Appellate Law

CA1: an international custody battle, with a 14th amendment argument

By S. COTUS

Kufner v. Kufner, No. 07-1523 affirms the District Court?s grant of a petition under the ?Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501 [hereinafter Hague Convention], as implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq.?  The mother appears to have accused the father of some kind of abuse of the child and commenced proceedings to obtain sole custody in a German court.  The German court ?Dominik feared that she would leave the country with the sons, so he obtained an order requiring her to deposit their passports with the court. The German court ordered a home study for both parents? homes and talked with the sons in camera. It then issued a written opinion, holding that the parents must exercise joint parental custody, specifying the dates on which the parents can have access to the sons and where they can travel with them, and ordering that their passports be returned to [the mother].?  The father tried again for sole custody.  The Germans court performed some kind of psychological evaluation of the father and found him to be ?normal? and that there wasn?t really any evidence that the father was a pedophile or that he abused his kids.  The mother ran off to the US in contravention of the German court orders.

I bet you want to keep reading.

Enter the American courts.  American experts reached pretty much the same conclusions about the father.  Getting past a mootness argument, the First says that the kids were wrongfully removed from Germany (even though the mother says that they were brought to the US for medical treatment).  Likewise, the father had custody under German law (i.e. a court said so), and he would have exercised them had the mother not gone back to the US with the kids. 

It wasn?t an abuse of discretion to not take the testimony of one of the kids.  Likewise, it was not an abuse of discretion for the court to require the mother to ?undertake? to obtain the dismissal of German criminal charges against the father. 

This all seems rather straight-forward.  However, there is one argument of somewhat academic interests: ?Tina argues that the Hague Convention violates the equal protection component of the Due Process Clause of the Fifth Amendment. In support of her argument, she claims that the Hague Convention?s grave risk of harm standard is unconstitutional because she is entitled to the less-demanding best interests of the child standard.?  Alas, it was waived.

Full post as published by Appellate Law and Practice on March 07, 2008 (boomark / email).