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Thonet-Bips v. Bips

United States District Court, E.D. Virginia, Alexandria Division

August 29, 2016

CAROLINE THONET-BIPS, Petitioner,
v.
SEAN MICHAEL BIPS, Respondent.

          MEMORANDUM OPINION AND ORDER

          Anthony J. Trenga United States District Judge

         Petitioner/mother Caroline Thonet-Bips seeks the return of her four-year old child, "N., " under the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or "Convention")[1] and its implementing legislation, the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001 et seq. (2006) ("ICARA").[2] In her Verified Complaint and Petition, filed on August 19, 2016, petitioner claims that based on false allegations that petitioner's domestic partner ("E.H."), with whom petitioner resides in Germany, abused N., the child's father, respondent Sean Michael Bips, is wrongfully retaining N. in the United States following the child's travel from Germany to the United States for agreed upon visitation. See Plaintiffs Verified Complaint and Petition Under the Hague Convention for Return of a Child Under 16 Years Old [Doc. No. 1 ] (the "Petition"), ¶ 1. After a hearing on petitioner's emergency motion for injunctive relief [Doc. No. 2], the Court issued an ex parte Temporary Restraining Order on August 19, 2016 prohibiting respondent from removing N. from the Commonwealth of Virginia and ordering respondent to appear before the Court with N. on August 25, 2016. See [Doc. No. 7]. On August 25, 2016, respondent appeared with N., as ordered. Respondent was represented by counsel. Petitioner also appeared, having traveled from Germany for these proceedings.

         After assessing the availability of information and evidence concerning the merits of the Petition and any affirmative defenses, and the parties' ability to present that evidence, the Court scheduled for August 26, 2016 an evidentiary hearing to determine whether further injunctive relief was appropriate. The Court effectively consolidated this evidentiary hearing with a final bench trial on the merits, subject to further consideration at that hearing as to whether the parties should be afforded additional time to obtain and present evidence not then reasonably available.

         The evidentiary hearing took place as scheduled, at which time petitioner presented her own testimony and that of another witness, together with exhibits, and respondent presented his own testimony and that of another witness, together with exhibits. Following the presentation of the evidence, the Court asked the parties for a proffer concerning what, if any, additional information not yet available they would present were the matter continued. In response, petitioner represented that there was no additional evidence that she would present. Respondent also represented there was no additional evidence that he would present, with the exception of the testimony of a child psychologist. In that regard, respondent requested that the case be continued to afford him the opportunity to have N. evaluated by a yet to be selected forensic psychologist with respect to any abuse the child may have experienced at the hands of E.H.

         Based on those proffers, the Court took under advisement the following issues: first, whether the evidence presented established by a preponderance of the evidence petitioner's prima facie case for return of the child to her in Germany under the provisions of the Hague Convention, and if so, whether respondent established by clear and convincing evidence that "there is a grave risk that [N.'s]... return [to Germany] would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b). Second, if respondent's evidence did not establish his defense under Article 13(b) of the Hague Convention, whether the evidentiary hearing should be left open to allow the respondent to develop and present testimony from a child psychologist.

         For the following reasons, the Court herein concludes that under the Hague Convention: (1) petitioner has established that respondent has wrongfully retained N. and that she is entitled to have N. returned to her in Germany; (2) respondent has not established any defense to N's return to petitioner under Article 13(b) of the Convention; and (3) there is insufficient reason to delay a final ruling on the merits of the Petition until a psychological evaluation of N. can be obtained. In support of these rulings, and pursuant to Federal Rule of Civil Procedure 52, the Court makes the following findings of fact and conclusions of law based on the evidence presented at the August 26, 2016 evidentiary hearing.[3]

         FINDINGS OF FACT

         1. N. is a minor child born on March 2, 2012 and a citizen of Germany and the United States. Petitioner/mother is a citizen of Germany and currently resides in Wiesbaden, Germany. Respondent/father is a citizen of the United States and currently resides in Woodbridge, Virginia, United States.

         2. Petitioner and respondent were married and lived together in Germany from July 12, 2010 until January 2015.

         3. In January 2015, petitioner filed for divorce in Wiesbaden, Germany. Those divorce proceedings are pending. In September 2015, during the pendency of the divorce proceedings, E.H. began residing with petitioner at petitioner's residence. Since the parties' separation, there has been a strained relationship between respondent and E.H., whom respondent has referred to in conversations with N. as "a guy that does bad things."

         4. While respondent was living in Germany, the parties evenly divided the time that N. spent with each of them. E.H.'s ten-year old child would, and continues to, also periodically stay with petitioner and E.H. at petitioner's residence. N. has attended kindergarten in Wiesbaden since 2012.

