Kufner v. Kufner

United States Court of Appeals
For the First Circuit

No. 07-1523

DOMINIK KUFNER,

Petitioner, Appellee,

v.

TINA KUFNER,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before
Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and Siler,* Senior Circuit Judge.

Thomas M. Dickinson for appellant.
Bradford N. Martin, with whom Gerald Nissenbaum was on brief,
for appellee.

March 7, 2008

*
Of the Sixth Circuit, sitting by designation.
 SILER, Senior Circuit Judge. In 2007, Dominik Kufner filed a

petition in the United States District Court for the District of

Rhode Island alleging that his wife, Tina Kufner, wrongfully

removed the couple’s two minor sons, J.K. and M.K., from Germany to

Rhode Island. He sought an order returning them to Germany in his

custody, pursuant to the Hague Convention on the Civil Aspects of

International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501

[hereinafter Hague Convention], as implemented by the International

Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. Tina

argued that returning their sons to Germany would create a “grave

risk of harm,” a defense to a petition under Article 13(b) of the

Hague Convention. The district court granted Dominik’s petition

and ordered that the sons be returned to Germany.

Tina Kufner appeals, arguing, inter alia, that the district

court erred by concluding that she had “wrongfully removed” the

sons and that the Hague Convention violates the equal protection

component of the Due Process Clause of the Fifth Amendment.

Because none of her arguments has any merit, we AFFIRM.

I.

Tina is a United States citizen and native of Rhode Island.

Dominik is a German citizen who owns a business in Munich, Germany.

They married in 1996 and settled in Munich. In 1998, they had

their first son, J.K., and in 1999 they had a second son, M.K.

Tina and Dominik began having marital problems and they separated

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in 2005. During the separation period, they informally agreed to

share time with their sons. At first, this arrangement worked well

because Dominik traveled often, but in early 2006 their

relationship began to deteriorate after Tina discovered graphic

photographs of the sons taken by Dominik.

Dominik took 49 photographs of the sons at his house in 2005.

Tina submitted 43 of them to the court in support of her Article

13(b) defense that her sons would face a grave risk of harm if

returned to Germany. The district court described 39 of the

photographs as relatively innocuous pictures of the children

playing and laughing, naked, in the living room of Dominik’s house.

The other four photographs were more graphic in nature. Dominik

stored the photographs on his computer.

Tina learned of the photographs in January 2006. In early

February 2006, Dominik spent ten days alone with the sons during

ski week, a German school holiday. After returning from the ski

week holiday, the sons began to display disturbing physical

symptoms, including bed-wetting, nervous eye twitching,

sleeplessness, and nighttime crying and screaming. The parents

blamed each other for the problems.

Tina’s German lawyer sent a letter to Dominik demanding an

explanation for the photographs. When she did not receive an

adequate response, she petitioned for sole custody in the German

court. Dominik feared that she would leave the country with the

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sons, so he obtained an order requiring her to deposit their

passports with the court. The German court ordered a home study

for both parents’ homes and talked with the sons in camera. It

then issued a written opinion, holding that the parents must

exercise joint parental custody, specifying the dates on which the

parents can have access to the sons and where they can travel with

them, and ordering that their passports be returned to Tina.

The next few months were comparatively peaceful, but in summer

2006, Dominik petitioned the German court for sole custody. The

court requested a social worker with the Department of Youth and

Families to conduct an evaluation of the parents and the sons. The

social worker recommended that the court deny his petition for sole

custody and expressed concern about the acrimony between the

parents. Also in summer 2006, the parents feuded over M.K.’s

medical care. M.K. had developed problems with his ear, nose, and

throat. Tina believed that he needed an operation on his adenoids,

but Dominik asserted that an operation was not medically necessary.

This dispute further increased the tension between the parents.

Tina petitioned the German court to suspend Dominik’s

visitation rights or, in the alternative, to permit only supervised

visitation. Four days later, she petitioned for permission to

relocate the sons to the United States. Without ruling on either

petition, the German court ordered an investigation of the

photographs. A “court-appointed company” was supposed to conduct

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this investigation, but, because of a file mixup, it never received

the photographs and it never conducted the investigation. Instead,

the GWG1 performed a custody evaluation, including an evaluation of

the photographs.

