                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-1414


DANIELA SMEDLEY,

                Petitioner - Appellee,

           v.

MARK A. SMEDLEY,

                Respondent - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:14-cv-00066-F)


Argued:   September 17, 2014                Decided:   November 5, 2014


Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Niemeyer and Judge Thacker joined.


ARGUED: Clifton Jason Humphrey, GAYLOR, EDWARDS, VATCHER &
HUMPHREY, LLP, Jacksonville, North Carolina, for Appellant.
Thurston Holderness Webb, KILPATRICK TOWNSEND & STOCKTON LLP,
Winston-Salem, North Carolina, for Appellee. ON BRIEF: Chad D.
Hansen, Andrew W. Rinehart, KILPATRICK TOWNSEND & STOCKTON LLP,
Winston-Salem, North Carolina, for Appellee.
DUNCAN, Circuit Judge:

        Ever since A.H.S. and G.A.S., the Smedley children, left

North Carolina with their mother, Daniela Smedley, they have

lived with only one of their parents.                 First, Daniela took them

to Germany, where they stayed with her.                     Later, during a one-

month visit to North Carolina to see their father, Daniela’s ex-

husband      Mark     Smedley,    Mark    decided   to    keep      them.         In   each

instance, the parent not housing the children (i.e. first Mark

and then Daniela) petitioned under the Hague Convention on the

Civil       Aspects     of     International     Child     Abduction,        a     treaty

designed      to      return    children    wrongfully       removed        from       their

“habitual residence.”

     A German court denied Mark’s Hague petition, and a German

appellate court affirmed, so Daniela did not have to return the

children to North Carolina.                After Mark decided to keep them

following their visit, the U.S. District Court for the Eastern

District      of    North      Carolina    accorded      comity 1    to     the    German

appellate      court’s       decision.      It   therefore       granted      Daniela’s

Hague petition, ordering the children’s return to Germany.                               On




        1
       “A practice among political entities (as countries,
states, or courts of different jurisdictions), involving esp.
mutual recognition of legislative, executive, and judicial
acts.” Black’s Law Dictionary 324 (10th ed. 2014).


                                           2
appeal, Mark argues that the district court erred in according

comity.     For the reasons that follow, we affirm.



                                             I.

      The goals of the Hague Convention are “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.” 2

Convention on the Civil Aspects of International Child Abduction

art. 1, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 98

(“Hague Convention”) (implemented through the enactment of the

International Child Abduction Remedies Act, 22 U.S.C. § 9001 et

seq.).      The Convention often comes into play when one parent

abducts     a    child    from   the   child’s         habitual        residence     to    that

parent’s        home   country   in    order      to     gain      a    favorable    custody

ruling.         Though    the    Convention           does   not       empower   courts      to

address “the merits of any underlying child custody claims,” 22

U.S.C. § 9001(b)(4), its primary operative provisions, found in


      2
       Both the United States and Germany are Contracting States.
U.S. Dep’t of State, Bureau of Consular Affairs, U.S. Hague
Convention                    Treaty                    Partners,
http://travel.state.gov/content/childabduction/english/country/h
ague-party-countries.html (saved as ECF opinion attachment)
(last visited Nov. 4, 2014).


                                             3
Articles 3, 12, and 13, do allow them to consider abduction

challenges.

       Under Article 3, the removal or retention of a child is

wrongful when it breaches a person’s rights of custody “under

the    law    of    the   State    in    which        the    child    was       habitually

resident.”         Hague Convention art. 3.               The Hague Convention does

not define “habitual residence.”                    United States federal courts

analyze a child’s habitual residence on a case-by-case basis,

taking into account first, whether the parents share an intent

to    make   a     particular   country       the     child’s    home,      and     second,

whether enough time has passed for the child to acclimatize to

the residence.         See Maxwell v. Maxwell, 588 F.3d 245, 251 (4th

Cir. 2009).          The underlying principle here is that “a parent

cannot create a new habitual residence by wrongfully removing

and sequestering a child.”              Miller v. Miller, 240 F.3d 392, 400

(4th Cir. 2001) (citing Diorinou v. Mezitis, 237 F.3d 133, 141–

42 (2d Cir. 2001)).

