International Issue Jurisdiction issue: USA v. Germany

[Martin]

My wife started a custody motion in Germany in Marz 2003, in July requested to the German court to move to Switzerland because she got a job there ( I refused to sign the authorization to move my son outside of Germany because she didn't want to inform where she will be living and not provide information about our son). Anyway, I started divorce proceedings in the USA in Ocotber 2003 and I requested in my petition to the US court to take jurisdiction because the custody issue was not resolved in Germany court.
After my wife moved to Switzerland happened what I was telling the Judge, that she won't inform me about our son address, child care, medical records, etc. By the end of Setember I requested to the German court to cancel the "temporary authorization order"
granting to my wife to go to Switzerland with our son. The German judge made a ruling about my petition,after I filed for Divorce in the USA, saying that she can't cancel the temporary authorization because she didn't have jurisdiction anymore, and told me that the file will be transfered to Berlin.
I was speechless, does anyone know if there is any judge responsability according to the German Law for what she did?
I have no communication with my son for couple of months, just because the judge took a wrong decision.
Now that my case is in Berlin, what will be the next step according to German procedure family law?

 

[Michael Wechsler]

Martin -- we don't know where you were married, your child born and where you both lived. These are very complicated questions and likely beyond the scope of my knowledge and may be best answered by someone well versed with legal procedure in Eastern Europe, specifically an attorney well versed in law in Germany.

My guess is that this case is little different than would be expeceted here. Just because you filed for divorce in the US does not mean it will affect the custody hearing in Berlin. While you might be able to get a divorce granted here it doesn't mean that a court in Germany will honor your request to transfer everything to the US, especially if you lived with the child or the child has lived with the mother in Europe and still live there. But again, these are assumptions.

Let's say the case will be heard in Germany. If a case has already been transferred for a hearing in Berlin then the judge who transferred the case no longer has power over the case.

There are many complicated issues here and with regard to jurisdiction, it will likely be very fact specific and jurisdiction will probably be found in the place that is of the greatest import to all involved.

Originally posted by Martin

My wife started a custody motion in Germany in Marz 2003, in July requested to the German court to move to Switzerland because she got a job there ( I refused to sign the authorization to move my son outside of Germany because she didn't want to inform where she will be living and not provide information about our son). Anyway, I started divorce proceedings in the USA in Ocotber 2003 and I requested in my petition to the US court to take jurisdiction because the custody issue was not resolved in Germany court.
After my wife moved to Switzerland happened what I was telling the Judge, that she won't inform me about our son address, child care, medical records, etc. By the end of Setember I requested to the German court to cancel the "temporary authorization order"
granting to my wife to go to Switzerland with our son. The German judge made a ruling about my petition,after I filed for Divorce in the USA, saying that she can't cancel the temporary authorization because she didn't have jurisdiction anymore, and told me that the file will be transfered to Berlin.
I was speechless, does anyone know if there is any judge responsability according to the German Law for what she did?
I have no communication with my son for couple of months, just because the judge took a wrong decision.
Now that my case is in Berlin, what will be the next step according to German procedure family law?

 

[Martin]

Thanks for your response

My hearing for Divorce, here in the US, is coming in March. Just few day ago I received mail from Germany regarding divorce procedings in Germany. It is clear that the first thing to resolve is who has jurisdiction over the parties regarding the Divorce.
I will post a new message if I have more questions.
Thanks again for your response.

 

[NYClex]

If I get this correctly, it was the German citizen wife who first filed for divorce and she did so in Germany?

According to German law then the German court has jurisdiction and it will be handled according to German law (Art. 17 Einführungsgesetz zum BGB, § 606a Zivilprozeßordnung (Rules of Civil procedure)). Jurisdiction is determined by jurisdiction at the time the action was commenced. Since one of the partners is a German citizen the German court has jurisdiction.

Jurisdiction about the custody question is even more complicated. Acording to German law jurisdiction is with the courts in the country where the child resides. In this case it would be the Swiss courts and Swiss law would govern. But there is an exception in German law that would make it possible for the German court to assume jurisdiction in that matter, too, if the child is a German citizen.

There is an international treaty which all three countries affected here have signed: The Hague CONVENTION ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN

According to that body of law jurisdiction lies with the courts of the country of "habitual residence". In that case it would be Switzerland. If the child was taken there by breach of a custody order, jurisdiction would lie with the courts of the country the child was immediately before being taken there, in this case Germany.


Basically, that is it for now. It is pretty obvious that jurisdiction now lies in Europe. The best thing for you to do is to get a good lawyer over there who is an expert in what they call there "international family law."