## Facts

- An American servicemember mother and a German citizen father married and lived in Germany, where their son, Thomas, was born.
- The parents separated in July 1991 when Thomas was about two years old.
- Shortly after separation, the mother removed Thomas from Germany to Ohio without informing the father.
- The father obtained a German court order granting him custody and sought Thomas’s return under the Hague Convention and ICARA in federal district court in Ohio.
- The district court initially denied return; the Sixth Circuit reversed and remanded for findings on whether the father was exercising custody rights at removal and whether any Convention defenses applied.
- On remand after an evidentiary hearing, the district court found the father had and was exercising custody rights under German law, found the mother failed to prove any defense, and ordered Thomas returned to Germany; the return order was stayed pending appeal.

## Issues

1. What constitutes “exercise” of custody rights under the Hague Convention when the left-behind parent has legal custody rights but limited recent day-to-day caretaking.
2. Whether the mother proved an Article 13(b) defense that return would expose the child to a grave risk of physical or psychological harm or place the child in an intolerable situation.
3. Whether the mother proved other affirmative defenses, including consent or acquiescence to the removal.

## Decision

- The Sixth Circuit affirmed the district court’s order requiring Thomas’s return to Germany.
- The court held the father possessed custody rights and was exercising those rights at the time of removal.
- The court held the mother failed to carry her burden to establish any affirmative defense, including grave risk and consent/acquiescence.
- The court reiterated that Hague/ICARA proceedings determine the proper forum for custody, not custody on the merits, and that custody questions should be addressed by courts in the child’s habitual residence after return.

## Legal Principles

- A removal is “wrongful” under the Hague Convention when it breaches custody rights under the law of the child’s habitual residence and those rights were being exercised at the time of removal.
- For the “exercise” element, courts should avoid detailed evaluations of parenting quality; absent clear abandonment, a parent with custody rights is treated as exercising them when maintaining or seeking regular contact with the child.
- Article 13(b)’s grave-risk exception is narrowly construed and is not satisfied by ordinary disruption or distress associated with relocation; it requires a serious threat to the child’s safety or similarly extreme circumstances.
- Consent or acquiescence requires clear evidence; prompt pursuit of legal remedies and opposition to the removal weighs against these defenses.
- The respondent bears the burden to prove the Convention’s affirmative defenses under ICARA.

## Conclusion

The court ordered the child’s return to Germany because the father was exercising custody rights at the time of removal and the mother did not prove any Hague Convention defense, leaving custody determinations to the German courts as the proper forum.


Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996)