Rehder v. Rehder

Filing 14

ORDER re 7 MOTION Temporary Restraining Order; Hearing set for 11/7/2014 at 09:00 AM by Judge Richard A Jones. (RS)

HONORABLE RICHARD A. JONES

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9

Frank Rehder,

CASE NO. C14-cv-1242 RAJ

10
Plaintiff,

11
12

ORDER

v.
Tanya Rehder,

13
Defendant.

14
15

I. INTRODUCTION

16

This matter comes before the court on petitioner Frank Rehder’s motion for

17 temporary restraining order, which was filed on October 13, 2014. Dkt. #7.
18 Respondent’s opposition to the motion was due on October 16, 2014. See Local Civ. R.
19 65(b)(5) (“Unless the court orders otherwise, the adverse party must file its response, if
20 any, within forty-eight hours after the motion is filed.”); Local Civ. R. 7(b)(2)(“[I]f a
21 party fails to file papers in opposition to a motion, such failure may be considered by the
22 court as an admission that the motion has merit.”).
23

On October 17, 2014, the court held an initial hearing on the underlying Petition

24 for the Return of Child (Dkt. #1) brought pursuant to the International Child Abduction
25 Remedies Act (“ICARA”), 22 U.S.C. §§ 9001-9011, which implements the 1980 Hague
26 Convention on the Civil Aspects of International Child Abduction (the “Convention”).
27

ORDER- 1

1 Petitioner’s counsel, Respondent’s counsel and Respondent were present at this hearing.
2 Petitioner participated by phone.
3

Despite Respondent’s failure to respond to the motion for temporary restraining

4 order within the time prescribed by the Local Rules, the court nevertheless allowed
5 Respondent’s counsel to present an oral proffer in response to the motion. For the
6 reasons stated below, the court GRANTS the motion in part.
7
8

II. BACKGROUND
Petitioner is the father of ARDR, a four-year-old boy. Dkt. # 5, ¶ 7. Respondent,

9 Tanya Rehder, is ARDR’s mother. Id., ¶ 8. Mother and father were married in 2008 in
10 New York City. Id., ¶ 12. ARDR was born in Germany in 2010. Id., ¶ 11. Petitioner
11 resides in Germany and contends that Respondent has wrongfully removed ARDR from
12 his state of habitual residence and is currently residing with him in this District.
13 Petitioner seeks the return of his son to Germany. Dkt. # 1.
14

Respondent claims that the United States is ARDR’s habitual residence and that

15 she and her son merely took a “temporary short trip” to Germany from November 15,
16 2013 to December 5, 2013. Dkt. # 5, ¶ 15.
17

There is a Petition for Declaration Concerning Validity of Marriage pending in

18 The Superior Court of Washington, County of Whatcom, Case No. 14-3-00373-1. 1 The
19 Petition was filed by Respondent on May 16, 2014 and seeks, among other things, a
20 custody determination regarding the child, ARDR. Superior Ct., Dkt. # 3. The Superior
21 Court recently entered a restraining order prohibiting a change in the child’s residence.
22 Superior Court Dkt. # 4, p. 2.
23
24
25
26

1

The court takes judicial notice of the existence of the state proceedings, available at:
27 http://documents.whatcomcounty.us/weblink8/CustomSearch.aspx?SearchName=SCCaseSearch.

ORDER- 2

III. ANALYSIS

1

2 A. Removal of the Child from Washington State.
3

Petitioner requests an order prohibiting removal of the child from the State of

4 Washington. The court has already granted a more restrictive order, prior to the filing of
5 Petitioner’s motion. See Dkt. # 6. The order named the respondent only, but as set forth
6 below, both parties are prohibited from removing the child from the Western District of
7 Washington pending resolution of the petition. Should either party violate this order, the
8 court will consider a proper motion for contempt, including a proper request that the
9 offending party be arrested by the United States Marshal. See 22 U.S.C. § 9004(a) (the
10 court “may take or cause to be taken measures under Federal or State law, as appropriate,
11 to protect the well-being of the child involved or to prevent the child's further removal or
12 concealment before the final disposition of the petition.”).
13
14
15
16
17
18
19
20
21
22
23
24
25
26

