Pankow/Weißensee Local Court
UNITED STATES OF AMERICA
31 January 2020
Upheld on appeal
Habitual Residence - Art. 3
The child was born in December 2013 in the Dominican Republic and initially lived there under the care of the mother and her family. The parents were not married and the father was living in the United States. In October 2014, the father acknowledged paternity of the child and the child and the father visited each other regularly.
In October 2017, with the consent of the father, the mother travelled with the child to Germany, where she married in January 2018. The child then returned to the Dominican Republic.
In March 2018, as agreed, the father and the child travelled to the United States, where, in May 2018, the father came to know that the mother had moved to Germany. He did not agree to the child moving to Germany and refused to return the child to the mother.
In November 2018, the child visited the mother for one week in the Dominican Republic and in May 2019 the child spent three days with its maternal grandmother in New York. In August 2019, the father and the child travelled to Germany for a visit. The father handed the child over to the mother. In his view it was agreed that the child should stay in Germany for two weeks. After these two weeks the mother and her family refused to return the child.
The court ordered the return of the child to the United States to the district of the court competent for the father's place of residence within two weeks of the decision taking effect.
The Court considered the United States to be the country of habitual residence before the retention in Germany. Even if the father had, as described in Article 3 of the Hague Child Abduction Convention, wrongfully retained the child in June 2018 in breach of the mother's joint custody rights, at no time did the mother initiate legal proceedings with the aim of having the child returned. The court assumed that the conditions for ordering the return of the child to the mother are no longer met at the time of the present decision, since the one‑year deadline has expired and the child had settled in the United States. According to the court, the child is now habitually resident in the United States, having lived there since March 2018. The father takes care of the child in all matters of daily life and the child has been attending school continuously. The child continues to speak primarily English, has American citizenship and had always been returned to the United States / to the father after his visits to the Dominican Republic in November 2018 and to New York in March 2019.