Asumadu v Baffoe, --- Fed.Appx. ----, 2019 WL 1373306 (Mem) (9th Cir., 2019) [Canada] [Article 18] [petition granted]

In Asumadu v Baffoe, --- Fed.Appx. ----, 2019 WL 1373306 (Mem) (9th Cir., 2019) the district court ordered that the parties’ son, K.A.A., be returned to Mr. Asumadu in Canada, while allowing their daughter, A.K.A., to remain in the United States with Ms. Baffoe. Reviewing the district court’s factual findings for clear error, the Ninth Circuit affirmed. It found that the district court did not clearly err in finding that the parties had no “shared, settled intent” for Canada to become A.K.A.’s habitual residence. The district court, crediting Ms. Baffoe’s testimony that her move to Canada with A.K.A. was intended as a trial period to determine whether Mr. Asumadu would continue to abuse her, found that “there was never a shared intent for A.K.A. to live anywhere other than with [Ms.] Baffoe.” It also found that the district court did not clearly err in finding that the parties did have a “shared, settled intent” for Canada to become K.A.A.’s habitual residence. Murphy, 764 F.3d at 1150. It did not decide whether the district court erred in not excusing—due to Ghanaian cultural norms—Ms. Baffoe’s failure to use legal processes to ensure K.A.A.’s return to the United States, because it relied on other evidence too in reaching its determination about the parties’ intent.  The Court declined to decide whether or under what circumstances abuse of a spouse may create a grave risk of harm to the spouse’s child because A.K.A. was to remain in the United States with Ms. Baffoe while K.A.A. would return to Canada with Mr. Asumadu. Ms. Baffoe indicated that she did not otherwise plan to return to Canada—given the parties will not be living together, there was no risk of spousal abuse or resulting harm to the children. Lastly, it held that the district court did not abuse its discretion by not implementing Article 18 of the Hague Convention to order A.K.A.’s return to Canada. Such a decision is discretionary, and the record did not show that equitable considerations required such a return. See In re B. Del C.S.B., 559 F.3d 999, 1015 (9th Cir. 2009) (“We decline to remand the case to the District Court for a discretionary determination under Article 18 as to whether Brianna should be returned to Mexico.”).