         5. In March 2016, respondent relocated from Wiesbaden, Germany, to Prince William County, Virginia. By Agreement dated March 22, 2016, the parties agreed that respondent would have specified visitation rights with N. during certain holiday seasons and for two months each summer, beginning with the period July 1, 2016 through August 31, 2016. It also provided that "[i]t is agreed that it is the mother who will be entitled to decide on the place of residence of the son." Petitioner ("Pet.")'s. Ex. 3.

         6. In October 2015, while respondent was still residing in Germany, N. made statements to respondent that caused him to have concerns that the child was experiencing some form of abuse at the hands of E.H. On October 21, 2015, respondent called the Agency for Social Work in the City of Wiesbaden to express his concern that, according to statements made to respondent by N., "his son [] had been hit on the back and stomach by the partner of the child's mother." Pet. Ex. 1. Following that conversation, the German social worker telephoned petitioner; and the next day, October 22, 2015, the German social worker conducted a house visit. Pet. Ex. 5.

         7. In her report following the October 22, 2015 house visit, the social worker stated that "[N.]'s mother interacts with him in a loving and caring way" and that "[N.] appears to be coping well with the change between his father and mother." Id.

         8. On October 26, 2015, the social worker conducted a second house visit and reported the following:

[N.] was happy when [E.H.] was there. He sees him as a playmate. [N.] loves it when [E.H.] throws him in the air and plays 'planes' with him. Whilst [N.] was playing, it often seemed as if he was hurt in some way. [N.] would say, for example, that he had hurt himself because of the table or the chair. When his mother or [E.H.] were nearby, [N.] would say that [E.H.] is to blame, or [E.H.], you hurt me, " even though [E.H.] or the child's mother could not have done that. [Petitioner] said that she imagined that [N.] had said he had hurt himself whilst playing with [E.H.], the [respondent] had heard that and assumed that [E.H.] had hit him. [Petitioner] said that she could imagine that [respondent] had asked [N.] if [E.H.] had hit him, and that [N.] had confirmed that he had.

Id. The social worker concluded that "[t]here is no indication that [N.] is in danger at [petitioner]'s house." Id. That German social services agency has again recently confirmed that the October 2015 investigation "did not produce any indications of any danger at the child's mother [sic]. The explanations and statements of all the parties were plausible and credible." Pet. Ex. 1 (letter from Agency for Social Work of the City of Wiesbaden dated August 22, 2016). The August 22, 2016 letter further states that upon termination of the October 2015 social services investigation, "[respondent] said that his mind had been put at rest and that he did not require any further discussion." Id.

         9. As established at the evidentiary hearing, neither petitioner nor respondent has observed any physical signs on N.'s person associated with abuse.

         10. On June 29, 2016, N., with petitioner's consent, traveled from Wiesbaden, Germany to London, England where he was met by respondent and respondent's father, and both respondent and N. then traveled to the United States on July 3, 2016. There, respondent and N. were met by respondent's domestic partner S.C. After spending several days in Pennsylvania visiting respondent's relatives, respondent, N., and S.C. all traveled on July 7, 2016 to Prince William County Virginia, where respondent resides with S.C.

         11. On July 7, 2016, N. and S.C. were watching the television program Power Rangers Megaforce together. N. asked S.C. why Power Rangers "have to have so much power" and S.C. explained that they have to have power to fight "bad people" to protect the world; once S.C. mentioned "bad people, " N. responded "like E.H." S.C. testified that while she was concerned by these statement, she did not report them to respondent.

         12. The next day, while playing Power Rangers with S.C. on the floor of N.'s room, N. said to S.C that he needed to have power like the Power Rangers so he can fight "bad guys" like E.H. S.C. asked N. why he kept mentioning E.H., and N. said because he is a "bad guy" and he "hit me." At that point, SC testified that she had a "huge concern" but again did not report the comments to respondent. Then, on July 9, 2016, while on an outing for ice scream, N. told both S.C. and respondent that E.H. "hit me." At that point, according to S.C. and respondent, N. "just started spitting it all out... spilled all the beans and explained everything in detail, " including that E.H. "pulled his eyelids, called him dumb, slapped him in the face, " and "squeezed" his "pee pee so hard and would not stop." N. also made comments suggesting that E.H. abused E.H.'s own daughter as well and said that on one occasion in petitioner's home (in Germany), E.H. became angry and began to shout loudly and threw a lamp, frightening N. so much that N. ran into his room.[4]

         13. On the evening of July 9 and the morning of July 10, 2016, respondent and petitioner engaged in a series of contentious text messages. See Respondent ("Resp.")'s Ex. 2. Respondent told petitioner "[N.] has been telling me that [E.H.] has been hitting him and that he calls me names and that he is mean to him. I will be reporting this to the U.S. authorities. He told me that he is scared to be around [E.H.]." Petitioner responded by calling respondent's allegations "absolute [s ...


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