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ZAUBI v. HOEJME

November 17, 1980

Thomas ZAUBI, a minor child, and Kirstine Inez Zaubi, a minor child, by their Guardian ad litem, Mary Torok, Plaintiffs,
v.
Marianne HOEJME, and any and all authorized representatives as may be designated by her, Defendants



The opinion of the court was delivered by: TEITELBAUM

The instant action has been brought on behalf of two minor children by their guardian ad litem in an effort to vindicate the claimed right of the children, as United States citizens, to live within the United States and enjoy the protection of its laws. The Court is satisfied that it has jurisdiction in this case.

While this litigation is the first in which the children have been made formal parties, the parents of these two innocents have ceaselessly been engaged in judicial and extrajudicial efforts to obtain the right of custody and actual custody of the children. These efforts were recently the subject of two Pennsylvania appellate court decisions of which this Court takes judicial notice. The Court takes the liberty of quoting from the statement of facts in the Superior Court opinion to provide some background.

 
Appellant, Marianne Hoejme, is a native of Denmark. She met Thomas Zaubi, Sr., a native of Nemacolin, Pennsylvania, while the latter was serving with the U. S. Air Force in Europe. The couple were married on May 9, 1968. Following Thomas Sr."s discharge they took up residence first in Denver, Colorado, and then Canonsburg, Pennsylvania, where their first child, Thomas Jr., was born July 29, 1970. Two months after his birth, the Zaubis took their son and moved to Copenhagen, Denmark, where Thomas Sr. found employment with IBM and Marianne with a hospital as a nurse. A second child, daughter Kirstine Inez, was born in Copenhagen on November 2, 1973.
 
In December 1974, the Zaubis returned to Nemacolin, Pennsylvania, to spend the holidays, planning to return to Denmark in January 1975. On December 29, 1974, Thomas Sr. told his wife that he would not return to Denmark and would not permit the children to return either; but that Mrs. Zaubi could stay with the family or return to Denmark as she pleased. Mr. Zaubi had not given his employer, IBM, notice of his intentions and was unemployed until March 1975 when he was again hired by IBM, this time to work in Cleveland, Ohio. Meantime, Mrs. Zaubi traveled to Denmark to close their apartment and then returned to Nemacolin with the family clothes and the children's toys.
 
In April 1975, approximately one month after the family moved to Cleveland, appellant took her children, without the consent of her husband, back with her to Copenhagen, where she took up temporary residence with her parents. On April 8, 1975, appellant secured an Order from a Danish court giving her temporary custody of her children. Appellant subsequently moved into an apartment and regained her previous position as nurse.
 
Soon after Thomas Sr. returned to Copenhagen, again as an employee of IBM. He brought suit in the Danish courts to get custody of his children. Mr. Zaubi was represented by counsel and informed the court that his knowledge of spoken Danish was sufficient that the services of an interpreter would not be required. On November 26, 1975, after several hearings, custody was granted in favor of appellant with limited visitation rights to Mr. Zaubi. Visitation was initially restricted to the appellant's apartment for fear that if left alone with the children Mr. Zaubi would take them outside Denmark.
 
Thomas Sr. filed an appeal with the High Court of Denmark, the final appellate court, and a hearing was conducted. On April 13, 1976 the Court entered an order affirming the lower court.
 
On April 6, 1977, appellant secured the naturalization of both children. On June 15, 1977, Thomas Sr. also became a naturalized Danish citizen. On June 16, 1977, appellant received a final divorce decree from Thomas Zaubi Sr. At this time Mr. Zaubi was able to again appeal his case for custody of the children to the High Court of Denmark and another hearing was scheduled for November 17, 1977. On August 30, 1977, while the children were in his care during a visitation period, and while his custody appeal was pending, Mr. Zaubi fled with the children back to the United States. As a result of this act Mr. Zaubi has been charged with kidnapping by the Danish authorities and a warrant for his arrest awaits him should he attempt to return to Denmark.
 
Upon his return to the United States, Mr. Zaubi shuffled the children between Cleveland and Nemacolin, apparently in an attempt to conceal their whereabouts from appellant. They were not enrolled in school during this time and were kept under close surveillance by their father's family.
 
Appellant, after considerable searching, learned that the children were in Nemacolin in May 1978, and on May 15, 1978 filed a Petition for a Writ of Habeas Corpus in the Court of Common Pleas of Greene County. A hearing was scheduled for May 18, 1978 and service was effected on the Zaubi family in Nemacolin. Following a delay caused by Mr. Zaubi's flight from the jurisdiction of the lower court with the children remedied by a contempt citation against the (paternal) grandparents, a full hearing was held on June 20 and 21, 1978 with all parties present.
 
The court below decided that although the Pennsylvania Uniform Child Custody Act of June 30, 1977 (P.L. 29, No. 20, sec. 1 et seq., effective July 1, 1977, 11 P.S. §§ 2301-25), (the Act), compelled it to give full faith and credit to the Danish decree, the court was "duty bound" to consider whether such decree was in the children's best interest, and to modify the same if necessary for the child's best interest.
 
The court used its discretion to award custody to appellee based on the threat of potential sexual abuse by the Danish grandfather, who had sexually abused appellant, his daughter, during her childhood. The court also noted that to return the children to Denmark would alienate them from their father, who faces kidnapping charges in that country. *fn1" Commonwealth ex rel Zaubi v. Zaubi, 275 Pa. Super. 294, 418 A.2d 729 (Pa.Super.1980).
 
To this fine summary of events, this Court need only add that the Superior Court held that the Danish decree was entitled to full faith and credit and that because Mr. Zaubi could not demonstrate that any physical or emotional harm would befall the children, the Pennsylvania Courts would decline to exercise their jurisdiction. The Court emphasized that the guiding light in a child custody case was the children's best interest, and that best interest required that the entire matter of child custody be litigated in the jurisdiction of the child home, absent a showing of changed circumstances. Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa. Super. 294, 418 A.2d 729 (Pa.Super.1980). That decision was recently affirmed by the Pennsylvania Supreme Court. Commonwealth ex rel. Zaubi v. Zaubi, 492 Pa. 183, 423 A.2d 333 (Pa.1980).
 
The instant action was brought on November 3, 1980, on behalf of the children to enjoin Ms. Hoejme from removing the children from the United States as contemplated by the award of custody in violation of their constitutional rights. A preliminary dispute is whether or not the children are indeed citizens of the United States. Thomas Jr. was born in the United States. At that time he was a United States citizen. 8 U.S.C.A. § 1401(a). *fn2" Kirstine Inez was born in Copenhagen, Denmark and would be a citizen at birth pursuant to 8 U.S.C.A. § 1401(g). *fn3" Thereafter, both children were naturalized in Denmark. This naturalization could not affect the citizenship of the children under United States law. Only by a voluntary act of expatriation may the citizen's relationship with the state be terminated. Afroyim v. Rusk, 387 U.S. 253, 87 S. Ct. 1660, 18 L. Ed. 2d 757 (1967). The ...

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