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4th Cir. Rules Against Army Dad in Int'l Child Custody Dispute

By Mark Wilson, Esq. on November 06, 2014 | Last updated on March 21, 2019

What's an international custody dispute doing at the Fourth Circuit? Quite a lot. Mark and Daniela Smedley got married in Germany in 2000. Mark was a member of the U.S. Army. They had two kids, in 2000 and 2005, and continued to live in Germany until Mark got transferred to North Carolina. Daniela and the kids came along.

"At this point, the parties' stories diverge," said the court, putting it mildly. If you believe Daniela, she was already unhappy when they lived in Germany. She got homesick for Germany and told Mark she was going back to live there permanently, and she was taking the kids. He said okey-dokey-sure. They agreed she would take a month to reconsider, so she bought round-trip tickets; if she decided to stay, Mark would try to move there, too.

A Big International Mess

However, if you believe Mark, Daniela and the kids went to Germany, but only for a one-month vacation. Two weeks after she got there, he was surprised when she told him over the phone that she intended to stay permanently.

Mark got a custody order in state court. Then he filed a Hague petition in Germany to get the kids back. The German court denied the petition. Mark and Daniela got divorced in Germany but let the kids visit Mark in North Carolina. Then -- surprise! -- Mark decided to keep the kids in North Carolina permanently. Daniela filed her own Hague petition in federal district court in the United States. The court accorded comity to the German court opinion, then awarded Daniela custody and allowed the kids to return to Germany.

What's the Issue Here?

The issue on appeal is whether the district court improperly afforded comity to the German decision. What is the standard of review for determining comity? Fortunately for all of us, that doesn't matter: "[U]nder either standard," the Fourth Circuit said, the district court was right to extend comity. The standard is whether the foreign court "clearly misinterpreted the Hague Convention" or "failed to meet a minimum standard of reasonableness." Neither of those applied, so Daniela and the Smedley children will remain in Germany.

Not that Mark didn't try. He claimed the German court didn't make a habitual residence determination first, and naturally, they would have said North Carolina was the kids' habitual residence. The Fourth Circuit disagreed, saying that it's not a foregone conclusion the German court would have picked North Carolina.

The Fourth Circuit also didn't agree that the German court unreasonably relied on contradictory evidence; basically, the German court believed Daniela's story over Mark's because Daniela had "detailed and corroborated" testimony that she told Mark she was moving permanently, whereas Mark lacked any support for the proposition that he allowed Daniela to go to Germany for a month-long vacation.

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