Tribunal de Apelaciones
Estados Unidos de América
4 May 2016
Derechos de custodia - art. 3 | Consentimiento - art. 13(1)(a) | Grave riesgo - art. 13(1)(b)
Apelación desestimada, restitución ordenada
The Applicant father and Respondent mother lived in the USA with their daughter, born on 2 September 2014. The parents had joint custody. In December 2015, the family travelled to Germany together. The Applicant took the return flight to the USA, which had been booked for January 2016, alone, while the Respondent remained in Germany with their daughter. In February 2016, the family court ordered that the couple’s daughter be returned to the USA. It was against this court order that the Respondent mother submitted a complaint appeal.
The complaint appeal was rejected and it was once again ordered that the child be returned. No evidence was found that the child’s wellbeing was in danger due to the fact, that the father lost custody of his other daughter because of sexual abuse and his alleged paedophilic tendencies.
The parents had joint custody of their daughter. The daughter’s place of habitual residence was in the USA, where she had lived since birth with only short periods spent elsewhere. Furthermore, the Applicant had indeed exercised his right to custody, and there was long-term contact between father and daughter on a regular basis.
There was no evidence of the Applicant having consented to the removal. There are strict conditions to be met to prove unambiguous consent, and it is the Respondent (the child’s mother) who bears the burden of proof for this.
The court rejected the Respondent’s arguments that returning her daughter would subject her to a severe risk of physical or mental harm. The court ruled that she could accompany her daughter to the USA; she was not obliged to live with the Applicant. For this reason, she could not claim that she was unreasonably being expected to be separated from her daughter.
Furthermore, the Applicant regularly looked after his daughter alone for several hours a day, showing that the Respondent did not previously consider there to be a serious risk and making it improbable that the child was in danger in his presence. The court also advised that provisions allowing for an exception were to be interpreted restrictively.
The Respondent’s assumption that parental custody proceedings in the United States would be settled in her favour was not deemed to constitute an intolerable situation for the child. The fact that the family members might be worse off financially in the USA was not deemed to be of relevance either, as the Respondent had already worked in the USA and had lived there for several years.
The danger of criminal prosecution was held to be irrelevant to return proceedings as the risk is a typical consequence of the unlawful conduct of the abducting parent.