B. State Court Proceedings.
Petitioner requests that this court stay the proceedings relating to Respondent’s
concurrent Petition for Declaration Concerning Validity of Marriage pending in state
court and Petitioner further requests that this court vacate the restraining order entered in
that action because it prohibits a change in the child’s “residence.” Petitioner argues that
such an order is necessary to avoid a conflict among the state and federal courts.
The court is indeed authorized to enter such an order. See, Holder v. Holder, 205
F.3d 854, 865 (9th Cir. 2002) (“Congress has expressly granted the federal courts
jurisdiction to vindicate rights arising under the Convention. Thus, federal courts must
have the power to vacate state custody determinations and other state court orders that
contravene the treaty) (quoting Mozes v. Mozes, 239 F.3d 1067, 1085 n. 55 (9th Cir.
2001); see also Silverman v. Silverman, 338 F.3d 886, 894 (8th Cir. 2003). However, the
court declines to do so at this time. The state court’s restraining order does not create a
direct conflict with any of this court’s orders. Both orders prohibit the removal of the

27

ORDER- 3

1 child from Washington and, in fact, this court’s order is more restrictive (prohibiting
2 removal of the child from the Western District). Additionally, should this court decide to
3 return the child to Germany, it would not be bound by any state court custody
4 determination. See Convention, art. 17 (“The sole fact that a decision relating to custody
5 has been given in or is entitled to recognition in the requested State shall not be ground
6 for refusing to return a child under this convention…”).
7 C. Temporary Visitation
8

Petitioner requests an order allowing him to visit with his child for one week

9 within the Western District of Washington.
10

The Hague Convention enacting legislation provides a statutory basis for such

11 access rights. See 22 U.S.C. § 9003(b) (acknowledging that a person may initiate
12 proceedings under the Convention “for organizing or securing the effective exercise of
13 rights of access to a child…”); see also Ozaltin v. Ozaltin, 708 F.3d 355, 372 (2d Cir.
14 2013) (“The statutory basis for a federal right of action to enforce access rights under the
15 Hague Convention could hardly be clearer.”). Petitioner is required to establish that he
16 has such rights by a preponderance of the evidence. 22 U.S.C. § 9003(e)(1)(B); Ozaltin,
17 708 F.3d at 372. The evidence submitted by the parties need not be authenticated. See
18 22 U.S.C. § 9005 (“no authentication of such application, petition, document, or
19 information shall be required in order for the application, petition, document, or
20 information to be admissible in court.”).
21

Petitioner has submitted his own declaration claiming that he has shared custody

22 of ARDR. Dkt. # 7-6. Petitioner has also provided a birth certificate for ARDR, which
23 lists him as ARDR’s father. Dkt. # 7-6. Additionally, he presented the declaration of
24 Frau Dr. Kerstin Niethammer-Jurgens, an attorney admitted in Germany, who explained
25 that under German law married couples enjoy joint custody of their children. Dkt. # 7-4.
26 Finally, he presented declarations from his mother, a family friend, and the mother of his
27

ORDER- 4

1 first child, all of which indicated that Petitioner actively exercised his custody rights with
2 respect to ARDR. Dkt. ## 7-2, 7-3, 7-5.
Thus far Respondent has failed to present any evidence which shows that there is

3

4 any limitation on Petitioner’s custody rights. At the hearing, Respondent’s counsel did
5 not indicate that there was any allegation of abuse or potential harm to the child.
6 Although Respondent did not oppose daytime visitation, she did claim that the child did
7 not often spend time alone with his father overnight. Petitioner disputed this contention
8 and stated that Respondent traveled to the United Kingdom four times per year and
9 during those periods the child was left alone in his care. The parties then engaged in
10 discussions with the court regarding the logistics of a potential visitation schedule and
11 agreed to certain safeguards should the court enter such an order. Those safeguards
12 included, among other things, accommodation for the child’s school and bedtime
13 schedule, drop-off of the child by the maternal grandparents at a neutral location,
14 surrender of the child’s passports, and an exchange of contact information among the
15 parties.
Having reviewed the evidence and heard from the parties, the court finds that