The GWG appointed a certified psychologist to interview each

member of the family. After conducting the interviews, she advised

the court by letter that both parents should retain contact with

the sons. The GWG later produced a “Psychological Expert Opinion”

that concluded that Dominik’s personality was within “the normal

range,” that the interactions between him and the sons were

positive and loving, and that they were happy, healthy, and

displayed age-appropriate development. The report concluded that

the photographs had not negatively affected the sons. It further

warned that the continuing deterioration of the parents’

relationship was harming them, and it noted that Tina was unable to

appreciate his role in raising them.

On October 18, 2006, without a prior hearing, the German court

issued a temporary “Ruling on Access and Contact,” which was to be

followed until the court determined the final merits of the custody

case. In this ruling, the court ordered that Dominik be given

rights of access to the sons and that the parents must refrain from

1
The GWG is the German Society for Scientifically-Based
Forensic and Legal Psychology-Work Group Law of Domestic Relations.
It is the psychological wing of the German Department of Youth and
Families.

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having disputes in their presence. The court concluded that the

photographs did not indicate that he was a pedophile and that he

did not inappropriately encourage sexualized behavior of the sons.

On November 12, 2006, the German court issued an injunction

structuring Dominik’s visitation rights over the Christmas

holidays. The injunction forbade Tina from traveling to the United

States with the sons. The court ordered her to deposit their

American passports with the Department of Youth and Families. On

December 20, 2006, the court conducted a hearing and met with the

sons in the absence of their parents. Later, at the same hearing,

the parents agreed to a settlement on visitation rights during the

holidays that conformed with the November 12 injunction. The

agreement required Tina to deposit the sons’ American passports

with the United States consulate and to refrain from traveling to

the United States over the Christmas holidays.

In January 2007, in direct violation of the German court

orders, Tina obtained the sons’ American passports from the

consulate and fled to the United States without notifying Dominik

or the German court. On January 31, 2007, Dominik filed a petition

in the district court seeking return of the sons to Germany in his

custody. While this case was pending, on February 16, 2007, he

obtained a temporary order from a German court awarding him full

custody.

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 Pursuant to Federal Rule of Civil Procedure 17(c) and with the

consent of the parties, the district court appointed Sharon O’Keefe

as guardian ad litem and attorney for the sons. O’Keefe

recommended that the district court (1) view all of the

photographs, (2) appoint an independent expert with clinical

training and expertise to determine whether the photographs were

pornographic, (3) consider the German child welfare agency’s view

on the photographs and its evaluation of the parents, and (4)

analyze the effectiveness of the German investigations. After

interviewing the sons, O’Keefe determined that they “had taken an

unhealthy view of their power and responsibility in the custody

determination, and that any more involvement of the children in the

proceeding would be significantly harmful.” O’Keefe reported that

the sons stated they were attached to their mother and, if asked,

they would want to live with her.

Upon O’Keefe’s recommendation, the district court ordered the

parents to take M.K. to a physician to address his medical issues.

After a sleep test, the physician diagnosed M.K. with mild to

moderate sleep apnea and recommended surgery to remove his tonsils

and adenoids, but he stated that this surgery was not urgently

needed.

The district court heard evidence from the parties. The heart

of Tina’s argument was the Article 13(b) grave risk of harm defense

based on the photographs of the sons and the alleged failure of

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German officials to take the photographs seriously. The district

court relied heavily on its court-appointed independent expert in

pediatrics, child abuse, child sexual abuse, and child pornography,

Dr. Carole Jenny. Specifically, the district court asked Dr. Jenny

whether (1) the photographs of the sons constituted child

pornography and (2) whether the behavior problems suffered by the

children were indications of sexual abuse.

Dr. Jenny reported that there was no evidence to suggest that

Dominik was a pedophile, that he was sexually aroused by children,

or that the pictures were pornographic. She approved of the German

investigations and stated that they were accurate assessments and

that their conclusions were consistent with their reported

observations. She determined that the symptoms that the sons

displayed were consistent with the stress in their lives caused by

the acrimonious custody dispute. She recommended that the sons not

undergo further sexual abuse evaluation because it would increase

their already-dangerous stress levels. Finally, she noted that

they may have been psychologically abused by both parents because

the parents’ acrimonious relationship played out in front of them.

O’Keefe agreed with Dr. Jenny’s report.

The district court granted Dominik’s petition for return of

the sons to Germany. Kufner v. Kufner, 480 F. Supp. 2d 491 (D.R.I.

2007). It held that the sons were wrongfully removed from Germany

in violation of the Hague Convention. It concluded that Tina

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failed to prove her Article 13(b) defense because she could not

show by clear and convincing evidence that the sons would face a

grave risk of harm if returned to Germany with their father. She

does not challenge this finding on appeal. The district court

conditioned the order of return on certain undertakings.

