Emanuel Friedrich v. Jeana Michele Friedrich, David Harper and Shirley Harper
1996 WL 107509, 1996 U.S. App. LEXIS 4394, 78 F.3d 1060 (1996)
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Rule of Law:
Under the Hague Convention on the Civil Aspects of International Child Abduction, a parent with de jure custody rights is deemed to be 'exercising' those rights so long as they have not clearly and unequivocally abandoned the child. The 'grave risk of harm' defense to returning a child requires a showing of imminent danger or serious abuse that the home country's courts cannot remedy, not merely the psychological stress of adjustment and separation from the abducting parent.
Facts:
- Jeana Friedrich, an American servicewoman, and her husband Emanuel Friedrich, a German citizen, lived in Germany with their son, Thomas.
- Thomas was born in Germany and was a resident there.
- On July 27, 1991, the couple separated after an argument, and Jeana Friedrich took Thomas to live with her on the nearby army base.
- On July 29, 1991, Emanuel Friedrich telephoned Jeana and arranged a visit, spending the afternoon with Thomas.
- The parents met on August 1, 1991, to discuss their separation and agreed that Emanuel would have future visitations with Thomas, scheduling the next visit for August 3.
- In the early morning of August 2, 1991, Jeana Friedrich took Thomas and flew from Germany to her family's home in Ironton, Ohio, without informing Emanuel Friedrich.
Procedural Posture:
- After the child's removal, Emanuel Friedrich obtained an order from a German Family Court awarding him custody.
- Emanuel Friedrich filed a petition for the return of his son in the U.S. District Court for the Southern District of Ohio under the Hague Convention.
- The district court initially denied Mr. Friedrich's petition.
- Mr. Friedrich appealed to the U.S. Court of Appeals for the Sixth Circuit, which reversed the denial and remanded the case for further proceedings (Friedrich I).
- On remand, the district court held a new hearing and determined that Mr. Friedrich was exercising custody rights and that no defenses applied, ordering the child's return to Germany.
- The district court stayed its order pending a second appeal to the Sixth Circuit.
- Jeana Friedrich (appellant) appealed the district court's order to the U.S. Court of Appeals for the Sixth Circuit; Emanuel Friedrich was the appellee.
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Issue:
Under the Hague Convention on the Civil Aspects of International Child Abduction, is a child's removal wrongful where one parent has de jure custody rights and has maintained some contact, and can the 'grave risk of harm' defense be established by showing the child would suffer adjustment problems and trauma from being returned to the country of habitual residence?
Opinions:
Majority - Boggs, Circuit Judge
Yes, the child's removal is wrongful, and no, the 'grave risk of harm' defense cannot be established by such showings. The unilateral removal of a child is wrongful under the Hague Convention when the non-removing parent possesses and exercises custody rights under the law of the child's habitual residence, and the potential for adjustment-related trauma upon return does not constitute a 'grave risk of harm.' The court reasoned that the term 'exercise' of custody rights should be interpreted broadly to avoid having U.S. courts decide the merits of a foreign custody dispute. Under German law, Emanuel Friedrich possessed de jure joint custody rights. His actions, such as visiting his son and arranging future visits, demonstrated he had not clearly and unequivocally abandoned the child, which is the only way he could fail to 'exercise' his rights. Therefore, the removal was wrongful. Furthermore, the court held that the affirmative defense of 'grave risk of harm' under Article 13b is to be construed narrowly. The psychological stress a child might experience from being returned to their country of habitual residence and separated from the abducting parent amounts to normal 'adjustment problems,' not a 'grave risk.' Allowing such a claim would reward the abducting parent for their wrongful act. The defense is reserved for extreme situations, such as returning a child to a war zone, or where there is serious abuse and the home country's courts are unable or unwilling to provide adequate protection.
Analysis:
This decision significantly shaped the jurisprudence of the Hague Convention in the United States by establishing a broad, parent-friendly definition of 'exercising custody rights' and a very narrow interpretation of the 'grave risk of harm' defense. It reinforces the Convention's primary goals of deterring international child abduction and ensuring that custody disputes are litigated in the jurisdiction of the child's habitual residence. By setting a high bar for defenses, the ruling makes it much harder for an abducting parent to prevent a child's prompt return, thereby strengthening the treaty's enforcement mechanism and discouraging 'forum shopping' for more favorable courts.
