Watkins vs. Watkins (FRG 2001) District Court of Zweibruecken Docket Number 1 F 3709/00 6 International Abduction [FRG 2001] =========================================================== Certified translation of a German court order in the matter of Watkins vs. Watkins (stationery of the district court of Zweibruecken) (docket no) 1 F 3709/00 ORDER In the family mater of: Watkins, Kemper, residing at 27 Levi Eshkok, Herzliya, Israel Petitioner Represented by attorney at law Donald J. Cramer. Vs. Watkins, Marcia, residing at Zur Melkerei 20,66849 Landstuhl, with Lisa Barreto Respondent For physical custody of the child 001 The District Court, Family Court of Zweibruecken by Judge at the district court Marscheck-Schaefer has ordered on 25 January 2001 as follows: 002 1. It is ordered that physical custody of the child Hollis Watkins, born 12 June 1999 is transferred to the Petitioner in order to immediately return the child to Israel. 003 The Petitioner (WMH Note: Respondent?) or every other person who has the child in his/her care is required to hand over the mentioned child to the Petitioner or to a person designated by him for the mentioned purpose. 004 2. The court bailiff is ordered to take the child from the Respondent and to hand over the child to the Petitioner or to a person designated by him right there and when the child is taken from the Respondent. 005 3. The court empowers the bailiff to use force to enforce this order, in particular to break any resistance by the Respondent, to search her premises and to use the assistance of the police. However there is no force to be used against the child. 006 4. The Respondent who is required to turn over the child is warned that in case the child cannot be found she can be required to attend a court hearing designed to require her to file an affidavit concerning the whereabouts of the child, that she can be brought to court for that purpose and that the court may commit her to prison for up to 6 months for that purpose. 007 5. Costs of the proceedings have to be paid by the Respondent. 008 6. The Petitioner's request to remove the order of the family court of Zweibruecken of 21 December 2000 is denied. Reasons: 009 The parties are married to each other and are serving in the US Forces, the Petitioner in active duty, the Respondent as a major of the reserves. There is one child from their marriage, Hollis Watkins, born 12 June 1999. Since 1997 the parties were stationed in Germany. 010 According to their joint intentions for their life the Petitioner was transferred to the US Embassy in Israel. The Respondent and the child from their marriage were also stationed in Israel as dependents where they had lived since the beginning of June 2000 in a joint apartment. 011 The Respondent is as a major of the reserves required to do two months of military duty within every calendar year, this can be served in pieces. Because of a military order she went to Ramstein Air Base and served there from 8 October 2000 until 15 October 2000 and from 30 October 2000 until 22 November 2000. Her departure from Israel occurred with consent by the Petitioner as well that she took the child with her. 012 Already in November 2000 she informed the Petitioner of her intentions to separate and to divorce him. He took a few days leave and went to Ramstein where marriage counseling was done with a chaplain colonel which failed. Meanwhile the Respondent had filed a petition to allow her and their joint son to return early to the States since she wished not to return to Israel. Such a permission is necessary since the Respondent as member of the Armed Forces must not leave the place where he/she is stationed early, before the end of the tour of duty. This is detailed in the ERP (Early Return Program) for which the Respondent applied. 013 With a petition of 18 December 2000, filed with the court on 21 December 2000, the Petitioner asks for the return of the child Hollis to him to Israel because, as he alleges, the Respondent wrongfully withholds the child. He alleges that it was jointly agreed that after serving her reserve duty she would return to him to Israel and that she would live there with him until the end of his 3-year tour of duty. He says she broke this agreement by informing him that after a short stay in Italy she would not return to him but rather go the States. Meanwhile, he says, he does not insist that the Respondent returns to Israel, but however that it is urgently necessary that the child be returned to his habitual residence. 014 He states that in no case is there a military order for the Respondent to return stateside. Rather this is the opening of a possibility of an early return and there are orders to attend a school which, however, only starts in August 2001. This however does not, he says, change anything regarding the civil law obligation to return the child. 015 The Respondent opposes a return of the child. She maintains that there is no wrongful withholding of the child. She says that Hollis did not have his habitual: residence in Israel since the parties had been living there only since June of 2000. She says that even if the parties jointly - at least factually if not expressly - had jointly assumed before her trip to Germany that she would return with the child to Israel after the end of her service duties there, this agreement would be obsolete by now because now she has decided to file for divorce in Texas. She says that such a petition for divorce has been filed on 17 January 2001 with the court of jurisdiction. 016 As regards further details reference is made to the briefs exchanged between the parties and their affidavits. 017 The petition of the Petitioner for return of the child Hollis is granted. 018 Such a claim for return is based on Art. 12 subs.1 of the Hague Convention on the Civil Law Aspects of International Child Abduction. 019 The legal prerequisites for that are met. The child Hollis Watkins is being wrongfully retained by the Respondent within the meaning of Art. 3 of the Hague Convention, by not returning him to Israel. 020 As regards this the court finds that at the time of the departure of the Respondent the child had his habitual residence in Israel. In order to determine the habitual residence a number of requirements have to be met with the courts requiring a certain time element. In this case however the parties had been residing only for 4 months in Israel. It has to be taken into account that the parties had been ordered to be stationed there, that they had their own home there and that therefore the centre of all their activities was in Israel. 021 The court finds that the parties had agreed before the departure of the Respondent that she would return with the child to Israel after the end of her military service duties. The behavior of the Respondent which is inconsistent with this agreement violates the joint custodial rights according to which both parents jointly determine the whereabouts of the child. Such a joint custody determination is contained in Sections 14, 15 of the Israeli law, Israel is since 1995 a member state of the Hague Convention. 