Forcelli v. Smith

Background

Vanessa Forcelli brought a case against Timothy Charles Smith under the Hague Convention and the International Child Abduction Remedies Act, a federal law implementing the Convention in the United States. She alleged that Smith wrongfully retained their minor child, M.S.S., in the United States and sought an order requiring M.S.S.’s prompt return to Germany.

Forcelli and Smith had lived in Germany with their children. M.S.S. was born in Germany and lived there her entire life. In August 2019, Forcelli and the three children traveled to Minnesota for a planned three-week visit. The children did not return to Germany as scheduled. The parents jointly enrolled them in a Minnesota school, and Forcelli returned to Germany alone in September 2019. The court considered conflicting evidence about whether the parents had agreed to move permanently to the United States. Forcelli later returned to Minnesota intending to bring the children back to Germany, but M.S.S. refused to leave with her. The younger two children returned to Germany with Forcelli.

Habitual Residence

The court explained that the Hague Convention generally requires the prompt return of a child wrongfully removed to or retained in a country other than the child’s habitual residence. The Convention addresses which country’s courts should decide custody; it does not authorize the court handling the return case to decide which parent is better or what custody arrangement is in the child’s best interests.

The court found that Germany was M.S.S.’s habitual residence. It relied on M.S.S.’s birth and lifelong residence in Germany, the parties’ original understanding that the Minnesota trip would last three weeks, Forcelli’s failure to permanently deregister the children from the German municipality, and her communications indicating that the children were staying in the United States only temporarily. The court concluded that Forcelli had not formed an intention to abandon Germany as M.S.S.’s prior habitual residence. It therefore found that Smith wrongfully retained M.S.S. in the United States.

Affirmative Defenses

Smith raised three defenses: that Forcelli had consented to M.S.S.’s permanent relocation, that returning M.S.S. would expose her to a grave risk of physical or psychological harm, and that M.S.S.’s age and maturity made her objection to returning relevant.

Consent. The court rejected the consent defense. Although Forcelli helped enroll the children in Minnesota school and did not immediately return with them, the court found that these actions did not prove that she agreed to a permanent relocation. The court also relied on her failure to deregister the children from the German municipality and her efforts to retrieve them after learning that Smith intended to keep them in the United States.

Grave risk of harm. The court rejected Smith’s claim that M.S.S. faced a grave risk of harm in Germany. Smith presented evidence concerning alleged abuse, including M.S.S.’s reports that Forcelli had slapped her and dug her fingernails into M.S.S.’s skin, as well as evidence about Forcelli’s reaction to M.S.S.’s haircut and sexual orientation. The court stated that Smith had not shown by clear and convincing evidence that M.S.S. faced serious abuse or neglect. It also explained that this defense could not be used to resolve the parents’ broader custody dispute or to decide which parent was better.

Child’s age and maturity. The court found M.S.S. bright, articulate, and mature for her age and considered her clear preference to remain in Minnesota. It nevertheless declined to give that preference controlling weight. The court noted concerns about whether her views had been influenced by others, the limited communication with Forcelli, and the fact that M.S.S. had previously expressed similarly strong negative views about Smith when he lived apart from her. The court also explained that a preference to live with one parent is not the same as a particularized objection to returning to the former country of residence.

Disposition

The court ordered judgment for Forcelli and against Smith. It ordered Smith to coordinate with Forcelli to facilitate M.S.S.’s return to Germany within twenty-one days of the order. It further ordered that, upon application to the court, reasonable attorney’s fees and costs would be awarded to Forcelli’s counsel. Chief Judge John R. Tunheim stated that any custody decision must be made by a German court, not by the federal court in this return proceeding.