In West v Dobrev, 2013 WL 5813749 (10th Cir, 2013) Petitioner West, a lawyer, was a citizen of Romania and the United States. Respondent Dobrev, a college professor, was a citizen of Bulgaria and the United States. The two were married in 2003 in Chicago, Illinois. They had two children, a female born January 27, 2004 and a male born January 12, 2006, both citizens of the United States. In June 2008, the couple and their children moved to Fontainbleau, France after Respondent accepted a teaching position at a local university. In May 2009, Petitioner filed for divorce in "Fontainbleau Departmental Court." In an interim order dated October 2009, the French court ordered the children to "remain in the usual home of the mother," and Respondent to pay for their support. Respondent left his position with the local university in early February 2010. Respondent, contrary to the court’s order, ceased support payments. In May 2010, Respondent accepted employment as a professor at the University of Utah in Salt Lake City, but did not resume payments. In March 2010, Petitioner asked the French court for permission to move to Brussels, Belgium. Petitioner represented that "without resources, and after having searched in vain for employment in the U.S., she had to expand her search and ... found a job at the European Commission in [Brussels] Belgium." Respondent objected to Petitioner’s request. In a second interim order dated June 2010, the court "[a]uthorized the mother to move to Brussels as long as she notifie[d] her husband at least 15 days before leaving France." The court ordered the children to remain in the primary physical custody of their mother. Petitioner and her children moved to Brussels in August 2010. In the French proceeding, Respondent raised numerous arguments as to why the court should award him physical custody of the children. Respondent never argued that Petitioner abused the children, physically or psychologically. One of Respondent’s principal arguments was Petitioner hid her intention to move to Brussels with the children "where she prevents him from seeing his children." The French court was unpersuaded and in its final decree found:
Ms. West did not hide anything and ... took the precaution of obtaining [the] court’s authorization before moving. Such authorization was given by the decision of June 2, 2010....* * * Mr. Dobrev does not prove that the mother prevented him from seeing his children.... [T]he exchange of emails between the spouses submitted as evidence took back [Mr. Dobrev’s] initial consent of having the children enrolled at the European School in Brussels, indicating that he had enrolled the children instead at a school in the United States, and threatened the mother to bring them back to the United States. The French court found upon all the facts presented that the divorce was the "exclusive fault of Mr. Dobrev," and "in the context of joint exercising of parental authority [i.e., joint custody] the usual home of the children must be maintained at their mother’s home." At no time did Respondent appear to have contested the French court’s jurisdiction to adjudicate the matter of the children’s custody. On July 24, 2012, four weeks after entry of the decree, Respondent waived his right to appeal, thereby finalizing the decree and terminating the French proceeding.
Prior to waiving his right to appeal, Respondent picked up the children on July 11 and brought them to the United States to vacation consistent with the terms of the final decree. The children were scheduled to return to Belgium on August 12, 2012, but did not return. Instead, on August 8, Respondent filed suit in Utah state court for "Emergency Jurisdiction and Custody." Respondent asked the state court to award him temporary custody of the children for the reason that if they were returned to their mother in Belgium "such a return would pose a grave risk of physical and psychological harm to each child or otherwise place each child in an intolerable situation, as contemplated by Article 13(b) of the Hague Convention." In his state suit, Respondent alleged for the first time that "[d]uring the years the parties were married and during the time [Ms. West] and the children lived in France and Belgium, [he] has been concerned about [her] treatment of the children."
On August 23, 2012 Petitioner petitioned the Utah federal district court for return of the children. Petitioner included with her petition a letter from the director of the children’s elementary school in Brussels containing favorable comments from the children’s teachers; the older child’s school records showing average or above average marks; and a letter from a neighbor tenant in Brussels containing favorable comments about the family. A few days prior, the State Department notified the Utah state court that Petitioner also had submitted an administrative application for return of the children pursuant to Article 8 of the Convention. That application stayed the state court proceeding pursuant to Article 16.
Respondent answered Petitioner’s federal suit by again disputing many of the facts found in the French court’s final decree. He denied he wrongfully retained the children from their residence in Belgium. Respondent again asserted, this time as an affirmative defense, that he properly retained the children under Article 13(b) of the Convention because they faced a grave risk of harm if returned to their mother. Respondent submitted a letter from a clinical psychologist whom he hired to interview the children after they reportedly expressed dissatisfaction with their current living arrangement in Belgium. According to the psychologist’s letter, Petitioner reportedly (1) had little time for the children, (2) disciplined the children by slapping them, pulling their hair, and spanking them, and (3) failed to provide them adequate medical or hygienic care. On one unspecified occasion, Petitioner reportedly pushed her daughter down after chasing and catching her. The letter concluded: "It is strongly suggested that the children’s current living situation be investigated and that the children continue to receive therapy." Respondent asked "the court to appoint an additional therapist to evaluate both the children and determine if there has been abuse and, if so, what kind, how serious, and does it justify retention."
