The parties are divorced parents to a daughter, born in April 2013 in Havana, Cuba. In 2013, Ms. Lugo and the child moved to Paderborn, Germany. The couple separated in 2014, with Mr. Vonnahme pursuing a divorce in Cuba in 2015. In the divorce decree, both parents had rights of “patria postetas” (parental authority), while Ms. Lugo had “guardia y cuidada” (custody and care). Later that year, Mr. Vonnahme applied to have the divorce recognized in Germany. The Dusseldorf High Regional Court recognized the Cuban decree to the extent the parties were divorced, but did not mention custody rights. From 2013 to 2022, the child lived primarily with Ms. Lugo and stayed with Mr. Vonnahme most weekends in Germany. He also had regular vacations and holidays with the child. On January 28, 2022, Ms. Lugo took the child to Las Vegas, and the next day, she texted Mr. Vonnahme to inform him that she arrived and intended to look for work there. She also texted the father of her other child and alerted him that she had a job offer to live and work in Las Vegas. Prior to her trip to Las Vegas, she terminated her lease in Germany saying she “took a job abroad.” Mr. Vonnahme filed a request to return the child in May 2022.
The parties debated over whether Mr. Vonnahme had rights of custody, either under the Cuban decree or under German law. Both parties agree that German law states that both parents typically share parental custody, which includes that, for parents who live apart, they must agree on matters of substantial significance for the child. The difficulty surrounds the German recognition of the Cuban decree, and its silence on the custody issues. Does that silence mean that Germany recognizes the custody provisions in the Cuban decree? Or, does silence mean that Germany does not recognize the custody provisions, and therefore that void is filled by German law, which defaults to shared custody? Said differently, when Mr. Vonnahme filed to have the Cuban decree recognized, did he do so only to have the divorce recognized, then requiring the parties to engage in a separate proceeding to have the custody provisions recognized? The court asked the parties to brief these issues, and concluded that German law is silent on the process to have foreign custody decisions recognized in Germany. Section 108 of the German Civil Code could be read one of two ways: either to recognize non-divorce foreign judgments automatically without any particular proceeding or to require a proceeding (although not a particular one) to give the foreign judgment effect. Because the Court found the German Civil Code ambiguous, it proceeded to consider whether the custody terms of the Cuban decree, if they were implicitly recognized by the German courts, would provide Mr. Vonnahme with custody rights. The court concluded that the Cuban decree did provide him with custody rights because he retained patria potestas rights.
The court required the return of the child within 14 days, and “in the absence of any written agreement” about the date and time of departure, Mr. “Vonnahme has the exclusive right to the physical and legal custody of the child during the period of time required to return the child to Germany, the country of the child’s habitual residence.”