What happens when a German family court, a Michigan family court, and a U.S. District Court all get involved with the same international child abduction case to return wrongfully removed children at the same time? One Michigan family just found out.
Father and Mother share two children. The mother, alleged that the children were wrongfully removed from Germany to the state of Michigan by their Father.
From the time of their births, the children lived with both parents in Plymouth, Michigan – about 20 miles from Michigan Stadium in Ann Arbor. Then the family moved to Germany in 2014. The children visited the United States multiple times during the time they lived in Germany.
The parties agreed that the father could take the children to visit relatives in the United States for the summer of 2020 until early September. However, the Father never returned to Germany with the children despite the Mother’s demands that he do so.
In November, the Mother filed a Hague return petition in U.S. District Court in Michigan. They tried mediation, but mediation was a failure.
Concurrently with the federal Hague action, [Mother] also filed a UCCJEA action in the family division of the Wayne County Circuit Court to register and enforce a Germany custody order requiring the return of the children from Michigan to their home state in Germany.
In December, a Wayne County family court judge ordered the Father to bring the children to state court so the Mother could return to Germany with the children in compliance with the German family court order awarding the Mother custody of the children.
In January, the Mother filed a motion to voluntarily dismiss the Hague return action because the federal Hague petition as moot after the children were returned to Germany in accordance with the Wayne County family court ruling.
But incredibly, the father opposed the dismissal of the mother’s Hague petition.
Florida International Child Custody
I’ve written and spoken about international child custody cases under the Hague Convention and the UCCJEA before. The Hague Convention seeks to deter child abductions by a parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”
The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The Hague Convention is implemented in the United States through the International Child Abduction Remedies Act. What is unique about the Act is that Congress expressly provided for both original and concurrent federal jurisdiction. This means a parent has the option of either filing the petition in a state family court, or a federal U.S. district court.
Unlike the U.S. however, many countries are not signatories or treaty partners with us in the Hague Convention. That means that you cannot file a Hague return petition here, because both countries have to be treaty partners. Fortunately, when one of the countries is not a signatory to the Hague Convention, the UCCJEA may provide relief in state court.
Florida, Michigan, and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.
That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Michigan. The ultimate determining factor in a Michigan case then, is what is the “home state” of the child.
Alternatively, Michigan could possibly hear the case if it was the Home State of the child within 6-months before filing or the children are in Michigan and the court has emergency jurisdiction.
Back in Michigan federal court, on March 15, 2022, a U.S. Magistrate Judge issued a report recommending that the mother’s motion to dismiss be granted, and that this matter be dismissed with prejudice.
The Magistrate Judge explained that the only relief available under the Hague Convention petition is return of the children to Germany. Because this relief has already been affected by the Wayne County family court judge, the federal Hague petition is moot.
The father could not, as the respondent, obtain return of the children to the United States by continuing to litigate the Mother’s petition. Nevertheless, the father objected to the Magistrate Judge’s Report and Recommendation and asked for a trial.
The U.S. District Judge reviewed the Father’s objection, noted that it had failed to include any argument or cite to any legal authority holding contrary to the conclusions reached by the Magistrate Judge, and failed to identify any specific factual issues the Magistrate Judge erred on.
Accordingly, the Father was found to have waived any objection to the substantive analysis of the Magistrate Judge’s Report and Recommendation.
The Magistrate Judge’s order is here.