not render its Article 13(a) determination ...fundamentally unreasonable." Third, the district court rejected Mark's argument that, because he did not formally manifest his non-consent, he did not consent to Daniela's decision, by noting that "[c]onsent ... 'may be evinced by the [parent's] statements or conduct, which can  be rather informal.' " (quoting  Nicolson v. Pappalardo,  605 F.3d 100, 105 (1st Cir.2010)).

      Having found that Daniela did not wrongfully remove the children to Germany and reasoning that they had acclimatized to life in Germany between July 2011 and August 2013, the district court found that Germany was the children's habitual residence at the time of their visit to North Carolina.  Because Mark did not assert any defense, the court allowed Daniela's  petition and awarded her physical custody for the purpose of returning the children to Germany. This appeal followed.

The Fourth Circuit held that the  district court properly accorded comity to the German  court's ruling that Daniela did not unlawfully remove the children to Germany. The court noted that, though foreign judgments are not entitled to full faith and credit, "comity is at the heart of the Hague Convention." Miller, 240 F.3d at 400 (quoting  Diorinou, 237 F.3d at 142).  Accordingly, "American courts will normally accord considerable deference to foreign adjudications as a matter of comity." It noted that the Ninth Circuit has provided a useful framework for extending comity in Hague cases: "[W]e may properly decline to extend comity to the [foreign] court's determination if it clearly misinterprets the Hague Convention,  contravenes the Convention's fundamental premises or objectives, or fails to meet a minimum  standard of reasonableness." Asvesta v. Petroutsas, 580 F.3d 1000, 1014 (9th Cir.2009). The Fourth Circuit held that the  district court properly extended comity because the German court's decision neither clearly misinterpreted the Hague Convention nor failed to meet a minimum standard of reasonableness. It noted that the the Second Circuit held that the proper standard of review in cases such as this one is de novo. See  Diorinou, 237 F.3d at 139-40. 

           The Fourth Circuit rejected Marks argument that the German court clearly misinterpreted the Hague Convention because it failed to make a habitual-residence determination before addressing the defense of  consent. He cited no authority for the  proposition that a court must decide habitual residence before addressing defenses. Nor is there anything in the text of the Hague Convention that requires a court to address Article 3  first. The Hague Convention does not set out a roadmap, only principles. Here the habitual-residence question was not dispositive or even helpful, as the court's conclusion did not turn on habitual residence or custodial rights. Even if the German  court had assumed that the children were habitual residents of North Carolina when Daniela took them to Germany, the finding that Mark consented to that move would have still provided her with an affirmative defense to wrongful removal.

The Fourth Circuit next rejected Mark's arguments that the German court's decision did not meet a minimum  standard of reasonableness because the court unreasonably relied on contradictory evidence in making its credibility determination. It noted that the German court found credible Daniela's testimony that Mark knew she went to Germany with the intent of staying there with the children, and that Mark consented to that move in the event she did not change her mind. Though the court 
made such a determination with Mark present only through his lawyer, the decision was at  least minimally reasonable. The German court found that Mark's testimony through his lawyer was not  credible.  Because Daniela's testimony was detailed and corroborated, and the evidence did not show that Mark's consent was for only temporary travel, the German court's decision was at least  minimally reasonable.
Accordingly, for the foregoing reasons, the judgment of district court was affirmed.