       If a removal or retention is found wrongful, Article 12

provides that the child must be returned unless certain defenses

apply.       See     Hague   Convention           arts.   12,   13.        If   a   defense

applies, return is discretionary.                    Id. art. 13.           The defenses

include the following: (1) the person who had care of the child

“was not actually exercising the custody rights at the time of

removal      or    retention,     or    had       consented     to    or    subsequently

                                              4
acquiesced in the removal or retention”; (2) there is a “grave

risk”      that    “return      would      expose        the    child        to    physical      or

psychological        harm”;      and       (3)       “the    child     objects          to    being

returned and has attained an age and degree of maturity at which

it is appropriate to take account of its views.”                                  Id.        Against

that background, we now turn to the facts before us.



                                              II.

                                                 A.

        The Smedleys married in 2000 in Germany, where Mark was

stationed     as    a    member       of    the       United        States    Army.           Their

children,     A.H.S.      and    G.A.S.,          were       born     in    2000     and      2005,

respectively.           Except       for    approximately             one     year      spent     in

Tennessee, the family lived in Bamberg, Germany, until August

2010, when Mark was transferred to North Carolina.                                 He bought a

house in Swansboro and brought the family with him.

      At    this    point,      the       parties’       stories       diverge.              Daniela

claims that marital tensions, which had surfaced in Germany,

were exacerbated in Swansboro by her homesickness and isolation

to such an extent as to lead to discussion of divorce.                                       Daniela

maintains that she told Mark she was returning to Germany with

the children permanently in May 2011, and he consented.                                      Daniela

and   the    children     left       on    July       13th     of    that    year.           Because

Daniela      had    agreed      to     take       four       weeks    to     reconsider         her

                                                 5
decision, Mark bought them round-trip tickets with a return date

of August 11, 2011.       Mark told Daniela that if she chose to stay

in Germany, he would try to relocate there to be close to the

children.     In late July 2011, Daniela informed Mark via phone of

her decision to remain in Germany.

     Mark, on the other hand, denies that he and Daniela ever

discussed divorce and claims that the trip to Germany was to be

nothing     more   than   a    one-month      vacation.       In   his    version,

Daniela’s     decision    to    stay     in   Germany   came    as    a   complete

surprise:    he    learned     of   it   only   after   the    late   July   phone

conversation, about two weeks after she had already left North

Carolina.     She had not told him of her intent in May, and he had

not consented to a permanent move.

                                         B.

     On September 2, 2011, Mark obtained a temporary custody

order from the District Court of Onslow County, where Swansboro

is located.        In October, he filed a Hague petition in Germany

seeking the children’s return.

     The District Court of Bamberg denied Mark’s Hague petition.

It based the denial in part on the findings of a court-appointed

family advocate.       The court credited the advocate’s allegations

that Mark had physically abused A.H.S. and found that returning

the children to North Carolina would expose them to a serious

risk of harm, one of the Article 13 defenses.

                                          6
     Mark appealed the District Court of Bamberg’s decision to

the Bamberg Higher Regional Court.                     There, Daniela, A.H.S., the

family     advocate,      and      a    representative          from       the   Office      of

Children    Protection       Services          of    Bamberg    testified        in   person.

Mark, who was unable to attend because his passport was expired,

testified through his lawyer.                       The court agreed with Daniela

that Mark had consented to the move to Germany, finding her

testimony more credible than Mark’s.                     As consent is another of

the Article 13 defenses, the court held that Daniela need not

return the children without determining whether North Carolina

or Germany was their habitual residence.

                                               C.

     Mark and Daniela obtained a divorce under German law in May

2012,    and     the    children       lived    with    Daniela       in    Bamberg        until

August 2013.           Daniela agreed in June 2013 to let the children

visit Mark because they wanted a vacation and had not seen their

father in two years.            On August 6th, Mark picked the children up

at Ramstein Air Base in Germany.                      He gave Daniela a notarized

document stating that he would return the children on or about

August     26,    2013,     with       the     exact     date    to        depend     on     the

availability of military flights.

     Expressing concerns over their dental care and schooling,

Mark kept the children in North Carolina and informed Daniela of



                                               7
his decision via Facebook on August 27, 2013.                  He enrolled the

children in the Onslow County school system.

