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Baker v. Baker

United States District Court, M.D. Tennessee, Nashville Division

January 23, 2017

KENNETH D. BAKER, Petitioner,
v.
BRIANNE M. BAKER, Respondent.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          KEVIN H. SHARP UNITED STATES DISTRICT JUDGE

         This matter arose upon the Petition for Return of Children pursuant to the Hague Convention on the Civil Aspect of International Child Abduction (the “Hague Convention”), and the implementing legislation in the United States, the International Child Abduction Remedies Act (“ICARA”), set forth in 42 U.S.C. § 11601, et seq.

         Petitioner Kenneth Baker requests this Court to enter an Order directing that the parties' minor children, LMB and MAB, be returned to Germany. He alleges that the children's mother, Respondent Brianne Baker, unlawfully removed the children on or about May 3, 2016, and has wrongfully retained them in the United States. (Docket Entry No. 1, Verified Petition). Petitioner also claims that he has rights of custody of the children under the law of Germany in that he is their natural father and is married to Respondent; and that he was actually exercising these rights within the meaning of the Hague Convention at the time of their wrongful retention. (Id.).

         Respondent contends that the children's habitual residence is the United States, Petitioner was not exercising his rights of custody at the time of their removal, and Petitioner consented to their removal to the State of Tennessee. (Docket Entry No. 8). Petitioner responds that he did not consent to the removal of the children from Germany to reside in Tennessee, that he did not acquiesce to their retention in Tennessee, but immediately took steps to obtain their return pursuant to the Hague convention. (Docket Entry No. 1).

         The Court held a bench trial in this matter on September 14-15, 2016 and October 13, 2016, after which the parties were instructed to file post-trial briefs. Those briefs were filed on November 21, 2016.

         Having reviewed the parties' post-trial briefs, the record, the exhibits received in evidence, and the testimony of the witnesses, after considering their interests and demeanor, the Court enters the following Findings of Fact and Conclusions of Law. Except where the Court discusses different testimony on a specific issue, any contrary testimony on a specific matter has been rejected in favor of the specific fact found. Further, the Court omits from its recitation facts, which it deems to be immaterial to the issues presented.

         I. FINDINGS OF FACT[1]

         Petitioner and Respondent were married on April 12, 2004, in Clarksville, Tennessee. The parties have two minor children, LMB and MAB, who are the subject of the Petition. LMB was born on December 8, 2005, and MAB was born on January 6, 2008.[2]

         Petitioner is a Chief Warrant Officer 3 in the United States Army. His job often required that he and his family relocate to new duty stations around the United States and in Germany. The parties first lived in Clarksville, Tennessee and move to Honolulu, Hawaii after their marriage in 2004. Prior to the birth of LMB, Respondent moved back to Clarksville, Tennessee to live with her parents while Petitioner was deployed. When LMB was approximately 10 months old, Respondent moved back to Hawaii to be with Petitioner. After MAB was born in 2008, Respondent and the children moved back to Tennessee while Petitioner trained in Arizona. After training, the parties moved to Fort Polk, Louisiana and stayed approximately three years.

         In 2012, the Army issued Orders, with an April 1, 2012 reporting date, taking Petitioner and his family to Wiesbaden, Germany. Petitioner, Respondent, and the children resided in Wiesbaden for three years in a house located off base. While residing in Wiesbaden, the children attended school, celebrated birthdays, attended German festivals, and were active in extracurricular activities. Specifically, LMB was involved in cheerleading, participated in dodgeball, and played soccer on a team coached by Petitioner. MAB was involved in dance and baseball.

         On April 22, 2015, the Army issued Orders, with a July 13, 2015 reporting date, [3] to Stuttgart, Germany. Thereafter, the parties and their children made a trip to the United States for four weeks during the summer of 2015 visiting family. During the trip, Respondent told Petitioner she did not want to return to Germany because “she felt [she] was already done with her marriage at that point.” (Docket Entry No. 33 at 107). She felt “[she] had been hurt too many times . . .” (Id.). Petitioner thereafter promised Respondent that she and the children would be able to return to Tennessee if things did not work out in their marriage.[4] Relying on this promise, Respondent ultimately agreed to return. It was actually a “last-minute decision right before [they] were supposed to go to the airport to . . . give it one last shot.” (Id. at 106-107).

         Petitioner and his family ultimately moved to Stuttgart, Germany. There, the children attended school, participated in Girl Scouts, enjoyed trips to the mineral bath, and played with friends. While in Stuttgart, the parties continued having difficulties in their marriage. On February 25, 2016, the issues in their marriage came to a head. On that evening, Petitioner had a few drinks after work. When he returned home, he consumed two beers and then asked his wife if she would take him and the children to get dinner. The argument escalated and Petitioner stated that he was going to file for divorce in Germany. At some point during the conversation, Respondent hit him with her iPad. Petitioner allegedly became fearful for his safety, so he took the children and drove to the Military Police (“MP”) station, which was one-quarter mile from the family's home.

