DUNCAN, Circuit Judge:
Ever since A.H.S. and G.A.S., the Smedley children, left North Carolina with their
A German court denied Mark's Hague petition, and a German appellate court affirmed, so Daniela did not have to return the children to North Carolina. After Mark decided to keep them following their visit, the U.S. District Court for the Eastern District of North Carolina accorded comity
The goals of the Hague Convention are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and ... to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."
Under Article 3, the removal or retention of a child is wrongful when it breaches a person's rights of custody "under the law of the State in which the child was habitually resident." Hague Convention art. 3. The Hague Convention does not define "habitual residence." United States federal courts analyze a child's habitual residence on a case-by-case basis, taking into account first, whether the parents share an intent to make a particular country the child's home, and second, whether enough time has passed for the child to acclimatize to the residence. See Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir. 2009). The underlying principle here is that "a parent cannot create a new habitual residence by wrongfully removing and sequestering a child." Miller v. Miller, 240 F.3d 392, 400 (4th Cir.2001) (citing Diorinou v. Mezitis, 237 F.3d 133, 141-42 (2d Cir.2001)).
If a removal or retention is found wrongful, Article 12 provides that the child
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.
At this point, the parties' stories diverge. Daniela claims that marital tensions, which had surfaced in Germany, were exacerbated in Swansboro by her homesickness and isolation to such an extent as to lead to discussion of divorce. Daniela maintains that 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, on the other hand, denies that he and Daniela ever discussed divorce and claims that the trip to Germany was to be nothing more than a one-month vacation. In his version, 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. It based the denial in part on the findings of a court-appointed family advocate. The court credited the advocate's allegations 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. There, 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
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. In a comprehensive opinion, 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. J.A. 56. 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." J.A. 57. 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.'" J.A. 58 (second alteration in original) (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.
Our task is to decide whether the district court properly accorded comity to the German court's ruling that Daniela did
We have yet to decide whether to review comity decisions de novo or for abuse of discretion, and need not do so here.
Mark first argues that the German court clearly misinterpreted the Hague Convention because it failed to make a habitual-residence determination before addressing the defense of consent. The order of analysis matters, he contends, because the German court "would have been compelled to find that [the children's] habitual residence was North Carolina," Appellant's Br. at 15, and such a finding "might have made a court respectful of the Hague Convention more reluctant to find that the defenses of Article 13 applied in the case," id. at 16. We are not persuaded.
Mark's contention that the German court would necessarily have found North Carolina to be the children's habitual residence is pure conjecture. Further, he cites 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.
It is true that in Asvesta, the Ninth Circuit criticized a Greek court for failing
By contrast, 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.
We next consider Mark's argument 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. 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.
According to the German court, Daniela's testimony was "detailed, coherent and consistent." J.A. 27. Also, A.H.S. corroborated it, stating that Mark had promised her she could stay in Germany. (The family advocate reported to the German district court that she found A.H.S. to be "very authentic," J.A. 66E, and confirmed that report to the regional court.)
By contrast, the German court found that Mark's testimony through his lawyer was not credible. In addition to being "unsubstantiated," J.A. 28, its accuracy was also called into question. Mark initially asserted to the German court that he first learned of Daniela's decision to stay in Germany on August 10, 2011, the day before the scheduled return flight. But he later admitted that nine days earlier, on August 1st, he had authored a Facebook post, which he had since removed, that read in part, "Please come back to me. I am really taking this hard right now." J.A. 37. That post casts doubt on Mark's initial statement about when he first learned of Daniela's decision,
The Ninth Circuit held that the Greek court's consent determination was "completely unsupported, and [was] indeed contradicted by, this evidence." Id. at 1019. First, the email could be read as consent to go permanently to Greece or to travel only temporarily, and in the context of the whole email, the latter was more likely. Id. Second, the notarized writing, executed after the email was sent, unambiguously gave consent for only temporary travel. Id.
By contrast, here there was no such evidence that rendered the German court's consent determination unreasonable.
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 is
AFFIRMED.