Petitioners seek relief under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Convention) and the implementing statute, the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 11601 to 11610. Petitioners are German citizens residing in Neustadt, Germany. They invoke the Convention seeking to have this court direct the return to them of Thomas Joachim Manuel. Thomas is not quite six, having been born June 24, 1988.*fn1
Unlike many proceedings under the Convention, this case is not between contending parents. Thomas' mother, Joy Manuel, has not been served and has not participated in this proceeding. All other parties have stipulated that despite bona fide efforts, they have been unable to locate her, although they believe she is now in Germany.*fn2 There is no indication that Thomas' father is a factor in his life, nor is the father a party to this proceeding.
The respondents (in addition to Joy Manuel) are Caroline Gross, who is Joy Manuel's natural mother (and thus is obviously also Thomas' grandmother), together with Gross' husband, Joachim. Thomas has been living with the Grosses at their home in Union, New Jersey, since Easter Sunday, April 3, 1994. Petitioner Ute Loos is not a blood relative of Thomas. Her connection with Thomas is through her brother, Bernd Karkosch. Karkosch, through a liaison with Thomas's mother, fathered the second child of Joy Manuel, a daughter named Kjhara, born June 18, 1991. Petitioner Klaus Loos is the husband of Ute Loos. Ute Loos is a housewife and Klaus. Loos is a taxi driver. Caroline Gross is a bookkeeper doing accounting work for a company and Joachim Gross is a self-employed dealer in antiques and collectibles.
Thomas' odyssey has taken him through five years of life in Germany and has brought him from Germany to the United States. Petitioners want the odyssey to continue. They assert that under the Convention he should be returned to them in Germany and that they can provide good care and a stable home for him there. The Grosses want to keep Thomas living with them in New Jersey. A few words about Thomas' background are in order.
In mid-1988, Thomas' mother, Joy Manuel moved in with Karkosch as part of the relationship from which Kjhara Manuel was born. They resided in the same apartment building as the Looses but in a different apartment unit. Joy Manuel moved out of that house, apparently taking Thomas with her for at least a brief period, after her relationship with Karkosch ended in 1992. Petitioners claim that in February 1992 Thomas began staying in their home in Neustadt during the daytime, and that he lived with them beginning in October 1992. In late October 1993, when Thomas was residing with petitioners, she took the children for what she said would be a visit, but instead she left Germany for New Jersey, taking Thomas and Kjhara with her.
Manuel and the children lived in New Jersey with the Grosses off and on from November 1993 until January 1994. She had Thomas admitted to the children's psychiatric ward of Elizabeth General Hospital for twenty-eight days, beginning just after Christmas 1993. After that, she left with the two young children to stay at the home of Carol McMillan, her grandmother (who is also Caroline Gross' mother and Thomas' great-grandmother) in Milford, Pennsylvania.
On Easter Sunday 1994, the Grosses drove to Pennsylvania because they had just learned that Manuel had recently departed with Kjhara for an unannounced destination, leaving Thomas behind in Pennsylvania. Since Caroline Gross' mother was unable to care for Thomas, the Grosses bought him back to their home in Union, New Jersey, where he has since resided. The Grosses are in their mid-forties, and they speak fluent German, as does Thomas. In fact, Joachim Gross is a native of Germany. He and his wife desire to provide a stable home and loving environment for Thomas in New Jersey. They have enrolled him in the pre-kindergarten program of Hamilton School in Union.
As will be seen, in proceedings under the Convention, the court's role is not to make traditional child custody decisions. It is to determine in what jurisdiction the child should be physically located, so that the proper jurisdiction can make custody decisions.
The Convention was prepared under the auspices of the Hague Conference on Private International Law, which for more than one hundred years has sought to promote the harmonization of private international law through activities that include preparing international treaties and monitoring their operation. The Convention was adopted by a number of nations on October 6, 1980, although the United States and the Federal Republic of Germany did not accede to it until July 1, 1988 and December 1, 1990, respectively.*fn3
The Convention was prepared against a backdrop of increasing concern over international child abduction. Its operation is limited to children ...