Case Update (4 Sept 2026): Guenther v. McPherson; child ordered returned to Germany from Florida
The parties are parents of one child, born on February 16, 2021 in Florida. In June 2022, Respondent and Child went to Germany to visit Petitioner. While there, the parties went to a German notary and executed a joint custody document. Respondent spoke limited German, the notary did not speak English, but the parties translated the document to English using Google translate, and Respondent read each part of the document (“except for potentially the last paragraph”) in English before signing. At the end of this visit, Respondent and child returned to Respondent’s Mother’s home in Florida, but around November 2023, moved to Germany. They initially lived with Petitioner until July 2024, and then Respondent and child moved to her own apartment nearby (with a lease term ending June 2025). The Court concluded that the Respondent was the child’s primary caretaker, and spent significant, albeit less, time with Petitioner. The child was in kindergarten, made several friends, and spoke in both German and English. In or around April/May 2025, the Respondent advised Petitioner she wanted to return to the USA. Respondent then subsequently initiated German court proceedings regarding the child’s residence. On June 22, 2025, the Hannover Local Court transferred the right to determine residence to the Petitioner (the order was ultimately affirmed on appeal). The Respondent apparently learned of this order on June 24, 2025. On June 25, 2025, the Respondent and child left Germany and traveled first to New York and then Florida. On September 12, 2025, the Petitioner filed this lawsuit. The Respondent argued three issues: (1) habitual residence, (2) custody rights under German law, and (3) the grave risk of harm defense.
As for habitual residence, the Respondent argued that the parties only agreed to a short-term stay of 18 months for the child in Germany, but the court found the Respondent lacking in credibility, and further argued, based on Monasky, that parental agreement is not necessary for habitual residence. The child was “at home” in Germany - school, friends, and (or, so the court found) no end date by which she would return to the USA.
As for Petitioner’s rights of custody under German law, Respondent argued that the parties’ joint custody agreement was invalid because the notarization process failed to comply with German law. Having said that, the court concluded that the June 22, 2025 order, issued three days before the Respondent departed Germany, gave Petitioner a right of custody - the right to determine the child’s residence. The Respondent argued that the court, when it entered that June 22 order, relied on a wrong assumption - a “valid” joint custody agreement that was invalid. The Hague court, however, stated it “cannot conclude on the record before it that the German court would not have awarded Petitioner the right to determine [the child’s] residence without the existence of the joint custody declaration.”
Finally, Respondent argued the child would be exposed to a grave risk of harm if returned, arguing cumulative post-return circumstances: alleged prior aggression and threats, her difficulty in obtaining assistance in Germany (a prior abandoned complaint to German police), an outstanding arrest warrant and resulting uncertainty regarding her ability to maintain continuous access, the completed German proceeding, the child’s young age and psychological symptoms, and the potential longer term consequences of disruption with an established caregiver. The court was not persuaded. The child had been represented by a GAL in Germany, who also testified, and who the court found credible in regard to the child’s maturity and the Petitioner’s parenting relationship with the child.
The court ordered the return of the child to Germany.
