Opinion
Case No. 8:08-cv-2313-T-27TBM.
December 12, 2008
REPORT AND RECOMMENDATION
THIS MATTER is before the court on referral by the James D. Whittemore for a Report and Recommendation on the Petition for the Return of the Child to Petitioner and Petition for Immediate Issuance of Show Cause Order to Respondent (Doc. S-5). The Respondent has not filed a written opposition. Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention"), which is embodied in the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 11601- 11610, Petitioner seeks an Order directing a prompt return of her minor child, A.R., to his habitual residence in Germany. She also seeks an award of the fees and costs incurred in connection with the Petition. Petitioner submits an Affidavit, an Application Under the Hague Convention on the Civil Aspects of International Child Abduction, and other documentary exhibits in support of her position. An evidentiary hearing on the petition was conducted December 4, 2008.
I.
Petitioner, Penelope F. Sewald ("Petitioner"), is a United States citizen, born in Germany in 1969. Shortly after birth, she moved to the United States and stayed for approximately one year. She then returned to Germany, where she lived until 2003. She has two other children, "M" and "J", unrelated to the instant action, who claim both United States and German citizenship. In about April 2003, Petitioner returned to the United States, chiefly to reacquaint herself with her father. Sometime thereafter, she met Respondent, John Reisinger ("Respondent"), with whom she developed a relationship. She remained in the United States for approximately a year and a half and then returned to Germany. While in Germany, Respondent maintained contact and urged that they get back together. In approximately May 2005, Petitioner returned to the United States with her second son, J. The understanding she had with Respondent was that she would return occasionally to Germany to visit with her oldest son who remained there with his father.Petitioner and Respondent got married in August 2005. Thereafter, they resided in Tampa, Florida. By December 2005, Petitioner was pregnant. Petitioner and J returned to Germany on round-trip tickets, ostensibly for a short stay. Petitioner testified that she decided to remain in Germany and she notified Respondent of that fact by e-mail. The parties' child, "A.R.," was born on May 30, 2006, in Prien, Bavaria, Germany. Respondent was present at the birth. Thereafter, the parties visited fairly regularly with Respondent traveling to Germany or Petitioner and the children traveling to the United States. See Pet'rs Ex. 19. Exhibits reflect that Petitioner rented a place to live in Germany in January 2006 and stayed there until April 20, 2007. See Pet'rs Exs. 4-5. She also sought and received social services in Germany for her children. See Pet'rs Exs. 7-9. According to Petitioner, it was her desire to be separated from Respondent due to problems they were having. Testimony reveals that Respondent provided her financial support in the amount of $500.00 per month until August 2008. He also purchased two vehicles for her use in Germany. On at least one occasion, Respondent accompanied Petitioner and A.R. for a visit with A.R.'s German doctor. See Pet'rs Exs. 10-11. Petitioner's two older sons attended school in Germany during this period. On one of Respondent's visits to Germany, he accompanied Petitioner as they checked out potential pre-schools for A.R. and agreed on one for his future enrollment. At present, A.R. is two and a half years old and speaks German. He has picked up some English since his prolonged recent stay in the United States.
In August 2008, Respondent purchased round-trip tickets from Germany to Tampa for Petitioner and her three sons, as well as a friend of the oldest son. They all stayed at Respondent's house in Tampa. On September 2, 2008, the day before she was scheduled to return to Germany, Petitioner discovered that A.R.'s passport was missing. When she inquired, Respondent indicated that he had the passport and he declined to give it to her. Later the same day, Petitioner was served with divorce papers for proceedings pending in the Hillsborough County Circuit Court. Although Petitioner claims she wanted to leave the house immediately, she actually resided there for several weeks before moving out.
There are also pending divorce proceedings in Germany initiated by Petitioner, apparently on September 9, 2008. See Pet'rs Exs. 16-17. Petitioner testified that she has been awarded custody rights in Germany. Exhibit 17 purports to be a Certificate of Illegality pursuant to paragraph 15 of the Convention dated November 21, 2008. By this Order, a German court determined that Respondent's retention of the child is in violation of the Convention because the A.R.'s habitual home is in Germany.