II.

Children who are wrongfully removed or retained within the

meaning of the Hague Convention are to be returned promptly unless

one of the narrow exceptions applies. 42 U.S.C. § 11601(a)(4).

The Hague Convention promotes two important principles. First, a

district court deciding a petition for return of a child has

jurisdiction to decide the merits of the wrongful removal claim,

but it may not decide the merits of the underlying custody dispute.

Whallon v. Lynn, 230 F.3d 450, 455 (1st Cir. 2000). Second, the

Hague Convention is generally intended to restore the pre-removal

status quo and to discourage a parent from engaging in

international forum shopping. Id. The vast majority of Hague

Convention petitions brought in the United States result in the

return of the children to their country of habitual residence.

Walsh v. Walsh, 221 F.3d 204, 222 (1st Cir. 2000).

Mootness

Dominik moved to dismiss Tina’s appeal as moot. He contends

that resolving this appeal on the merits could result in

conflicting custody orders and that the “ongoing exercise of

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continuing jurisdiction” over the custody dispute by the German

court renders this appeal moot. We deny this motion and resolve

the appeal on the merits because the appeal presents a live

controversy. Dominik’s argument confuses the dispute over the

petition to return under the Hague Convention with the underlying

custody dispute. We may decide the former but not the latter. See

Whallon, 230 F.3d at 455(holding that a court in the United States

faced with a petition for return of a child has jurisdiction to

decide the merits of the wrongful removal claim under the Hague

Convention, but it may not decide the merits of the underlying

custody dispute). We are not confronted with dueling custody

orders issued by courts in different countries because the district

court ruled on the merits of the petition for return only, not the

underlying custody dispute.

Wrongful Removal

Tina argues that the district court erred by concluding that

she had wrongfully removed her sons from Germany. In support of

this argument, she asserts that the removal of the sons was not

“wrongful” because she brought M.K. to Rhode Island for medical

treatment. However, she confuses “wrongful” removal under the

Hague Convention with her own legally-unsupported notion of

“justified” removal. Therefore, her argument fails.

To petition for the return of a child under the Hague

Convention, the petitioner must establish by a preponderance of the

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evidence that the child was “wrongfully removed or retained” within

the meaning of the convention. 42 U.S.C. § 11603(e)(1). A removal

or retention is wrongful when

(a) it is in breach of rights of custody attributed to a
person . . . either jointly or alone, under the law of
the State in which the child was habitually resident
immediately before the removal or retention; and
(b) at the time of the removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.

Hague Convention, art. III. Tina concedes that the sons’ regular

place of residence was Germany. Therefore, the only issues are (1)

whether Dominik had “rights of custody” over the sons under German

law and (2) whether he was exercising or would have exercised those

rights but for the removal. The district court correctly decided

both issues in favor of Dominik.

First, under the Hague Convention, rights of custody include

rights relating to the care of the child and the right to determine

the child’s place of residence. Hague Convention, art. V. Rights

of custody are distinguished from “rights of access,” with the

Hague Convention defining the latter as “the right to take a child

for a limited period of time to a place other than the child’s

habitual residence.” Id. Having rights of custody is necessary to

petition for return of a child, while having only rights of access

does not entitle a party to petition for the return of a child to

the place of habitual residence. Hague Convention arts. VIII &

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XXVI; Whallon, 230 F.3d at 454-55 (discussing remedies for

violation of custody rights and access rights).

Here, Dominik had rights of custody over the sons at the time

Tina removed them from Germany. He had rights relating to their

care and he had at least a shared right to determine their place of

residence. Under German law, where parents are married at the

birth of the child, they have joint custody over the child until

the operation of law (e.g., death of a parent) or a court order

terminates joint custody. At the time she removed the sons, she

and Dominik were undergoing divorce proceedings, but the

proceedings were not final and joint custody remained in effect.

The German court stated in its written opinion that it awarded the

parents joint custody pending the investigation and final

determination of the merits. This order was not suspended or

superseded before she removed the sons to Rhode Island. The German

court modified and updated its order to provide specific directions

to the parents for the custody of the sons over the holidays, but

it never awarded Tina full custody or eliminated Dominik’s joint

custody rights. These facts show that Dominik had rights of

custody within the meaning of the Hague Convention.

