The Hague Domestic Violence Project

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

Docket Number

93-C-0643-S

Published

No

Decision Date

1993-08-13

Name of Court

United States District Court for the District of Utah, Central Division

Opinion by

Sam, David

Counsel for Petitioner

Chiara, Keith H; Smith, Duane R

Counsel for Respondent

Dollowitz, David S

Counsel for Court

Requesting State

Germany

Requested State

United States of America

Procedural History

Petitioner/father filed suit seeking return of child to Germany. An evidentiary hearing was held on August 2, 1993.

Summary of Facts

Petitioner/father and Respondent/mother resided in the United States. At the request of Petitioner/father, the family traveled to Germany to visit petitioner’s family. After three months, Respondent/mother wanted to return to the United States, but Petitioner father refused and prevented their return. He did so by using verbal, emotional, and physical abuse. Petitioner/father eventually told Respondent/mother that if she wanted to return to the United States she could do so, but he would no longer be her husband. Respondent/mother returned to the United States where she filed for divorce and custody of the child. After six months of not attempting contact with either Respondent/mother or child, Petitioner/father attacked Respondent/mothers sister-in-law while trying to see Respondent/mother and the child. Respondent/mothers clinical psychologist testified that Respondent/mother was suffering from post traumatic stress disorder, supporting Respondent/mothers statements that she was verbally, emotionally, and physically abused by Petitioner/father. The court found Respondent/mother to be a more credible witness and also found the child’s habitual residence before removal to be the United States.

Defenses Raised

Hague Article 3(a): The child’s habitual residence is not the requesting state.

Hague Article 13(b): Grave risk of harm to the child if returned to the petitioning country.

Hague Article 20: Return of child would violate principles of human rights and fundamental freedoms.

Statutes Considered (ICARA)

11601(a), 11601(b), 11603(a), 11603(d), 11603(e)

Articles Considered (Hague Convention)

3, 13(b), 20

Cases Considered

Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); In re Bates, No. CA 122-89 High Court of Justice, Fam. Div’1 Ct. Royal Court of Justice, United Kingdom 1989; Levesque v. Levesque, 816 F.Supp. 662 (D. Kan. 1993); Meredith v. Meredith, 759 F.Supp. 1432 (D. Ariz. 1991); R v. Barnet London Borough Council ex parte Shah, 309 2 A.C 1983

Judicial Outcome or Order

Return Order Denied

Posted

2006-09-21

• The Hague DV team presented initial findings in Seattle.
• Pointed questions on the Hague and DV at the U.S. Supreme Court
• DV-LEAP Brief in the Supreme Court case
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• Law review article on Hague solutions by Prof. M.H. Weiner

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