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Germany: International Child Custody

GERMANY AND INTERNATIONAL CHILD CUSTODY

By Jacqueline L. Salmon


A year after President Bill Clinton and Chancellor Gerhard Schroeder of Germany announced in 2001 new measures to help resolve child-custody disputes between their countries, the kinds of cases that drew the two leaders' attention last year are still tearing families apart.

Germany has halved the amount of time it takes for such cases to move through its court system, and has trained dozens of judges in the international law that governs them. Still, as President George W. Bush meets his European counterparts this week, German judges seem unable or unwilling to enforce their own orders, State Department officials and family members say.

Last fall, for example, Phil Snyder, of Candia, New Hampshire, won his case on appeal and was told he could pick up his three sons from his estranged German-born wife, who had taken them to Germany in April 2000.

Mr. Snyder, a 35-year-old manager for an auto parts store, spent $3,000 on plane tickets and arrived, as ordered, on Dec. 18 in a southwest German town to retrieve his children. But when he got there, he was confronted by his wife, her hostile relatives and a wrenching mission: asking his children to choose between their mother and father. The court, which had ordered that the children be returned to the United States for a custody hearing, had also ruled that they couldn't be forced to go. During two and a half tense hours, Mr. Snyder urged, then begged, his stricken children to come with him. A bailiff who was present told Mr. Snyder that he could not assist him in taking the children. All he could do, the bailiff informed Mr. Snyder, was "open the door." And social services officials warned him that he could not touch the children. "I couldn't even hug them," Mr. Snyder recalled.

The youngest child, 5-year-old Sean, jumped into his father's arms. But the two older boys - 12-year-old Daniel and 10-year-old Michael - refused to go. Mr. Snyder returned to the United States with only Sean.

Under the Hague Convention on International Child Abduction, children who are taken abroad by one parent are supposed to be returned quickly to their country of "habitual residence" for custody hearings. Mr. Snyder appealed the decision that his children couldn't be forced to return, but he was turned down by the German court.

Since then, Mr. Snyder said, he's been told by his lawyer that his Hague case is closed. "There's basically no mechanism in the German government, even under the Hague, to enforce the decision," said Mr. Snyder, who has sent cards and letters to his older boys but doesn't know if they received them. "You can win all you want and it doesn't matter. I can't do anything. So, basically, I lost my two older children."

He has filed for divorce - he was separated from his wife for about a year before she fled to Germany with the children - and he expects to be awarded full custody of all three children in a final divorce hearing in two weeks. But none of that matters, he said. His older boys aren't here. State Department officials say they are troubled by the continuing problems with German courts' reluctance to enforce court orders, but there is little they can do. "We are seeing more orders for return, and we're actually seeing more returns," said Mary Marshall, director of the Office of Children's Issues, which handles U.S. Hague applications for American parents. "But there are still a number of ordered returns where the children are still in Germany. We've been asking the Germans to do whatever is necessary, as the law will allow, to effect return."

Mr. Clinton raised the custody issue with Mr. Schroeder last year after a story in The Washington Post detailed several cases in which children had been taken illegally to Germany from their homes in the United States by one parent and then not allowed contact with the American parent. Despite the Hague Convention, German courts had refused to return the children or enforce visitation orders.

Secretary of State Colin Powell told legislators that he planned to be involved in the issue. "These are terrible tragedies, each and every one of them, and these nations are acting irresponsibly," General Powell said in answer to a question from Representative Steve Chabot, Republican of Ohio.

Senator Jesse Helms, Republican of North Carolina, has complained to German officials on several occasions about the plight of American parents, and raised the issue with the German foreign minister, Joschka Fischer, during Mr. Fischer's visit to Washington in February. "We had a 40-minute meeting, of which Senator Helms devoted maybe 35 minutes to this issue," said a source who was at the meeting.

Legislators have vowed to keep up the pressure and say they are looking to the administration for help.

"The more that the administration can focus on this, the better," said Mr. Chabot. "We just have to irritate these other governments. We have to bring it up at every opportunity."

A senior administration official said he does not know of a forum where the issue of abducted children might come up during Mr. Bush's European trip, but did not rule it out.

Germany has been criticized for dragging out court cases for years, then ruling that the children have become too accustomed to German life and language to leave.

Left-behind parents point out that when a person abducts a child, that parent usually has plenty of time to turn the child against the other parent. In such a case, leaving the decision to the child works against the left-behind parent.

Since the Schroeder-Clinton meeting, the German-American commission has met a half-dozen times to iron out problems in implementing the Hague treaty, German and American officials said. Germany has reduced the number of judges who hear Hague cases from 2,000 to two dozen and has given them special training.

Harold Weisker, the German lawyer who has handled Hague treaty cases in the German courts for the past seven years, said he had noticed an improvement in the past 18 months.

"In the past, we had the problem that we very often had a Hague case in a small township, the family judge had been in charge of the family court for 20 years and never handled a Hague case," he said. "That's over now."

A German Justice Ministry official, Frank Michlik, said in a written response to questions that the process for handling Hague cases has been streamlined. In most cases, Mr. Michlik said, Hague petitions filed by foreign parents are now sent to "the competent German court within seven working days."

Information on Germany : Family Law :
An unofficial translation.  continue

Advice on preventing child abduction in Germany  continue

If a German Court's return order will usually order the abducting parent  continue

Prenuptial agreements and Germany  continue

Section 1632 of the German Civil Code provides that custody over a child  continue

German divorce law for international marriages  continue

Germany has halved the amount of time it takes for international child custody cases  continue

Germany has a uniform court structure under which   continue

The Foreign Office and the German missions abroad  continue

It is our personal experience handling international child abduction cases in Germany (with local counsel) that serious problems still   continue

Open letter concerning Germany's apparent violation of its obligations under the Hague Child Abduction Convention.   continue

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