Case Update (1 August 2025): Bayerlein v. Anderson; Parent’s Consent was limited in duration, and therefore an intention to retain the child beyond that duration was wrongful
The parties in this case are parents to a five-year-old daughter, who was born in Germany to her German mother and U.S. citizen father. The parties met when the child’s father was stationed in Germany for his U.S. military service. He was residing in the USA when the child was born, but returned to Germany in April 2021 (the year after the child’s birth) and resided with the child and mother until he brought the child, with consent of the mother, to Illinois in October 2024. The parties had signed a “Certificate of Declaration of Custody” in advance of the travel, agreeing to joint custody over the child. They also executed a “Consent Form” that authorized the father to travel with the child to the USA from October 31, 2024 to December 31, 2025. They packed up the child’s belongings and sent them to the USA. Several weeks after the child’s arrival in the USA, the child informed her mother that she was not returning to Germany and the USA was now her home. After this conversation, the mother alerted the father that she wanted the child returned immediately. She revoked the child’s authorization to travel and to receive medical care while with the father (the validity of the revocation, the court determined, would be addressed by a a court in the child’s habitual residence). The child, since arriving in the USA, was in summer camp, made friends, was enrolled in school, attended church activities, had family, and received medical care. She speaks both English and German. The child maintained communication with the mother in Germany, and the father invited her to visit the child in the USA in summer 2025.
The court examined two key issues in its opinion. The first was the date on which the court felt that the child’s presence in the USA became wrongful, if at all. The court concluded that the first potential date could be November 2024, when the mother clearly stated her desire for the child to return to Germany. The court then concluded that even if that date was not legally supportable, their intentions on the child’s residence in the USA diverged as of this date. At the very least, the father testified at trial that he had no plans to return the child to Germany by December 31, 2025 (although he would let the court decide). This was the date in the original Consent Form signed by the parents that permitted the child’s travel to the USA. The court then looked at where the child was habitually resident in that timeframe - the timeframe of either November 2024 at the earliest or the date of the father’s trial testimony (presumably). The court concluded the child had connections to both countries, and both parents did well to integrate the child in both communities. But “[n]evertheless, her birth and four years in Germany outweigh the time she has spent in the United States. She is at home in Germany, and for that reason it is her state of habitual residence.”
The court finally examined whether the father proved, by a preponderance of the evidence, that the mother consented to the child’s relocation to the USA. The court concluded that the consent was, at most, until December 31, 2025, but was not an agreement to a permanent relocation. Therefore, the court rejected his consent argument. The child is ordered returned to Germany.