         When Petitioner arrived at the MP station, the desk sergeant smelled alcohol on his breath, which led to him being charged with a DUI. After Petitioner completed his interview with the MP, a member of his command, Major Benjamin Terwilliger, picked up Petitioner and the children and took them to a hotel for the evening. At some point, on that same evening, Respondent, who admitted to hitting Petitioner, was apprehended and charged with domestic violence. After the February 25, 2016 incident, the parties separated and Petitioner moved into the barracks. The children returned to the house to stay with Respondent, but Petitioner continued to have visitation with the children by agreement of the parties.[5]

         Prior to the February 26, 2016 incident (in October 2015), the parties began considering the possibility of requesting an Early Return of Dependents (“EROD”). An EROD is a mechanism by which a family member of a service member can have their family return to the United States paid for by the military. As part of the EROD process, a service member and his spouse must go through counseling and have a chaplain sign off on the paperwork. In an effort to reconcile with his wife, Petitioner utilized the counseling services provided in connection with the soldier-initiated EROD paperwork in order to work on the marriage.[6]

         According to Petitioner, when he did not complete this paperwork, a counselor contacted his command. Thereafter, command ordered him to complete the EROD paperwork. Petitioner, in order to comply with command's order, continued to work on getting signatures on the EROD paperwork, but dragged his feet on completing it. On February 26, 2016, after the events of the prior evening, Petitioner realized that he and Respondent would not be able to reconcile. After this realization, Petitioner, in order to comply with command's lawful order, prepared a Memorandum and Personnel Action for the early return of his wife and children.

         In submitting this document, though, Petitioner allegedly did not intend to allow his children to leave Germany. Rather, Petitioner submitted this document knowing that he was going to file for custody in German Civil Court. On this document, Petitioner listed the requested return date of June 26, 2016, so that he would have time to file for custody in Germany and prevent EROD orders from being issued. Petitioner then filed a petition for temporary custody of the children in German Civil Court on March 21, 2016. On April 15, 2016, he filed a petition for permanent custody in German Civil Court. Based on advice that he received from JAG, Petitioner believed that by filing for custody in Germany, he would prevent EROD orders from being issued.

         The German Civil Court set a hearing for May 4, 2016. On April 27, 2016, in anticipation of the German Court proceedings, Petitioner sent Respondent an email asking for her not to leave with the children. On April 28, 2016, Respondent was served with a summons to appear in Court on May 4, 2016, via email, and she was personally served on April 29, 2016.[7]

         After receiving the paperwork and summons, she made an appointment to speak with JAG the next day. That evening she gathered the paperwork, [8] put it in a folder, and placed her keys on top. The following day, after sending her children off to school, she noticed her keys and certain documents were missing. (Docket Entry No. 33 at 124-125). Respondent had a friend drive her Major Terwilliger's office, and he asked if Petitioner still had a key to the apartment, to which she replied “yes.” (Id. at 127). Major Terwilliger then contacted Petitioner to bring the key.[9]

         During this meeting, Respondent and Major Terwilliger discussed the possibility of an emergency EROD. Respondent followed up this meeting with an email to Major Terwilliger dated April 30, 2016. (Emails between Respondent and Major Terwilliger, Respondent's Exhibit 17.) In this email, Respondent plead for “immediate orders for myself and my children to leave Germany.” As part of the basis for her request, Respondent states that since the EROD paperwork with the June 26, 2016 leave date was submitted, her “estranged spouse has tried many tactics to override that decision.” (Id.).

         On May 3, 2016, Respondent met with Major Terwilliger to sign the Emergency EROD papers. The return date listed on the Emergency EROD was May 6, 2016. The Emergency EROD was command-directed and Petitioner had no knowledge it was being executed until after the fact. Thereafter, Respondent asked Major Terwilliger to retrieve the passports. On that same day, Petitioner was ordered by command to give up the passports. In fact, the Emergency EROD orders “direct the service member to provide their passports in order to facilitate travel.” (Docket Entry No. 34, Emergency EROD Orders, Petitioner's Exhibit 13). Petitioner ultimately gave up the passports.

         Before a German Court could enter a custody Order, Petitioner removed the children from Germany. On May 3, 2016, Petitioner took the children and flew to the United States, despite having knowledge of the custody hearing that was scheduled for the next day in German Civil Court. Respondent's parents purchased the one-way plane tickets for Respondent and the children.

         When Petitioner appeared for the German Court custody hearing on May 4, 2016, and Respondent did not appear, Petitioner grew concerned that Respondent had left with the children. Petitioner then called the school in an effort to locate his children and learned that the children had not been in school all week. After realizing that the children were no longer in Germany, he filed a police report with the German police, filed a Request for Return of the children, and called the Clarksville Police Department.

         On June 17, 2016, Petitioner's Verified Petition requesting the return of the children was filed with this Court. See (Docket Entry No. 1).[10]

         II. CONCLUSIONS OF LAW

         A. The Hague Convention and ICARA

         The Hague Conference on Private International Law adopted the Hague Convention on the Civil Aspects of International Child Abduction in 1980. T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11. In 1988, the United States ratified the treaty and passed implementing legislation, known as the International Child Abduction Remedies Act, 102 Stat. 437, 42 U.S.C. § 11601, et seq. See generally Abbott v. Abbott, 560 U.S. 1, 130 S.Ct. 1983, 1989-1990, 176 L.Ed.2d 78 (2010).

         ICARA postulates that an individual seeking the return of a wrongfully retained child may “commence a civil action by filing a petition” in a court with jurisdiction over the action. 42 U.S.C. § 11603(b). The federal district courts and state courts have concurrent jurisdiction over such actions. 42 U.S.C. § 11603(a-b). When faced with a petition for return of a child under the Hague Convention, the courts of signatory nations may only determine the merits of the abduction claim; the merits of the underlying custody claim are not to be considered. Hague Convention, Article 19; Friedrich v. Friedrich,983 F.2d 1396, 1400 (6th Cir. 1993) (“Friedrich I”). The Convention seeks to “restore the ...


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