Additionally, Petitioner testified that she had some work in Germany in 2007, and was due to start a new position in October 2008. She has supported the children through certain government aide programs and, since being delayed in the United States, she has relied on borrowed funds as Respondent stopped providing support in August 2008. She acknowledges that Respondent attempted to maintain almost daily contact with the child while they have been residing in Germany, and even after she was served the divorce papers, they have shared equal custody of their child. Finally, she denies ever harming any of her children.
On cross-examination, Petitioner acknowledged that when she moved to the United States in 2003, her two older sons resided here and attended school while she was working. However, when she returned to Germany in 2004, her intention was to remain in Germany with her children. Thereafter, she and Respondent reconciled over time and she agreed to return to the United States. Petitioner acknowledges that at no time did Respondent ever agree to or intend to move to Germany with her, although they did discuss the possibility of moving to other places within the United States. Respondent owned a home and had a job in Tampa.
Petitioner acknowledged that she has taken medications such as Lexipro and something similar to Xanax for depression and stress although she stopped taking the medicine when she got pregnant. Earlier in life, during another relationship, she had attempted suicide because the relationship was abusive. She admitted during that period to occasionally self-mutilating and, in the fall of 2004, she was discovered by the Respondent cutting herself with a razor blade. She also acknowledged being diagnosed with an adjustment disorder but denied any diagnosis for borderline personality disorder. Petitioner also suffers from Hashimoto's disease, a condition of the thyroid. When her thyroid hormone is low, she gets tired and that affects her ability to handle stress. Her second child, J, has attention deficit disorder and dyslexia and they were receiving help through a social worker in Germany to address his needs and the stress on the family. Petitioner described A.R. as two and a half years old and quite active.
Petitioner claimed that when she left for Germany in December 2005, it was anticipated that she would return after a couple of weeks and accompany her husband on another trip. Upon arrival in Germany, she determined that she needed to be separated from the Respondent to work through some of their conflicts and she e-mailed him of that fact. By Petitioner's account, the Respondent accepted her decision to remain in Germany although he did not agree with it. Petitioner advised that she has been living in Germany on a temporary resident permit since that time. The permit expires in February 2009, and it will be necessary for her to seek a more permanent status.
When shown joint U.S. federal tax returns for 2005 through 2007, Petitioner claimed to recognize the ones from 2005 but not thereafter. She acknowledged that she still has a Florida driver's license. Petitioner denied that her oldest son is with the father because of her disturbed mental state. She claimed that he is there by mutual agreement.
Petitioner called Respondent to testify. He testified that when he was told that Petitioner did not wish to return to the United States after leaving in December 2005, he was "in shock." He has made repeated efforts at reconciliation and wishes to have the family back together. He has made a number of trips to Germany to visit Petitioner and their son. He indicated he is against her staying in Germany and willing to do whatever is necessary to get the family together. Respondent identified an e-mail from June 2006 which reflects his sentiments in July 2007. See Pet'rs Ex. 18. He acknowledged that while he has repeatedly sought reconciliation he made no separate application for the return of his child until the most recent visit. He also acknowledged his monetary support for the child and the Petitioner while they were in Germany, and that while in Germany on a visit, he helped Petitioner decide on a potential pre-school for the child. By his account, he took the passport to prevent the Petitioner from returning the child to Germany, which he viewed as inconsistent with the Florida state court standing order. Respondent acknowledged that Petitioner requested that he return the passport but he declined to return it to her. He testified that the chart reflecting family visits appears accurate. See Pet'rs Ex. 19.
When called by his own counsel, Respondent testified that he is concerned about losing a relationship with his son and concerned about his son's health and well being. He noted that Petitioner's second son, J, evidences a number of problems that he attributes to the boy not having had contact with his father. Thus, J demonstrates some of the same insecurities and self image problems that he sees in Petitioner. He described Petitioner as very insecure and capable of an explosive temper. She has attacked him a number of times. In 2004, he found Petitioner cutting herself with a razor blade. When he attempted to intervene, she became violent toward him to the point where police had to be called. He expressed concern that she may have an episode in the future where she loses control and harms the children.