      Daniela filed a Hague petition in the U.S. District Court

on April 7, 2014.            In a comprehensive opinion, the district

court, ruling that the Bamberg Higher Regional Court’s finding

on consent was not “wholly unsupported,” accorded comity to that

decision. 3      J.A. 59.

      First, the district court concluded that the German court’s

failure to determine the children’s habitual residence was not

fundamentally unreasonable because the decision “rested on what

is   akin   to    an   affirmative    defense   in   Article   13(a)”:    Mark’s

consent to the move.            J.A. 56.        Second, the district court

reasoned      that,     based    on   the     German    court’s    credibility

determinations,        the   testimony   supported     the   contention   “that

Mark had agreed to the trip with the knowledge that Daniela and

the children might not return.               That the German court did not

credit Mark’s version of the story does not render its Article

13(a) determination . . . fundamentally unreasonable.”                J.A. 57.

Third, the district court rejected Mark’s argument that, because

he did not formally manifest his non-consent, he did not consent

to Daniela’s decision, by noting that “[c]onsent . . . ‘may be


      3
       Henceforth in this opinion, the term “German court” refers
to the Bamberg Higher Regional Court.


                                         8
evinced by the [parent’s] statements or conduct, which can be

rather    informal.’”    J.A.   58    (second   alteration   in   original)

(quoting Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir.

2010)).

     Having found that Daniela did not wrongfully remove the

children to Germany and reasoning that they had acclimatized to

life in Germany between July 2011 and August 2013, the district

court found that Germany was the children’s habitual residence

at the time of their visit to North Carolina. 4         Because Mark did

not assert any defense, the court allowed Daniela’s petition and

awarded her physical custody for the purpose of returning the

children to Germany. 5   This appeal followed.



                                     III.

     Our task is to decide whether the district court properly

accorded comity to the German court’s ruling that Daniela did

not unlawfully remove the children to Germany.           This court has

noted that, though foreign judgments are not entitled to full

     4
       Mark does not contest that the children had acclimatized
to life in Germany. Rather, he argues that Germany was not the
children’s habitual residence at the time of their visit to
North Carolina because Daniela’s removal of them to Germany in
2011 was wrongful.
     5
       We denied Mark’s motion to stay the district court’s order
pending appeal.     Order, May 1, 2014, ECF No. 8.        Daniela
returned to Germany with the children the next day.


                                      9
faith     and   credit,     “comity     is      at    the   heart    of    the     Hague

Convention.”          Miller, 240 F.3d at 400 (quoting Diorinou, 237

F.3d at 142) (internal quotation marks omitted).                          Accordingly,

“American courts will normally accord considerable deference to

foreign    adjudications      as    a   matter       of   comity.”    Id.       (quoting

Diorinou, 237 F.3d at 142) (internal quotation marks omitted).

The Ninth Circuit has provided a useful framework for extending

comity    in    Hague   cases:     “[W]e   may       properly   decline     to   extend

comity    to    the    [foreign]    court’s      determination       if    it    clearly

misinterprets the Hague Convention, contravenes the Convention’s

fundamental premises or objectives, or fails to meet a minimum

standard of reasonableness.” 6             Asvesta v. Petroutsas, 580 F.3d

1000, 1014 (9th Cir. 2009).

     We have yet to decide whether to review comity decisions de

novo or for abuse of discretion, and need not do so here. 7                        Under


     6
        Relying on Miller, Daniela urges this court to refrain
from an in-depth review of the German court’s opinion and simply
ask   whether   its   reliance  on  the   Hague  Convention  was
“reasonable.”     Appellee’s Br. at 21.      But Miller did not
explicitly suggest that course, and the Second Circuit pointed
out in Diorinou that “[a]lthough deference as a matter of comity
often entails consideration of the fairness of a foreign
adjudicating system, a case-specific inquiry is sometimes
appropriate.”    Diorinou, 237 F.3d at 143 (citations omitted).
In any event, whether we follow Daniela’s proposed standard of
review or that described in Asvesta, the result is the same
because, as discussed below, the facts of this case render the
German court’s decision at least minimally reasonable.
     7
       The Second Circuit held that the proper standard in cases
(continued)
                                           10
either     standard,      the    district    court     properly    extended      comity

because       the     German        court’s      decision         neither       clearly

misinterpreted the Hague Convention nor failed to meet a minimum

standard of reasonableness. 8          Mark makes two arguments on appeal,

which we address in turn.

