dissenting.
For reasons set forth below, I believe the decision of the trial judge in denying the return of Thomas Friedrich to Germany should be affirmed. The trial judge’s laudable efforts in seeking a voluntary resolution of the dispute over the child’s custody and his determination that the mother did not wrongfully remove the child from Germany are compatible with the objectives and imperatives of The Hague Convention on the Civil Aspects of International Child Abduction.
The findings of fact made by the judge shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Fed.R.Civ.P. 52(a). I believe the trial judge’s decision to deny return of the child to Germany is supported by the evidence produced at trial and is therefore not clearly erroneous.
Respondent testified, “[h]e threw everything I owned and my baby owned out of the house. There was nothing left in that house.” Petitioner’s testimony corroborates this:
Question: ... [with] regard to your asking her to leave, requesting her to leave, and removing her personal belongings and your son’s personal belongings into the hallway outside the apartment. Did that occur?
Answer: yes, sir.
Focusing on the totality of the testimony given, there may be a dispute as to whether petitioner threw out respondent and her son however, ’the trial judge sitting as trier of fact, determining credibility of the witnesses and the value of testimony given, found that petitioner expelled the wife and child from the apartment and terminated actual exercise of his parental custody rights over the child. This finding by the trial judge is not clearly erroneous.
A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake had been committed. Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. Anderson, 470 U.S. at 573, 105 S.Ct. at 1511. I have no definite and firm conviction that a mistake has been made.
With regard to the treaty itself, Article 13 provides:
... the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that — a the person, ... *1404having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention ....
In defining the rights of custody, Article 5 of the Convention includes rights relating to the care of the person of the child and the right to determine the child’s place of residence. By expelling the child from the apartment, petitioner gave up his right to determine the child’s place of residence which means that there was no right of custody to assert in the district court. Since there was no right of custody because petitioner gave it up, there was no breach of the rights of custody. Thus, removal was not wrongful under the terms of The Convention.
For these reasons, I believe the district court’s decision should be affirmed.