He testified that he and Petitioner discussed not having a child because of issues they were dealing with. Part of the issues were her mood swings and volatile and aggressive nature, as well as her inconsistencies.
By his account, he never agreed to relocate to Germany and fully intended that they reside as a family in the United States. He had no prior notice of the proceedings in Germany before the order was entered concerning habitual residence.
In describing Petitioner's mental state, Respondent indicated that she withdraws into her "snail house," a place which she described as her "little universe" into which she will crawl when she withdraws. This type of circumstance is what causes him to fear for A.R.'s safety if he is permitted to return to Germany. He also fears the loss of any relationship with his son in Germany, which is tied to the Department of State Report concerning Germany. On cross-examination, Respondent acknowledged that his son's native language is German. While Respondent does not agree that his son was "settled" there, he conceded that his son did have a routine there.
In support of his due-process argument, Respondent introduced the United States Department of State Report on Compliance with the Hague Convention dated April 2008. See Resp'ts Ex. 2. The report finds, "Germany continued to demonstrate patterns of non-compliance with the Hague Convention, noting an unwillingness on the part of some judges and law enforcement personnel, or others within the child welfare system to vigorously enforce German orders granting parental access." As a consequence, "a number of U.S. parents still face problems obtaining access to and maintaining a meaningful parent/child relationship with their children who remain in Germany." See id. at 14.
II.
The Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, to which Germany and the United States are signatories, was adopted in 1980 "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." The rationale underlying the Convention is that a child's country of habitual residence is the place where decisions relating to custody and access are best decided. Bocquet v. Ouzid, 225 F. Supp. 2d 1337, 1340 (S.D. Fla. 2002). The United States implemented the Convention through the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq., which entitles a person whose child has been wrongfully removed to, or wrongfully retained in, the United States to petition a federal court to order the child returned. 42 U.S.C. § 11603(b). Courts considering an ICARA petition have jurisdiction to decide the merits only of the wrongful removal or retention claim, not of any underlying custody dispute. Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998); see also Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996).
The Convention was reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986).
The United States ratified the Convention in November 1986 and, in November 1988, President Reagan issued a Proclamation that the Convention had entered into force for the United States on July 1, 1988, and that it must be observed and fulfilled in good faith by the United States and its citizens thereafter. ICARA was enacted during the same year to implement the Convention.
The petitioner bears the initial burden of proving by a preponderance of the evidence "that the child has been wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1)(A); see also Ruiz v. Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004). To establish a case of wrongful removal or retention, the Petitioner must establish by the preponderance of the evidence that: (1) A.R. was a "habitual resident" of Germany immediately before the date retained by the Respondent; (2) the retention was in breach of the Petitioner's custody rights under the law of Germany; (3) Petitioner had been actually exercising or would have been exercising custody rights concerning A.R. at the time of A.R.'s retention; and (4) the child has not attained the age of 16. See Convention, art. 3, T.I.A.S. No. 11,670 at 2; Ruiz, 392 F.3d at 1251; Lops, 140 F.3d at 936 (citing 42 U.S.C. § 11603). If this burden is met, the child must be promptly returned unless the respondent can establish that one of the Convention's enumerated defenses applies. Lops, 140 F.3d at 945.
There are four affirmative defenses under the Hague Convention, only two of which are asserted by Respondent here: (1) there is a grave risk that the return of the child would expose it to physical or psychological harm (Art 13b), and (2) the return of the child "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Art. 20)." These two defenses must be shown by clear and convincing evidence. All four of the exceptions are construed narrowly. 42 U.S.C. § 11601(a)(4); Friedrich, 983 F.2d at 1400.
The other two defenses are: (1) the proceeding was commenced more than one year after the removal of the child and the child has become settled in his new environment (Art 12); and (2) the person seeking return of child consented to or later acquiesced in the removal or retention (Art 13a). These two defenses must be established by a preponderance of evidence.
