United States District Court, W.D. Washington Seattle.
RICHARD A. JONES, District Judge.
This matter comes before the court on Frank Rehder's petition for return of his son, ARDR, to Germany. Dkt. # 1. He brings his petition under the Hague Convention on the Civil Aspects of International Child Abduction. He alleges that, Tanya Rehder, an American citizen and the mother of his son, wrongfully removed the child from Germany and brought him to Bellingham, Washington. The court conducted hearings in this matter on October 17, 2014, November 7, 2014 and December 3, 2014 and has received and reviewed hundreds of pages of declarations from both parties. For the reasons set forth below, the court GRANTS the petition and orders the return of ARDR to Germany.
This case arises from a troubled relationship between the parents of the child at issue. Frank Rehder and Tanya Rehder met in England in 2007. Dkt. # 27, ¶ 3. Shortly after they started dating, Frank informed Tanya that in 2003 he had entered into an illegitimate marriage with a woman named Shuang Mu. Id.; Dkt. # 27-2, p. 8. Although still married to Shuang, he assured Tanya that he was in the process of obtaining a divorce. Dkt. # 27, ¶ 3. As their relationship grew closer, Frank asked Tanya to move into the apartment next door to the apartment that he shared with Shuang. Dkt. # 27, ¶ 4. Tanya agreed and moved in at some point in November 2007. Id. Although Tanya's move did not go over well with Shuang, the parties carried on with this living arrangement through April of 2008. Id.
At that time, Tanya decided to move to New York City to attend acting school. Id. Frank followed her there in May of 2008. Dkt. # 27, ¶ 5. Frank showed Tanya what he represented to be divorce papers evidencing the end of his marriage to Shuang. Id. Frank then proposed to Tanya and they married in New York City on May 19, 2008. Id.
In February 2009, Frank and Tanya moved back to England. Dkt. # 27, ¶ 6. Both parties concede that they argued frequently - indeed, neither one has claimed that they experienced significant periods of contentment during their marriage. Dkt. # 27, ¶ 6. Despite their discord, they conceived a child and decided to continue living and working together in England through August 2010. Id. One month prior to the birth of their child, the couple moved to Leer, Germany to live with Frank's mother. Dkt. # 27, ¶ 7. Their son, ARDR, was born on September 10, 2010 in Germany. Id.; Dkt. #1, ¶ 11.
ARDR lived in Germany from the date of his birth until he was removed by his mother to Bellingham, Washington. Neither party has described the years in Germany leading up to Tanya and ARDR's departure, but it is clear that just before they left, Frank and Tanya's relationship had become increasingly strained. On July 13, 2013, in a heated exchange over Google Chat, Frank had told Tanya to "use my card and f___ing go to America and never come back." Dkt. # 27-2, pp. 49-50. A few days later, on July 18, 2013, he had sent her an email stating "Please respect that I will no further contact anymore. If [ARDR] will get older he will find a letter at my moms house why I cannot re-live [my other son's] story again in my life and decided this way. I will care for him, but it better ends with a big pain than keeps going on with pain and no end." The email goes on to discuss Frank's poor health and the allocation of insurance money in the event of his death. Dkt. # 27-2, p. 63.
About a month after these communications, on August 19, 2013, Tanya and ARDR boarded a plane headed for Bellingham, Washington. Dkt. #27, ¶ 13. Frank had knowledge of their departure. He gave Tanya permission to use his credit card to purchase the tickets and he drove her and the child to the airport. Dkt. # 27, ¶ 19; Dkt. # 27-2, p. 48. The parties dispute whether this was a permanent move: Tanya claims that it was permanent and Frank consented to it, while Frank claims it was a "relationship break" and that he allowed his son to go with his mother temporarily, until he and Tanya could work things out.
After arriving in Washington, in September 2013, the child began attending school and also began receiving health benefits. Dkt. # 27-2, p. 86, 124. Tanya informed the school that she and the child had planned to return to Germany for three weeks in November 2013, but that they would come back to Washington in December. Dkt. # 25-2, p. 21-22. Tanya also informed the school that Frank eventually planned to join them in Washington. Id.; Dkt. # 25-2, p. 29.
Emails exchanged between Tanya and Frank show that Tanya wished to stay in Washington, but that the couple was trying to work on their relationship. Dkt. #27-2, pp. 100-09. In October 2013, the couple applied for and began receiving benefits for their child from the German government. Dkt. # 27-2, p. 109. In connection with this application, Tanya indicated to the German government that she was at least a part-time resident of Germany. Dkt. # 7-6, pp. 26, 49, 65 (multiple documents evidencing residence in Germany). On November 16, 2013, Tanya and the child returned to Germany. Dkt. # 27-2, p. 59. They stayed with Frank and it appears that the couple mended their relationship during this period. Dkt. # 27-2, p. 113; Dkt. # 25-2, p. 29. On December 5, 2013, Tanya and the child returned to Washington. Dkt. #27-2, p. 54. On December 11, 2013, Tanya emailed Frank and stated "I do love and care for you and miss you and do feel it's right to move forward together." She also indicated that she was looking into IT jobs and gyms for him here in Washington. Dkt. # 25-2, p. 14. On December 16, 2013, Tanya emailed Frank again and stated "I do want to be together with you... I do also miss you and love you very much" and that their son "misses you tons." Dkt. # 25-2, p. 13. She also advised the child's school that "things went really well in Germany, " that Frank planned to join them in Washington, and that she and the child might be traveling again to Europe in February or March of 2014. Dkt. # 25-2, pp. 29, 39.
