U.S. Court of Appeals for the Ninth Circuit, Radu v. Johnson Shon, Docket No. 22-16316

International Child Abduction

 

New Evidentiary Hearing

 

Ameliorative Measures

 

Pending Criminal Charges

 

Hague Convention on the Civil Aspects of International Child Abduction (Convention), Oct. 25, 1980, T.I.A.S. No. 11670

 

 

 

 

Domestically, the International Child Abduction Remedies Act (ICARA) implements the Convention’s rules, creates the United States Central Authority, and gives our courts jurisdiction to adjudicate disputes under the Convention. 22 U.S.C. § 9001 et seq.

 

 

Gaudin v. Remis made the consideration of ameliorative measures mandatory. See 415 F.3d 1028, 1035 (9th Cir. 2005) (“Courts applying ICARA have consistently held that, before denying the return of a child because of a grave risk of harm, a court must consider alternative remedies that would allow both the return of the children to their home country and their protection from harm.” (internal quotation marks and citation omitted)).

 

 

(…) The district court then contacted the State Department, Office of Children’s Issues’ country officer for Germany, who contacted the German Central Authority for the court.

 

 

(…) Shon again appealed. We stayed the appeal pending the Supreme Court’s resolution of Golan and eventually remanded for reconsideration in light of Golan’s clarification that consideration of ameliorative measures is discretionary rather than mandatory. See 142 S. Ct. at 1892–93.

 

 

The present appeal arises from the third return order. Given the parties’ uncertainty about aspects of the ordered remedy, and unresolved logistical issues, we ordered a limited remand while retaining jurisdiction to avoid further delay. See Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146, 1150 (9th Cir. 2006) (ordering “a limited remand to the district court”). We directed the district court to clarify (1) its current Article 13(b) grave-risk finding and ameliorative measure(s) ordered, (2) whether Radu must pay for airfare, (3) whether Radu must pay for separate living arrangements, (4) the custody arrangements (sole or joint) while Shon was temporarily residing in Germany, (5) the custody arrangements if Shon is no longer able to legally reside in Germany before a German court decides custody, (6) the need to notify German child protective services upon the children’s arrival, and (7) whether, if necessary, German child protective services have jurisdiction to oversee the children’s wellbeing.

 

 

(…) Any categorical rule requiring new hearings would contravene the Convention’s directive for expeditious resolution.

 

 

(…) Our sister circuits agree. In March v. Levine, the question presented was whether the district court improperly granted summary judgment to a father petitioning for his children’s return without allowing discovery or a hearing on the merits. See 249 F.3d 462, 468 (6th Cir. 2001). The Sixth Circuit affirmed. Recognizing that Convention cases are unique, the court explained that “neither [the Convention nor ICARA] expressly requires a hearing or discovery”; instead they require “expeditious action.” Id. at 474. The court also found persuasive that “courts in other Contracting States to the treaty have also upheld summary proceedings on review.” Id. at 475 (discussing Australian court proceedings). The Tenth Circuit reached the same conclusion in West v. Dobrev, reasoning that Article 18’s permission to order return at any time provides trial courts “a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA.” 735 F.3d 921, 929 (10th Cir. 2013).

 

 

We now hold that, in cases governed by the Convention, the district court has discretion as to whether to conduct an evidentiary hearing following remand and must exercise that discretion consistent with the Convention. The district court did not abuse its discretion in declining to hold a third evidentiary hearing when the factual record was fully developed.

 

 

(…) “While a district court has no obligation under the Convention to consider ameliorative measures that have not been raised by the parties, it ordinarily should address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case . . . .” Golan, 142 S. Ct. at 1893.

 

 

(…) The record supports the district court’s determination that the time frame in which a German court would determine custody would be a few months rather than years. The district court found that a merits decision would be made within months. Radu, 2023 WL 142908, at *2. Shon’s German law expert’s testimony supports this finding. He testified that a German court would likely require the children to live in Germany for up to six months before determining custody but that the court would also have discretion to make an earlier decision. And the district court cited a German statute providing that the determination of custody issues “shall have priority” and “shall be handled in an expedited manner.” That the waiting period is likely to be months instead of years is supported by the record.

 

 

(…) Third, based on the lack of any evidence or testimony about pending criminal charges in Germany, the court drew the supported inference that none existed.

 

 

 

 

 

(U.S. Court of Appeals for the Ninth Circuit, March 13, 2023, Radu v. Johnson Shon, Docket No. 22-16316, for Publication)