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Friday, September 16, 2016

Bips v Bips, 2016 WL 4529957 (E.D. Va.,2016) [Germany] [Grave Risk of Harm not Established] [Petition Granted]

In Bips v Bips, 2016 WL 4529957 (E.D. Va.,2016) the district court granted the Petition of the mother, Caroline Thonet-Bips, for  the return of her four-year old child to Germany. N. was born on March 2, 2012 and was a citizen of Germany and the United States.  The mother was a citizen of Germany. The father was a citizen of the United States. The parties were married and lived together in Germany from July 12, 2010 until January 2015.  In January 2015, petitioner filed for divorce in Germany.  In September 2015, during the pendency of the divorce proceedings, E.H. began residing with petitioner at petitioner’s residence. Since the parties’ separation, there was a strained relationship between respondent and E.H., whom respondent has referred to in conversations with N. as “a guy that does bad things.”  In March 2016, respondent relocated to  Virginia. By Agreement dated March 22, 2016, the parties agreed that respondent would have specified visitation rights with N during the summer. It also provided that “[i]t is agreed that it is the mother who will be entitled to decide on the place of residence of the son.” In October 2015, while respondent was still residing in Germany, N. made statements to respondent that caused him to have concerns that the child was experiencing some form of abuse at the hands of E.H.  On June 29, 2016, N., with petitioner’s consent, traveled to the United States, where respondent and N. were met by respondent’s domestic partner S.C. After spending several days in Pennsylvania visiting respondent’s relatives, respondent, N., and S.C. all traveled on July 7, 2016 to Virginia, where respondent resided with S.C.  On July 7, 2016, N. and S.C. were watching the television program Power Rangers Megaforce together. N. asked S.C. why Power Rangers “have to have so much power” and S.C. explained that they have to have power to fight “bad people” to protect the world; once S.C. mentioned “bad people,” N. responded “like E.H.” S.C. testified that while she was concerned by these statement, she did not report them to respondent. The next day, while playing Power Rangers with S.C. on the floor of N.’s room, N. said to S.C that he needed to have power like the Power Rangers so he can fight “bad guys” like E.H. S.C. asked N. why he kept mentioning E.H., and N. said because he is a “bad guy” and he “hit me.” At that point, S.C. testified that she had a “huge concern” but again did not report the comments to respondent. Then, on July 9, 2016, while on an outing for ice scream, N. told both S.C. and respondent that E.H. “hit me.” At that point, according to S.C. and respondent, N. “just started spitting it all out ... spilled all the beans and explained everything in detail,” including that E.H. “pulled his eyelids, called him dumb, slapped him in the face,” and “squeezed” his “pee pee so hard and would not stop.” N. also made comments suggesting that E.H. abused E.H.’s own daughter as well and said that on one occasion in petitioner’s home (in Germany), E.H. became angry and began to shout loudly and threw a lamp, frightening N. so much that N. ran into his room. On the evening of July 9 and the morning of July 10, 2016, respondent and petitioner engaged in a series of contentious text messages. Respondent told petitioner “[N.] has been telling me that [E.H.] has been hitting him and that he calls me names and that he is mean to him. I will be reporting this to the US authorities. He told me that he is scared to be around [E.H.].” Petitioner responded by calling respondent’s allegations “absolute [sic] bogus” and stating that “[N.] for sure does not live in a household where he is scared.”  Petitioner, through her German lawyer, asked respondent to return N. to Germany on July 22, 2016. Respondent refused. N. was scheduled to return to Germany on August 25, 2016, based on arrangements made before N. left Germany to spend the summer with respondent. Before that scheduled return date, respondent cancelled N.’s airline reservation. On August 19, 2016, petitioner filed the action.

The Court found that the petitioner established a prima facie case for return to Germany, which was the childs habitual residence. It also concluded that respondent failed to establish by clear and convincing evidence that there is a “grave risk” that N. would suffer physical or psychological harm by return to his mother in Germany. There never were any allegations or concerns that petitioner has abused N. Nor had there ever been any physical signs of abuse by anyone. The only indications of any possible abuse were the child’s own comments, which were originally made and investigated in Germany in October 2015 by German child protective services. That agency concluded that there was no abuse and that the N. was not in danger. N.’s most recent comments like the earlier comments, were subject to interpretation and completely uncorroborated or substantiated in any way as references to actual abuse, and also were part and parcel of a context involving the child’s fascination and perhaps obsession with Power Rangers, as well as the parties’ ongoing difficult and at times contentious relationship and respondent’s own criticisms and negative characterizations of E.H., which he conveyed to N. The court found that the case had none of the facts or circumstances that had caused other courts to refuse the return of a child based on an Article 13 defense under the Convention. It rejected respondents argument that there was a grave risk of harm because petitioner could not or will not adequately protect N. from any possibility of abuse at the hands of E.H. The Court saw nothing that would substantiate respondent’s concerns. The evidence presented was far from “clear and convincing” that any abuse ever occurred or that if N. was  returned to his mother, there was a “grave risk” that this four-year old would suffer physical or psychological harm in Germany.

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