Preview:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MALGORZATA WAGNER, Plaintiff, v. CHARLES W. WAGNER Defendant. ) ) ) ) ) ) ) ) )

Civil Case No. RWT 07-1347

MEMORANDUM OPINION & ORDER This Court first became familiar with Plaintiff Malgorzata Wagner (formerly known as Malgorzata Pietrzak) on March 19, 2007, when her ex-husband filed a complaint against her under the International Child Abduction Remedies Act ("ICARA"),1 seeking the return of his 10-year old daughter, A.2 This Court entered a show cause order and held an initial hearing on the matter on March 23, 2007. Rather than continue with court proceedings, the parties in that case, Pietrzak v. Pietrzak, RWT 07-688, entered a joint "Voluntary Order Directing Return of Minor to Country of Habitual Residence," which the Court approved on June 11, 2007. As stated in that consent order, Mrs. Wagner, the defendant in the Pietrzak matter, was ordered to return to Poland with her daughter, A, on July 18, 2007. This order was consistent with the principles of ICARA, which

The Hague Convention, a treaty to which the United States is a signatory party, provides a mandatory remedy of return that is meant both to preserve the status quo with respect to child custody and "to deter parents from crossing international boundaries in search of a more sympathetic court." Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001) (internal quotations and citation omitted). The United States implemented the Convention's terms by statute in International Child Abduction Remedies Act ("ICARA"). Id. at 397. After A was brought to the United States by Mrs. Wagner, a Polish court determined that the removal of A from Poland violated the custody rights of Mrs. Wagner's first husband, observing that she had "move[d] to live there [in the United States] permanently." Decision of the District Court in Lublin, Poland, 6th Family & Juvenile Division, Feb. 20, 2007 at 4, Court's Exhibit 1.
2

1

-1-

provides a mandatory remedy of return of abducted children. Miller, 240 F.3d at 398.3 Ms. Wagner now returns to this Court as a plaintiff, but the issue concerns a different child. Based on information in the record, it is undisputed that Plaintiff met Defendant, Mr. Wagner, in September, 2005 while he was conducting business in Poland. After this five-day visit, Mr. Wagner returned to his home in St. Mary's County, Maryland. Plaintiff and Defendant remained in contact, and Mr. Wagner visited Poland a second time for a nine-day vacation in December, 2005. In

January, 2006, Plaintiff came to St. Mary's County, Maryland to visit Mr. Wagner. After this visit, the two became engaged. Mrs. Wagner subsequently came to the United States with her daughter, A. On June 14, 2006, Plaintiff and Defendant were married in a civil ceremony in the United States. Plaintiff gave birth in the United States to the couple's son, T, on February 28, 2007, and the child has resided continuously in this country since his birth. In light of this Court's order directing Mrs. Wagner to return to Poland with her 10-year old daughter, A, Plaintiff now seeks to bring with her the infant child, T, who was fathered by Mr. Wagner. She has fashioned her request as a "Motion to Establish Poland as County of Habitual Residence," asking this Court to enter an order declaring Poland to be the "habitual residence" of the infant, T, even though T has never been in Poland. For reasons stated below, this Court cannot grant Plaintiff's petition.

In her complaint, Plaintiff admits to violating the law: "the [...] taking of A was wrongful, and it is not surprising that A must return home to Poland. [Plaintiff] had no authority to remove A from Poland. [Plaintiff] assumed the risk that the translocation would fail because [she] acted without the necessary authority and consent. Petitioner's Memorandum in Support of Verified Petition at 7. Plaintiff has tried to characterize the abduction of A as a decision and action carried out by Plaintiff and Defendant together, acting in concert with one another. Because the Court concludes that it lacks jurisdiction, it need not resolve this dispute.

3

-2-

I. "The Hague Convention is by its terms intended `to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and ... to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.'"Bader v. Kramer, 445 F.3d 346, 349 (4th Cir. 2006) (quoting Article 1 of the Hague Convention). Article 3 of the Convention further defines the removal of a child as wrongful when custody rights are breached according to the law of the State in which the child was habitually resident immediately before the removal or retention, and said custody rights were actually exercised, or would have been so exercised but for the removal or retention. Hague Convention, art. 3, T.I.A.S. No. 11,670, at 1501, 19 I.L.M. 1501 (1980).4 According to the Hague Convention, jurisdiction in this Court is proper only when there has been a removal or retention in violation of custody rights. Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001). "[T]he scope of a court's inquiry under the Hague Convention is limited to the merits of the abduction claim." Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001). The Fourth Circuit has further explained that in ICARA cases, the federal courts must be careful not to get involved with access or custody determinations, as there is "long established precedent that federal

4

The full text of Article 3 of the Convention is as follows:

The removal or the retention of a child is to be considered wrongful where

Download Malgorzata Wagner v. Charles W. Wagner (Memorandum Opinion & Order).pdf

Maryland Law