By Joshua P. Bussen

Today, in Smedley v. Smedley, the Fourth Circuit affirmed a decision by the Eastern District of North Carolina to accord comity to a German appellate court decision. In doing so it allowed a mother to return back to Germany with her children.

 Defendant Claims German Court Was Incorrect

The defendant raised two issues on appeal. First, that the German court clearly misinterpreted the Hague Convention because it failed to make a habitual-residence determination before addressing the defense of consent. Second, that the German court’s decision did not meet a minimum standard of reasonableness because the court unreasonably relied on contradictory evidence in making its credibility determination.

To Germany and Back

In 2000, Mark and Daniela Smedley married in Germany. Mark was stationed there as a member of the United States Army. Over the next five years the Smedleys had two children—A.H.S. and G.A.S. The family continued to live primarily in Bamberg, Germany until August 2010 when Mark was transferred to North Carolina. The family relocated from Germany to Swansboro, North Carolina. Mark and Daniela’s relationship began to deteriorate over the months following the move and in May 2011 Daniela returned to Germany with the children—allegedly with the consent of Mark. Daniela and Mark’s story differ as to the details, but it was clear that in late July 2011 Daniela informed Mark that she would be remaining in Germany with the children.

On September 2, 2011, Mark obtained a temporary custody order from the District Court of Onslow County in Swansboro. He then filed a Hague petition in Germany seeking the children’s return. The German court denied his petition due to findings of that Mark had physically abused A.H.S. and that Mark had consented to Daniela and the children moving back to Germany.

In 2013, Daniela agreed to let the children visit Mark in America. Mark was under express orders from Daniela to return the children within roughly twenty days. On August 27, 2013, Mark informed Daniela that he would not be returning the children. Daniela filed a Hague petition in the E.D.N.C. and that court accorded comity to the German court’s decision; holding that the children should remain in Germany with their mother. This appeal followed.

 The Hague Convention & Comity

Hague Convention: Under the International Child Abduction Remedies Act, the goals of the Hague Convention are “to secure the prompt return of children wrongfully removed to or retained in any [State under the Convention]” and ensure rights of custody are respected by different States. Under Article 3 of the Hague Convention, the removal of a child is wrongful if it breaches a person’s rights of custody “under the law of the State in which the child was habitually resident.” However, if a child will be placed in danger, or if the party consented to the removal, the return of the child is not required. Courts in State’s that adhere to the Hague Convention should not overturn another foreign court’s decision unless the court: (1) clearly misinterprets the Hague Convention, (2) contravenes the Convention’s fundamental objectives, or (3) fails to meet a minimum standard of reasonableness.

Comity: The Fourth Circuit defined comity as: “A practice among political entities involving . . . mutual recognition of legislative, executive, and judicial acts.”

 The Fourth Circuit’s Rationale

On the defendant’s first issue, the Fourth Circuit held that the Hague Convention does not set out a roadmap, only principles. Therefore, “[e]ven if the German court had assumed that the children were habitual resident of North Carolina when Daniela took them to Germany, the finding that Mark consented to that move would have still provided her with an affirmative defense to wrongful removal.” The court cited the similarity between this situation and the common American process of granting summary judgment based on an affirmative defense after assuming that the plaintiff made out a prima facie case.

On the defendant’s second issue, the Fourth Circuit found that the German court’s decision was “at least minimally reasonable.” According to this court, the German court had sufficient facts that tended to show that Daniela’s story was more credible than Mark’s. Because a showing of “minimal reasonableness” is sufficient to accord comity to a foreign court, the Fourth Circuit refused to overturn the credibility determinations made by the German Court.


The Fourth Circuit found that the German court had sufficient evidence to grant Daniela custody of the children. Therefore the “minimally reasonable” burden was satisfied and the grant of comity by the lower court was affirmed.