Six days after the federal petition’s filing, the district court held a preliminary hearing during which it raised questions about the need for an evidentiary hearing. Respondent’s attorney told the court that the psychologist who had interviewed the children would not testify at an evidentiary hearing due to ethical considerations: "I would like to develop the case so I can present it to you, but I need another psychologist appointed and Ms. West directed to cooperate with that. That is the best way of finding out if there is not any abuse, because if she cooperates, and I am sure she is going to deny [the abuse], then we have [a psychologist] that is presenting here is what the children have said and here is what [Ms. West] said, and my opinion as a psychologist is there is abuse or there is not abuse. "
The district court expressed frustration with Respondent’s position: During the preliminary hearing the district court never stated it would hold an evidentiary hearing. And Respondent never suggested due process required an evidentiary hearing. Rather, Respondent claimed only that the evidence before the court was sufficient to warrant further inquiry. At one point the court stated: "Let me review what [the parties] have submitted and then decide whether there is enough to have a hearing on the matter of abuse." A week later the district court decided no evidentiary hearing was necessary. The court issued a brief written decision summarily granting the petition and ordering Respondent to "immediately" return the children to Petitioner "for their safe return with her to Belgium." The court identified the question presented as whether Respondent had shown as required by Article 13(b) of the Convention "a grave risk the children will be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if they are returned to Belgium." The court answered "no." The court explained that, "even on its face," the evidence of abuse Respondent presented, in particular, the uncorroborated letter of the clinical psychologist (aside from his own allegations), "is far from demonstrating a ‘grave risk’ that a return to Belgium will expose the children to physical or psychological harm or otherwise place them in an intolerable situation." A few days later the court ordered Respondent to pay Petitioner’s fees, costs, and expenses pursuant to ICARA, 42 U.S .C. § 11607(b)(3).
The Tenth Circuit affirmed. It observed that consistent with the aims of the Convention, Article 11 of the Convention provides "[t]he judicial ... authorities of Contracting States shall act expeditiously in proceedings for the return of children." Article 18 adds the provisions of the Convention "do not limit the power of a judicial ... authority to order the return of the child at any time. This means a district court has a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA. Neither the Convention nor ICARA, nor any other law including the Due Process Clause, requires that discovery be allowed or that an evidentiary hearing be conducted" as a matter of right in cases arising under the Convention. If the circumstances warrant, both the Convention and ICARA provide the district court with "the authority to resolve these cases without resorting to a ... plenary evidentiary hearing."
On appeal, Respondent claimed he was denied due process because the district court provided him no opportunity to challenge its finding that Belgium was the "habitual residence" of the children. The Court of Appeals pointed out that at the preliminary hearing, however, Respondent never challenged any element of Petitioner’s prima facie case as alleged in her petition—although he had ample opportunity to do so. Perhaps this was because Respondent admitted in his response to the petition the Petitioner’s allegations established a prima facie case for return of the children. In ¶ 22, Petitioner alleged: At the time of the children’s wrongful removal and retention ... Petitioner was actually exercising custody rights within the meaning of Articles Three and Five of the Convention, in that she is the biological mother of the children and has exercised custody rights over her children since they were born, and she was awarded joint physical custody, joint legal custody, and primary physical custody of the children pursuant to the [French] Decree. Furthermore, the Children were habitually residents of Belgium within the meaning of Article 3 of the Convention since their move to Belgium in August 2010. Respondent "[a]dmit[s] the allegations of ¶ 22 of the petition except that the actions of Respondent are not wrongful but fully in accord with the provisions of Article 13(b) of the Convention." Thus, Respondent’s belated claim that he was entitled to an evidentiary hearing to challenge Petitioner’s prima face case was meritless.
The Tenth Circuit pointed out that because Petitioner alleged a prima facie case for return of the children under Article 3 of the Convention and Respondent did not deny those allegations, the burden shifted to him to establish one of the affirmative defenses or "narrow exceptions set forth in the Convention." The Court was concerned only with the exception contained in Article 13(b): A court is not bound to return a child wrongfully retained or removed if the respondent establishes "by clear and convincing evidence," 42 U.S.C. § 11603(e)(2)(A), that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. "Grave risk" means the "potential harm to the child must be severe, and the level of risk and danger ... very high." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013). The Court held that whatever one must show to establish a "grave risk" to a child under Article 13(b) Respondent did not make that showing before the district court "by clear and convincing evidence."
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