022 The Respondent herself alleges that it was the original plan of the parties that she should return after her reserve duty services to Israel. Her allegation that this agreement would be now obsolete is not suitable to remove the wrongfulness of her behavior. 023 In contrast her behavior is absolutely one sided and it constitutes the termination of an agreement against the wishes of the Petitioner and father of the child. It may be so that she is free not to continue the marriage with the Petitioner. It may be so that for that purpose she has already filed for divorce in Texas/USA. By virtue of joint custody she is not entitled to bring the child stateside against the wishes of the Petitioner. It is to the contrary the reason and purpose of the Hague Convention to provide in cases like this one the immediate return of the child to the place of his habitual residence. 024 The allegation by the Respondent that she has been ordered militarily back to the States is not correct in this form. Her return has only been ordered because the Respondent has applied for such an order arguing that she does not wish to return to Israel. She is free to make use of the early return program. She is not free to take the child with her since the Petitioner does not agree to this. 025 She cannot rely on her allegation that the Petitioner had never indicated his wish of a return to Israel, at least of the child. The opposite is true as manifested by the filing of the return request of 18 December 2000. 026 Also the fact that she has meanwhile filed with a court in Texas is no block in the way of an order according to the Hague Convention. 027 Reasons which would bar the return within the meaning of Art. 13 are not to be found. In particular the Respondent needs to be alerted to the fact that the violent disturbances in the Near East occur not only since October 2000 but already at a point in time when it was in accordance with their life plan to live in Israel. 028 Therefor the return of the child had to be ordered. 029 An order for immediate effectiveness within the meaning of Section 8, subsection 1, 2d sentence of the Custody Rights Treaty the court found not warranted here because the interests of the Petitioner are sufficiently safeguarded by the order of 21 December 2000 and because the Respondent needs to have the opportunity to protect her interests by filing an appeal. Therefor the order remains in force. 030 The order for costs is based on sect. 13 a statute for Civil Matters in connectIon with Art. 26 subsection 4 of the Hague Convention. /s/ Marscheck-Schaefer Judge at the District Court Certified copy /s/ (signature illegible) Court Clerk (rubber stamp for the district court of Zweibruecken) As licensed translator for the English language for the State of Bavaria I hereby confirm that the above is a complete and correct translation of the order of the district court of Zweibruecken of 25 January 2001 in the matter of Watkins vs. Watkins Muenchen, 12 February 01 Dr. Donald J. Cramer, Muenchen WMH Note: This document was furnished by the Law Office of Edwin Freedman, Tel-Aviv, Israel who has advised this office that the matter, as of 26 Feb 2001, was on appeal in the FRG. Comment by Wm. M. Hilton, CFLS The order covers the following issues: 1) Determination of the Habitual Residence (H/R) of the child. 2) The effect of a unilateral decision affecting the child by one of the parents. 3) The effect of political unrest in Israel as it would affect an Art. 13(b) defense. 4) The specific steps taken by the FRG Court as to the enforcement of its order. Habitual Residence The FRG Court found that the H/R of the child was in Israel, a necessary condition for the operation of the The Convention on the Civil Aspects of International Child Abduction, done at The Hague on 25 Oct 1980 (The Convention) The FRG Court found that, at the time of the retention in the FRG by the Respondent, Israel had become the H/R of the child despite the fact that the child had previously lived in the FRG from birth to Jun 2000 or about one (1) year and had then lived in Israel from Jun 2000 to Oct 2000. The court took into account that the parties had been ordered to be stationed in Israel, that they had their own home in Israel and that therefore the center of family's activities was in Israel. In short it was the mutual intent of both parties that they permanently leave the former H/R in the FRG and take up a new H/R in Israel. Under such circumstances it is common ground that the FRG lost its status as the H/R the day the family left the FRG for Isreal and that, since there was mutual intent, Isreal would become the new H/R within a very short period of time, arguably within a month or less. Unilateral Decision of Respondent The Respondent argued that even if there was a joint decision that the child would be returned to Israel from the FRG at the end of her temporary stay in the FRG, that decision was negated by her later statement that she would not return the child to Israel. The FRG court, quite properly, held that a specific purpose of The Convention is to prevent the unilateral removal and/or retention of the child and found Respondent's argument without merit. Art. 13(b) Defense The Respondent seems to have suggested that, because of the political unrest in Israel, it would be unsafe for the child to return to Israel. While the FRG court acknowledged that such political unrest did exist, it existed when the family made its original move from the FRG to Israel and accordingly it would be assumed that the parties did not think that the political unrest in Israel did not per se reach the level of a proper Art. 13(b) defense. In short it would appear as if the FRG court held that the parents had voluntarily assumed the risk of living in Israel as it was in Jun 2000. For a similar comment on this point see Freier v Freier (E.D. Mich. 1996) 969 F.Supp. 436, at Paragraph 032. [The Court does not find sufficient evidence in this record for Israel to be the "zone of war" contemplated by the Sixth Circuit or the Hague Convention.] Enforcement of the FRG Order The order of the FRG court is somewhat unusual in that it has specific and concrete steps for the return of the child to Israel. In this order the Respondent is required to turn the child over to the Petitioner forthwith, the court bailiff is directed to take the child from the Respondent and turn the child over to the Petitioner and Respondent is advised that failure to do so could result in her imprisonment. In many cases, particularly in Europe, the order of the court that grants a Petition for Return cannot be executed upon its face but instead relies upon a specific second order that enforces each and every one of the terms of the order for return. This procedure clearly causes delay in that at least two applications are required (Petition for Return and Executory Order). In some cases both orders are appealed in turn causing further delay. The language of this order is similar to the language of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), at Section 316: At the request of a [prosecutor or other appropriate public official] acting under Section 315, a [law enforcement officer] may take any lawful action reasonably necessary to locate a child or a party and assist [a prosecutor or appropriate public official] with responsibilities under Section 315.