III. A.
Here, the dispute is over Petitioner's ability to prove the first element — that the child's habitual residence is in Germany. It is undisputed that Respondent has detained A.R. from returning to Germany with his mother by surreptitiously seizing and thereafter holding A.R.'s passport. Immediately prior to this visit, Petitioner had custody of this two and a half year-old child and both had been residing in Germany. It appears that under German law, the custody is mutual. Here, a German court has issued a ruling, albeit ex parte, finding Respondent in violation of Petitioner's custody rights because the child's habitual home is in Germany under the care and custody of his mother. That latter conclusion is not binding on this court under the Convention. Respondent maintains that the child's habitual residence is the United States, where the child was conceived and from which the mother departed in December 2005, ostensibly for a temporary visit to Germany.
Petitioner clearly had lawful custody at the time of this visit and the retention of the child. By its November 24, 2008, Order, the German court found the retention in violation of Petitioner's custody rights, given the habitual residence of the child in Germany. Pet'rs Ex. 17. Respondent has not disputed the remaining elements.
The interpretation of "habitual residence" is vitally important to the Convention because it will dictate the arbiter of the custody dispute. However, neither the Convention nor ICARA actually define the term "habitual residence." Ruiz, 392 F.3d at 1252. The Eleventh Circuit in Ruiz has set forth the analytical framework for determining "habitual residence." "The first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind." Ruiz, 392 F.3d at 1252 (citing Mozes v. Mozes, 239 F.3d 1067, 1075 (9th Cir. 2001)). "[W]hen an alleged abandonment of a clearly established habitual residence for a new home is at issue, the court must determine not only whether the child was settled in his new home, but whether the prior habitual residence was abandoned, and the new home has supplanted the old 'as the locus of the [child's] family and social development.'" Small v. Clark, No. 5:06-CV-125-OC10GRJ, 2006 WL 2024955, at *4 (M.D. Fla. July 17, 2006) (unpublished opinion) (quoting Mozes, 239 F.3d at 1084). "It is not necessary to have this settled intention at the time of departure, as it could develop during the course of a stay originally intended to be temporary." Ruiz, 392 F.3d at 1252 (citing Mozes, 239 F.3d at 1075). The determination of this "subjective" settled intent is important "because there can be no bright line rule with respect to the length of an absence." Id. at 1253. "'All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.'" Id. at 1252.
Because a young child (such as two and a half year old A.R.) does not have a "settled intent" independent of his or her parents, a court should look to "the settled purpose and shared intent of the child's parents in choosing a particular habitual residence." Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004); see also Ruiz, 392 F.3d at 1253. Importantly, the emphasis is on the shared intentions of both parents rather than unilateral intentions of one parent. Samholt v. Samholt, No. 1:06CV00407, 2006 WL 2128061, at *2 (M.D. N.C. 2006) (citing Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). "Because the Convention tries to prevent one parent from unilaterally determining the country in which the child will live, the habitual residence of the child cannot be shifted without mutual agreement. [Citation omitted]. Moreover, courts have generally refused to find that the changed intentions of one parent shifted the child's habitual residence." In re Ahumada Cabrera, 323 F. Supp. 2d 1303, 1311 (S.D. Fla. 2004) (citing Mozes, 239 F.3d at 1077).
Citing again to Mozes, the Eleventh Circuit in Ruiz described three categories of difficult cases that arise when the persons entitled to fix the child's residence do not agree on where it has been fixed: "(1) where the court finds a shared settled purpose, despite one parent having 'had qualms about the move,' and where there is a finding that the 'family has jointly taken all the steps associated with abandoning habitual residence in one country to take it up in another'; . . . (2) cases where the 'initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period,'; and (3) cases 'where the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration.'" Ruiz, 392 F.3d at 1253 (quoting Mozes, 239 F.3d at 1076-77). In regards to this last category of cases, the court added,
Sometimes the circumstances surrounding the child's stay are such that despite the lack of perfect consensus, [a court may find] the parents to have shared a settled mutual intent that the stay last indefinitely. When this is the case, we can reasonably infer a mutual abandonment of the child's prior habitual residence. Other times, however, circumstances are such that, even though the exact length of the stay was left open to negotiation, the court is able to find no settled mutual intent from which such abandonment can be inferred.Id. at 1253 (quoting Mozes, 239 F.3d at 1077-78). The facts in this case do not fit squarely into any one of these three scenarios. Nonetheless, certain of the analyses aid the inquiry in this matter.