Frank flew to Washington on December 31, 2013. He stayed with Tanya and their child until January 11, 2014. Dkt. 27, ¶ 25. During this trip, Frank signed a form that allowed Tanya to travel with their child between Washington and Canada. Dkt. # 27-2, p. 149. After returning to Germany, Frank continued to engage in Skype calls with Tanya and his son. Dkt. # 27-2, p. 111. However, towards the end of January 2014, the couple's relationship soured yet again. It became clear that Frank would not be joining them in Washington and that Tanya had no intent of returning to Germany or returning their child to Germany. Dkt. # 25-2, p. 24. On February 5, 2014, Frank sent an email to the child's school informing the administration that he has shared custody and that his child was being wrongfully retained by Tanya in the United States. Dkt. # 25-2, p. 25. On February 19, 2014, Frank emailed Tanya and expressly stated that he never consented to their son staying in Washington permanently. Dkt. # 38, p. 8.
In March, 2014, Frank attended a parent-teacher conference call relating to his son's schooling. Dkt. # 25-2, p. 22. On April 8, 2014, Frank attempted to visit his son in Washington, but was stopped at the Canadian border. The border police contacted Tanya and she claimed that Frank was abusive. Dkt. # 27, ¶ 37. On May 16, 2014, Tanya filed a petition for invalidity of marriage in Whatcom County and as part of that case sought a custody determination regarding ARDR. Case No. 14-3-00373-1. Tanya made no mention of abuse of any kind in that petition. Dkt. # 25-2, p. 70.
On May 27, 2014, the United States Central Authority sent a letter to the Whatcom County court advising that Frank had initiated proceedings under the Hague convention and that the state court should not issue a custody determination until the Hague issues were resolved. Dkt. # 27-2, p. 41. On August 13, 2014, Frank filed his Hague petition with this court. Dkt. # 1.
As part of the proceedings in this matter, this court allowed Frank limited visitation with his son. Dkt. # 14. Frank came to the United States to appear in-person at the November 7th hearing before this court and during that time visited with his son over the course of several days. The visitation was completed without incident. At no time during these multiple hearings did Tanya Rehder voice any concerns regarding any alleged abuse of the child by Frank Rehder.
Additionally, Frank submitted several third-party declarations describing his relationship with his son. Ms. Amber Holly Chin Owen stated that the relationship between Frank and his son was "caring, committed and completely loving - the bond between Mr. Rehder and his sons was evident and strong." Dkt. # 7-2, p. 3. Frank's mother, whom the couple had lived with, stated "ARDR was very attached to my son. Depending on the time that had my son, they were always together, have done a lot together." Dkt. # 7-3, p. 3. Frank's former partner and the mother of his other son, Ms. Simon Hodtke, stated that Frank "is intend to do the best for his child, always" and that he has made significant efforts to visit with his children and remain part of their lives. Dkt. # 7-5, p. 3. Ms. Hodtke also stated that Frank never exhibited abusive behavior toward her or their child and that any accusations in this regard were shocking to her. Dkt. # 25-2, p. 68.
The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 49 (the "Hague Convention" or the "Convention"), was adopted in 1980 by the Fourteenth Session of the Hague Conference on Private International Law. The Convention's goal is "to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and... to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, Art. 1. Both the United States and Germany are signatories to the Convention. U.S. Department of State, Bureau of Consular Affairs, Hague Abduction Convention Country List, http://travel.state.gov /content/childabduction/english/country/hague-party-countries.html (last visited December 8, 2014). The United States implemented the Convention through the enactment of the International Child Abduction Remedies Act (ICARA) (codified as amended at 22 U.S.C. §§ 9001-9011).
In drafting the Convention's provisions, the Conference attempted to address a particular type of "kidnapping" scenario: one in which a person, usually a parent, removes a child to, or retains a child in, a country that is not the child's habitual residence in order "to obtain a right of custody from the authorities of the country to which the child has been taken." Elisa Perez-Vera, Hague Conference on Private International Law 428-29, ¶ 13 (1982) (hereinafter, "Perez-Vera Report"). The Convention seeks to eliminate the motivation for such actions by requiring the court of the "requested State, " or the country to which the child has been removed, to return a ...