16

17 Petitioner has established by a preponderance of the evidence that he shares custody of
18 ARDR. Accordingly, the court GRANTS the Petitioner’s request for visitation and
19 orders Respondent to allow Petitioner access to ARDR beginning on October 30, 2014
20 and ending on November 6, 2014. As discussed at the hearing, this visitation will involve
21 numerous safeguards. Those safeguards are set forth in detail at the conclusion of this
22 order.
23 D. Briefing Schedule, Hearing on Petition, and Presentation of Evidence.
24

Petitioner requests an expedited hearing. The court GRANTS this request. As

25 agreed by the parties and the court, a hearing is set for November 7, 2014 at 9:00 a.m. in
26 the courtroom of the undersigned judge. Should either party wish to submit additional
27

ORDER- 5

1 briefing or evidence regarding the merits of the petition, such documents must be filed
2 with the court no later than November 3, 2014.
3

Finally, Petitioner requests an order limiting third-party witness testimony to

4 written declarations. Respondent does not oppose this request. Accordingly, Petitioner
5 and Respondent are the only witnesses that will be permitted to testify in-person at the
6 hearing.
7
8

IV. CONCLUSION
For the reasons stated above, the court enters the following order:

9

• The request for an order prohibiting removal of the child from the State of

10

Washington is denied as moot. As stated in the court’s prior order and

11

herein, neither party shall remove ARDR from the Western District of

12

Washington pending resolution of the petition.

13

• The request to stay the state court action and vacate its orders is denied.

14

• The request for visitation is granted. Respondent shall allow Petitioner

15

access to ARDR beginning on October 30, 2014 and ending on November,

16

6, 2014. The visitation is subject to the following conditions:

17

 On Monday, October 20, 2014, Respondent shall file a notice

18

with this court, identifying a neutral public location (e.g., the

19

coffee shop suggested by Respondent at the hearing) in which

20

the child can be dropped off to his father. Respondent shall

21

ensure that this location remains open to the public until at

22

least 7:00 p.m.

23

 The child’s maternal grandparents shall deliver the child to

24

Petitioner at 3:00 p.m. on October 30, 2014 at the neutral

25

location. Petitioner shall return the child to the neutral

26

location at 7:00 p.m. that same day, at which time his

27

ORDER- 6

1

grandparents will pick him up. The parties will follow this

2

schedule daily throughout the visitation period, except for the

3

weekend of October 31, 2014 through November 2, 2014.

4

 On October 31, 2014, the grandparents will drop off the child

5

at the neutral location at 3:00 p.m. and Petitioner will be

6

permitted to spend the weekend with the child. Petitioner will

7

return the child to the neutral location on November 2, 2014

8

at 7:00 p.m.
 On or before October 27, 2014, Petitioner must advise

9
10

Respondent of the location in which he and the child will

11

spend the weekend. Petitioner and the maternal grandparents

12

must also exchange mobile phone or other telephone numbers

13

and provide each other with any additional contact

14

information that may be helpful for the visitation period.

15

 The court has entered a separate order requiring Respondent

16

to surrender all of the passports for the child to the intake

17

clerk of this court. Dkt. # 10.

18

• A hearing is set in this matter for November 7, 2014 at 9:00 a.m. The

19

purpose of this hearing is to determine the merits of the petition. Any

20

additional briefing or documentary evidence is due on November 3, 2014.

21

Petitioner and Respondent may testify in-person at the hearing. Any third-

22

party witnesses must submit written declarations.

23

Dated this 17th day of October, 2014.

25

A

26

The Honorable Richard A. Jones
United States District Judge

24

27

ORDER- 7