In addition to the settled intention of the parents, for there to be a relocation of the habitual residence, "there must be an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized." Ruiz, 392 F.3d at 1253. However, such indicators of "acclimatization," such as doing well with school and friends, see id. at 1253-54, are not a significant factor when the child removed was younger than three years old. See Yocom v. Yocom, No. 6:05CV590ORL28DAB, 2005 WL 1863422, at *5 (M.D. Fla. Aug. 5, 2005) (unpublished opinion) (in the case of a very young child, "acclimatization is not nearly as important as the settled purpose and shared intent of the child's parents in choosing a particular habitual residence") (citation omitted).
Finally, "when there is no shared settled intent on the part of the parents to abandon the child's prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence. . . ." Ruiz, 392 F.3d at 1254. The determination of "habitual residency" is a mixed question of fact and law. Id. at 1251-52. The Court is faced with a fact-intensive inquiry, which culminates in a legal determination of habitual residency.
"In this capacity, the judge's function includes weighing the evidence, evaluating the credibility of witnesses, and deciding questions of fact, as well as issues of law." Small, 2006 WL 2024955, at *3 (citing Childrey v. Bennett, 997 F.2d 830, 834 (11th Cir. 1993)).
B.
Because I conclude that the Respondent, despite his good intentions, has wrongfully retained A.R., I recommend that the petition be granted. Stated otherwise, in the particular circumstances of this case and despite the earlier unilateral actions of the Petitioner, I conclude the child's habitual residence is in Germany with the Petitioner and the child's passport should be released to Petitioner so that they may return home.Initially, I agree with Respondent that, to the extent that these two parties had a shared mutual intent in December 2005, it was that their habitual residence was in the United States. As Petitioner testified, she returned to the United States in May 2005 with the intention of reconciling with Respondent. In August 2005, Petitioner and Respondent married and Petitioner acknowledged that they did not plan to live together in Germany. Rather, once married, Petitioner indicated she and Respondent did not agree where to live but it would be in the United States. Until she left in December 2005, the couple lived in Respondent's house in Tampa. In December 2005, the Petitioner left for Germany, ostensibly for a two-week visit. Thereafter, Petitioner unilaterally altered the plan and determined to separate from Respondent and remain in Germany while the couple worked out their problems. Some five months later, Petitioner gave birth to A.R. At the time of A.R.'s birth in May 2006, it is impossible to conclude that the parties' any longer had a shared settled intent with regards to their habitual residence (and therefore A.R.'s habitual residence). Nonetheless, were this all and were the focus of the inquiry solely on this period of time, I would conclude that the habitual residence remained in the United States at that point in time. However, because that conclusion focuses only on what transpired immediately after Petitioner left for and determined to stay in Germany and ignores what has occurred over the course of two-plus years thereafter, I am compelled to reach a different conclusion.
Had Respondent himself acted within one year of that time to seek relief under the Convention, the court in Germany would have undoubtedly been obliged to order the child's return to the United States. See Convention, art. 12. However, because he did not, the protections afforded him under the Convention now turn on whether the Petitioner and A.R. became settled in Germany.