                                            A.

      Mark     first       argues     that       the    German      court     clearly

misinterpreted the Hague Convention because it failed to make a

habitual-residence determination before addressing the defense

of consent.        The order of analysis matters, he contends, because

the German court “would have been compelled to find that [the

children’s] habitual residence was North Carolina,” Appellant’s

Br.   at     15,    and   such    a   finding     “might    have     made   a    court

respectful of the Hague Convention more reluctant to find that

the defenses of Article 13 applied in the case,” id. at 16.                         We

are not persuaded.



such as this one is de novo. See Diorinou, 237 F.3d at 139–40.
The Ninth Circuit acknowledged that holding but ultimately left
the issue open. See Asvesta, 580 F.3d at 1009–10.
      8
        Mark argued to the U.S. District Court that the German
court’s    failure   to determine   habitual  residence  clearly
misinterpreted the Hague Convention and that by allowing Daniela
“to forum shop for a jurisdiction that she preferred for
custody,” J.A. T.95, it contravened the Convention’s fundamental
premises.     Because both prongs turn on whether the German
court’s failure to determine habitual residence was proper, they
are inextricably tied in this case.


                                            11
        Mark’s contention that the German court would necessarily

have     found       North     Carolina      to    be     the        children’s    habitual

residence is pure conjecture.                     Further, he cites no authority

for the proposition that a court must decide habitual residence

before addressing defenses.                  Nor is there anything in the text

of the Hague Convention that requires a court to address Article

3 first.       The Hague Convention does not set out a roadmap, only

principles.

       It is true that in Asvesta, the Ninth Circuit criticized a

Greek        court     for     failing        to    make         a     habitual-residence

determination.          580 F.3d at 1017.             The Greek court had decided

that the respondent’s retention of the child in Greece was not

wrongful because the petitioner was not exercising his custodial

rights at the time.             See id. at 1016–17.              But in Asvesta it was

necessary to determine the child’s habitual residence because

that country determines custodial rights, see Hague Convention

art.    3;    as     such,    the    Greek    court       could      not    have   addressed

custodial      rights        without   first       knowing       the    child’s    habitual

residence, see Asvesta, 580 F.3d at 1017.                              The Ninth Circuit

therefore reasoned that the Greek court’s failure to determine

the    child’s       habitual       residence      cast    doubt       on   its    wrongful-

removal determination under Article 3.                     Id.

       By contrast, here the habitual-residence question was not

dispositive or even helpful, as the court’s conclusion did not

                                              12
turn on habitual residence or custodial rights.                     Even if the

German     court   had   assumed      that     the    children    were   habitual

residents 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. 9

The district court analogized such a process to granting summary

judgment based on an affirmative defense after assuming that the

plaintiff made out a prima facie case, as courts routinely do.

                                         B.

     We next consider Mark’s argument 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.                The German court found

credible Daniela’s testimony that Mark knew she went to Germany

with the intent of staying there with the children, and that

Mark consented to that move in the event she did not change her

mind.      Though the court made such a determination with Mark

present    only    through     his   lawyer,    the    decision   was    at   least

minimally reasonable.

     According      to   the    German   court,       Daniela’s   testimony     was

“detailed, coherent and consistent.”                  J.A. 27.     Also, A.H.S.

     9
       Notably, the Asvesta court neither discussed nor even
mentioned  habitual  residence   when addressing the  consent
defense. See 580 F.3d at 1019–20.


                                         13
corroborated it, stating that Mark had promised her she could

stay in Germany.         (The family advocate reported to the German

district court that she found A.H.S. to be “very authentic,”

J.A. 66E, and confirmed that report to the regional court.)

     By contrast, the German court found that Mark’s testimony

through   his   lawyer    was    not   credible.   In   addition   to    being

“unsubstantiated,” J.A. 28, its accuracy was also called into

question.     Mark initially asserted to the German court that he

first learned of Daniela’s decision to stay in Germany on August

10, 2011, the day before the scheduled return flight.                   But he

later admitted that nine days earlier, on August 1st, he had

authored a Facebook post, which he had since removed, that read

in part, “Please come back to me.            I am really taking this hard

right now.”     J.A. 37.        That post casts doubt on Mark’s initial

statement about when he first learned of Daniela’s decision, 10

and is also consistent with Daniela’s story that she made her

decision to stay in Germany prior to leaving North Carolina,

while agreeing to reconsider.


