## Facts

- Guido Sten Ponath (father), a German citizen, and Jeri Lynn Ponath (mother), a U.S. citizen residing in Utah, married in Utah in October 1990 and had one child (born July 1991).
- The family lived in Utah until November 1991, then traveled to Germany; the parents disputed whether the move was intended to be temporary or permanent.
- While in Germany, the father engaged in repeated verbal, physical, and emotional abuse toward the mother; the court found he used threats and abuse to keep the mother and child from returning to Utah.
- The court found the father later told the mother she could return to the United States with the child if she wished to live without him.
- The mother returned to Utah with the child in September 1992 and remained there.
- The father came to Utah in early 1993 and was arrested on March 1, 1993, for allegedly attacking the mother’s sister-in-law while attempting to see the mother and child.
- In July 1993, the father filed a federal petition under ICARA and the Hague Convention seeking the child’s return to Germany; the court held an evidentiary hearing in August 1993.

## Issues

1. Whether the father proved a “wrongful removal” under the Hague Convention by showing Germany was the child’s habitual residence and the removal breached his custody rights that he was exercising.
2. Whether, even if the removal were wrongful, the mother proved the Article 13(b) defense that return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation.

## Decision

- The court denied the petition for return of the child.
- The court held the father did not carry his burden to prove wrongful removal, relying on the contested nature of the move to Germany, the short and unstable stay, and the father’s consent to the mother’s departure with the child.
- Independently, the court held that even assuming wrongful removal, the mother proved an Article 13(b) grave-risk defense based on the father’s abusive conduct and related violent behavior.

## Legal Principles

- Under ICARA and the Hague Convention, a petitioner seeking return must prove the child’s habitual residence immediately before removal, a breach of custody rights under that law, and actual exercise of those rights at the time of removal.
- A parent’s consent or acquiescence to the child’s departure can defeat a claim of “wrongful removal.”
- Hague Convention defenses are narrowly construed, but Article 13(b) permits a court to refuse return if the respondent proves return would expose the child to a grave risk of physical or psychological harm or place the child in an intolerable situation.
- Hague Convention proceedings determine the remedy of return, not the merits of custody; when return is denied, custody disputes proceed under applicable domestic law.

## Conclusion

The court refused to order the child’s return to Germany because the father failed to establish wrongful removal and, in any event, the evidence of abuse and violence showed that return would create a grave risk of physical or psychological harm under Article 13(b).


In re Application of Ponath, 829 F. Supp. 363 (D. Utah 1993)