Under the Convention, the pertinent inquiry is the child's habitual residence immediately before the date he was wrongfully retained by the Respondent. Here, we look to August 2008. At that point in time, A.R. had lived in Germany his entire life. At close to two and a half years old, he spoke German and knew little more than a German upbringing in a family unit with two half-brothers. It is correct that the mother resides there on a three-year visa which will expire in 2009, but it appears a non-issue that she may extend that visa or procure permanent status. See Pet'rs Ex. 20. She has availed herself of available social programs in Germany to help her support all her family. Undoubtedly, the Respondent has continuously evidenced his desire to reconcile and to bring the family together in the United States. Thus, since the child's birth and through the August 2008 visit, Respondent has helped support A.R. and his mother financially, even purchasing vehicles for Petitioner's use in Germany. He is a good father and has remained in regular telephone contact with Petitioner and A.R. Respondent also has visited them in Germany for several days on six separate occasions. On one visit, he participated in a visit to one of A.R.'s doctor's, and he and Petitioner looked at preschools for A.R. to attend in the future. He also paid for trips for them to visit with him with some regularity in the United States. While the Respondent indicated that he did this in hopes of reconciliation (and their return to the United States), and such arguably militates against a finding of acquiescence, I conclude from all the circumstances and events during this period of time that the parties came to accept A.R.'s habitual residence in Germany with his mother. While Respondent declined to acknowledge that A.R. and his mother are "settled" in Germany, he conceded that they have a "routine" there. Indeed, it is the only routine the child has known and it is one the Respondent helped foster and has accommodated. Here, the parties had no shared settled intent when the child was born. To the extent that such can be gleaned from the circumstances thereafter, I conclude that the objective evidence reveals that over time, the parties' shared intention, absent a reconciliation, was that A.R.'s habitual residence was in Germany with his mother. Respondent wrongfully seized the child's passport in an effort to prevent his return to Germany.
C.
Respondent argues that, even if the Petitioner establishes a prima facie case of wrongful removal, the court is not bound to remove A.R. from the United States as a result of his affirmative defenses. He asserts two defenses: (1) returning A.R. to Germany would pose a grave risk of exposing him to physical or psychological harm or otherwise place him in an intolerable situation, and (2) returning A.R. "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Convention, arts. 13b, 20.
Pursuant to Article 13b of the Convention, the court may decline to return a child wrongfully removed from his habitual residence if it is established by clear and convincing evidence that the return would present a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. Baran v. Beaty, 526 F.3d 1340, 1345 (11th Cir. 2008). Based on the testimony and evidence submitted, Respondent has failed to establish this defense. As set forth above, the testimony reveals that Petitioner has experienced emotional problems and depression, has at one point taken medication for the same, and has engaged in behaviors harmful to herself when in stressful situations. She does not deny this. These concerns, however, do not rise to the level of "grave danger" as contemplated under the Convention. See Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir. 2003) ("there are two types of grave risk that are appropriate under Article 13b: sending a child to a 'zone of war, famine, or disease,' or in cases of serious abuse or neglect.") (citing Friedrich, 78 F.3d at 1069; Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001)). Respondent proffers no other allegations or evidence on this defense aside from Petitioner's mental condition. No evidence was presented that Petitioner has ever harmed A.R. or her other children. Rather, the testimony showed her to be a loving and caring mother. In short, there is no clear and convincing evidence that Petitioner's mental condition would expose A.R. to a grave risk of physical or mental harm or otherwise place him in an intolerable situation were he to be returned to Germany.
With respect to the other defense, Respondent fails to demonstrate that returning A.R. to Germany is contrary to the fundamental principles of the United States. His only support for this contention is the country report on Germany for the year 2007 by the United States Department of State. See Resp'ts Ex 2 at 14. The observations in that report simply do not establish that the return of the child to Germany would violate fundamental principles of the United States relating to the protection of human rights and fundamental freedoms. Nor is there a clear and convincing showing that German courts will not be as equally compelling at protecting the rights of these parties as would a court of the United States.
German law presumptively confers, upon both parents, joint custody of a child until a competent court enters a contrary order. See Bader v. Kramer, 445 F.3d 346, 350 (4th Cir. 2006). Respondent does not demonstrate that he will not have a fair opportunity to litigate the matter of custody and/or visitation in Germany.
IV.
For the reasons set forth above, it is recommended that the court GRANT the Petition for the Return of the Child to Petitioner and Petition for Immediate Issuance of Show Cause Order to Respondent (Doc. S-5) and direct the Clerk to return the child's passport to the Petitioner. It is recommended further that Petitioner be awarded the fees, costs, and expenses reasonably associated with her Petition.NOTICE TO PARTIES
Failure to file written objections to the proposed findings and recommendations contained in this report within ten days from the date of its service shall bar an aggrieved party from attacking the factual findings on appeal and a de novo determination by a district judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; M.D. Fla. R. 6.02; see also Fed.R.Civ.P. 6; M.D. Fla. R. 4.20.