     10
       After Daniela introduced the Facebook post, Mark’s lawyer
telephoned him.   Mark explained that Daniela told him over the
phone in late July that she would probably not return. He would
later attest the same to the U.S. District Court, and to this
court in his brief. Even though the Facebook post is consistent
with that testimony, the post is inconsistent with his initial
testimony before the German court and thus supports that court’s
negative credibility determination.


                                        14
       Mark argues that this case is “virtually indistinguishable”

from Asvesta, in which the Ninth Circuit found that the Greek

court’s consent determination was unreasonable.                            Appellant’s Br.

at   19.       In     Asvesta,        the     Greek      court    had     found    that      the

petitioner        consented       to       the    child’s        removal       based    on   an

ambiguous email and a notarized writing giving permission to his

wife to travel temporarily with the child.                             580 F.3d at 1019.

In the email, dated November 2, 2005, the petitioner pleaded

with his wife to stay in the United States.                              Id. at 1005.         He

wrote that if she would not, then he would ask for a divorce and

she should “[g]o to Greece with the child and we will see how I

will   come    to     Greece      to    visit         him.”      Id.      He    subsequently

executed a writing, notarized on November 11, 2005, id. at 1019,

which stated, “I hereby consent to Despina Asvesta Petroutsas to

travel     with     our     son   .    .    .    between       the     following       dates[:]

November 8, 2005-December 8, 2005,” id. at 1005 (alteration in

original).

       The    Ninth    Circuit         held      that    the     Greek    court’s      consent

determination         was    “completely          unsupported,         and     [was]     indeed

contradicted by, this evidence.”                      Id. at 1019.       First, the email

could be read as consent to go permanently to Greece or to

travel only temporarily, and in the context of the whole email,

the latter was more likely.                 Id.       Second, the notarized writing,



                                                 15
executed after the email was sent, unambiguously gave consent

for only temporary travel.               Id.

      By contrast, here there was no such evidence that rendered

the German court’s consent determination unreasonable. 11                           Whereas

the   petitioner’s        email     in    Asvesta      could    be     read    as    giving

consent     for        permanent    or         temporary     travel,        according     to

Daniela’s     testimony,       which       the      German    court    credited,        Mark

unambiguously consented to a permanent move.                           And unlike the

petitioner        in     Asvesta,        who     submitted     a      writing       clearly

delineating       the     period     of        consent,      Mark     did     not   submit




      11
        Evidence in the record supporting Mark’s claims includes
that he purchased round-trip tickets for Daniela and the
children, that Daniela packed enough for only a short vacation--
leaving valuables in North Carolina--and that Mark, within three
months after the children left North Carolina, began proceedings
to effect their return.   But that evidence does not render the
German court’s decision unreasonable.   Daniela testified to the
German court that Mark bought round-trip tickets because they
were cheaper than one-way tickets.      (We also note that the
purchase of those tickets is consistent with her testimony that
she promised to reconsider her decision to stay in Germany.)
And although on direct examination before the U.S. District
Court, Mark discussed the items Daniela packed, Daniela
testified in the German court--and it is the German court’s
decision we review for a minimum standard of reasonableness--
that she brought the children’s birth certificates in case she
needed them for school enrollment or other purposes, and that
Mark did not object.      Finally, even though Mark instituted
custody proceedings and filed a Hague petition after Daniela
reconfirmed her decision to keep the children in Germany, those
actions are consistent with the notion that he simply regretted
his earlier consent.


                                               16
comparable    evidence        to    the    German     court    suggesting    that

Daniela’s trip to Germany with the children was only a vacation.

     Because Daniela’s testimony was detailed and corroborated,

and the evidence did not show that Mark’s consent was for only

temporary    travel,    the    German      court’s    decision   was   at   least

minimally reasonable.



                                          IV.

     Accordingly,      for    the   foregoing       reasons,   the   judgment   of

district court is

                                                                       AFFIRMED.




                                          17
