United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
Anthony J. Trenga United States District Judge
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") and its implementing legislation, the
International Child Abduction Remedies Act, 22 U.S.C.
§§ 9001 et seq. (2006)
("ICARA"). 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.
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.
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.
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.
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
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.
Petitioner and respondent were married and lived together in
Germany from July 12, 2010 until January 2015.
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
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.
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.
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.
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.
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."
established at the evidentiary hearing, neither petitioner
nor respondent has observed any physical signs on N.'s
person associated with abuse.
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
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.
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.
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 ...