Second, Dominik would have exercised his rights of custody but

for Tina’s removal of their sons from Germany. He persistently

sought custody of the sons and visited them often. After this

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proceeding began, Dominik successfully petitioned the German court

for full custody of his sons on a temporary basis.

Whether M.K. needed medical care was irrelevant for purposes

of the wrongful removal determination because the analysis turns on

whether the removal was consistent with the rights of custody

established in the country of habitual residence. “Wrongful

removal” is a legal term strictly defined by the Hague Convention

and it does not require a balancing of the equities. Friedrich v.

Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993). Tina should have

litigated any issues relating to M.K’s medical care in Germany, the

country of his habitual residence. Moreover, regardless of the

applicable legal framework, the facts undermine Tina’s claim that

she brought M.K. to Rhode Island for emergency medical treatment.2

Therefore, the district court correctly concluded that the sons

were wrongfully removed from Germany.

Equal Protection

Tina argues that the Hague Convention violates the equal

protection component of the Due Process Clause of the Fifth

Amendment. In support of her argument, she claims that the Hague

Convention’s grave risk of harm standard is unconstitutional

because she is entitled to the less-demanding best interests of the

2
If treatment for M.K. truly motivated the removal, then there
would have been no reason to bring J.K., who did not need medical
attention. However, she brought both sons and she admitted that
she wanted to relocate to the United States with them. She
investigated schools in Rhode Island.

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child standard. She did not raise this argument before the

district court. We decline to address this argument because

arguments not advanced in the district court cannot be raised for

the first time on appeal. Teamsters, Chauffeurs, Warehousemen &

Helper’s Union, Local No. 59 v. Superline Transp. Inc., 953 F.2d

17, 21 (1st Cir. 1992). In all events, the argument is patently

without merit; the best interests of the child standard applies in

custody matters and, as we previously noted, custody is not the

issue in a Hague Convention case.

J.K.’s Right to Be Heard

Under Article 13 of the Hague Convention, the court may

“refuse to order the return of the child if it finds that the child

objects to being returned and has attained an age and degree of

maturity at which it is appropriate to take account of [the

child’s] views.” Hague Convention art. XIII. No part of the Hague

Convention requires a court to allow the child to testify or to

credit the child’s views, so the decision rests within the sound

discretion of the trial court. The district court did not abuse

its discretion by refusing to allow J.K. to testify.

Dr. Weintrob, a child psychiatrist, testified that further

questioning of J.K. could be harmful because repeatedly confronting

him about the pictures could make him anxious and distort his

ability to distinguish reality from fantasy. Additionally, the

sons had been questioned enough and further questioning would not

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be informative. The district court assumed that the sons, if

asked, would express a desire to remain in the United States with

their mother. It also noted that they expressed a desire to remain

in Germany when asked by the GWG in Germany. The district court

properly gave little weight to their wishes because of their young

ages, lack of maturity, and susceptibility to parental influence.

The district court did not abuse its discretion when it concluded

that it would be harmful and pointless to allow J.K. to testify.

Undertakings

The district court conditioned the order of return on certain

undertakings. Tina claims that the undertakings are insufficient

to protect her and the sons upon their return to Germany. However,

her argument fails because we have reversed a district court’s

imposition of undertakings as insufficient to protect only when

there was a grave risk of harm and we concluded that the district

court’s undertakings were insufficient to mitigate that grave risk

of harm. Danaipour v. McLarey, 286 F.3d 1, 25-26 (1st Cir. 2002)

(holding that undertakings protecting a child from grave risk for

only a very limited time are insufficient to defeat the grave risk

defense); Walsh, 221 F.3d at 220-21 (holding that while

undertakings may sometimes mitigate a grave risk, undertakings were

insufficient where a parent had repeatedly violated court orders in

both countries and there was every reason to believe he would

violate the undertakings). Here, the district court rejected

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Tina’s Article 13(b) defense and found that there was no grave risk

of harm.

While there may be other considerations, such as international

comity, that justify reversing or modifying a district court’s

imposition of undertakings even in the absence of a grave risk of

harm, such circumstances are not present here. See Danaipour, 286

F.3d at 22 (discussing the importance of international comity when

considering undertakings). The district court ordered Dominik to

secure dismissal of German criminal charges against Tina that arose

out of this dispute after he represented that he could do so. It

also ordered Dominik to act quickly to obtain medical care for M.K.

and to allow Tina reasonable access and visitation until a German

court orders otherwise. These undertakings do not prejudice Tina

and they do not offend notions of international comity. The

district court did not err by imposing the undertakings.

AFFIRMED.

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