In Radu v Shon, --- F.4th ----, 2021 WL 3883013 (9th Cir.,2021) Persephone Johnson Shon left her husband in Germany and removed her two minor children to Arizona, where they resided for the last two years. The district court found the repatriation of the minor children to Germany posed a grave risk of psychological harm if in the father’s custody. To alleviate that risk, the district court ordered that the children be transferred back to Germany in Shon’s custody until a German court made a custody determination. The Ninth Circuit vacated and remanded for the district court to reasonably ensure compliance with its alternative remedy in Germany.
Bodgan Radu, a dual citizen of Romania and the United States,
married Shon, a United States citizen, in 2011 in California. The couple has
two children, O.S.R. born in 2013 in the United States and M.S.R. born in 2016
in Germany. The couple initially lived and worked in the United States. In
December 2015, Radu traveled to Germany for a contractor job with the U.S.
State Department. In March 2016, Shon moved to Germany along with O.S.R. and
M.S.R. Shon, Radu, O.S.R., and M.S.R. lived together in Germany in an apartment
leased from Inge Frick-Wilden. Shon was a “full-time mom” while living with
Radu in Germany. Shon alleged that Radu abused her and the children after they
moved to Germany. According to Shon, Radu constantly yelled and screamed at her
about the messy apartment, put her down, and called her profanities. Shon did
not trust Radu’s parenting because “when he would rage and get angry and mean
... [h]e couldn’t control himself.” Shon provided examples of Radu’s rage and
anger. In June 2016, Shon unknowingly gave O.S.R. sour milk to drink. In
response, Radu allegedly slammed his hand on the table, threatened Shon, and
accused her of trying to poison their son. Janet Johnson, Shon’s mother,
witnessed the sour-milk incident and testified that Radu “exploded all over
[Shon] about being a terrible mother.” In October 2017, Shon tripped on a stool
and spilled broccoli across the floor. Radu allegedly screamed, yelled, and
called O.S.R. “bad names, calling him stupid for leaving the stool out” while
O.S.R. was “cowering.” In March 2018, while Shon was handling bath time for the
children, Radu allegedly flung the bathroom door open and slapped O.S.R. across
the face. Finally, during a potty-training incident, while Shon was teaching
M.S.R., Radu allegedly was “slamming against the door” and yelling for Shon to
get M.S.R. to stop crying. Throughout these events, Shon never contacted law
enforcement or sought a protective order or other legal remedy while living
with Radu. However, she testified that she “was terrified of [Radu]” and
“feared retaliation”—that is, he would hurt her or the children. In March 2019, after Radu allegedly sexually
assaulted Shon, she decided that she was not going to stay with Radu. On June
10, 2019, Shon flew one way to Arizona with both O.S.R. and M.S.R. Since Shon’s
departure, she and the children resided
in Arizona where she enrolled the children in school. Shon later filed for a
divorce in Arizona. Shon obtained counseling from a licensed psychotherapist,
approximately forty times. According to her, Shon exhibited symptoms of
posttraumatic stress disorder.
On June 8, 2020, Radu filed a Verified Petition for Return of
Children to Germany. The district court granted Radu’s Petition, ordering Shon
to return O.S.R. and M.S.R. to Germany.. The district court carefully
considered what type of remedy would safely allow the children to return to
Germany. To “mitigate th[e] risk of psychological harm” to the children, the
district court ordered an alternative remedy that “Shon shall retain temporary
custody and care of the children until a custody determination can be made by a
German court of competent jurisdiction.” The district court made several
findings. First, the district court found and Shon conceded that “Shon’s
removal of the children to the United States, and retention of them therein,
was wrongful within the meaning of Article 3 of the Convention.” Second, the
district court found that Article 12— “if less than one year has elapsed from
the date of the wrongful removal or retention and the commencement of the
proceedings” the children shall be returned—applied absent an exception.
However, the district court found an Article 13(b) exception applied because “the
children would be at grave risk of psychological harm if returned to Germany in
the custody of Radu.” The district court found the “evidence presented at the
evidentiary hearing supported a finding that Radu behaved in ways that could be
characterized as psychologically or emotionally abusive.” At the hearing, Radu
testified: “Probably in the heat of the passion, I may have called them [names]
a couple of times .... So, I do regret it, looking in perspective right now.
Maybe I should have used a different tone [of] voice or a different type of --
better approach in managing my children.” The district court found the
“evidence insufficient to show that O.S.R. and M.S.R. would be at grave risk of
physical harm if returned to Germany” and there was “no evidence of any sexual
abuse of the children. Shon appealed and the district court stayed its order
pending resolution of the appeal.
The Court
pointed out that Article 13(b) gives courts discretion not to return the
children if “there is a grave risk that [the child’s] return would expose the
child to physical or psychological harm or otherwise place the child in an
intolerable situation.” The Convention and ICARA “dictate that custody must be
determined by the home jurisdiction”—in this case, Germany—“unless the existence
of a ‘grave risk’ truly renders that impossible.” If a court decides that the
record supports an Article 13(b) defense, it “must proceed to consider whether
that risk can be minimized or eliminated through some alternative remedy.”
The Court
observed that its ,controlling precedent on alternative remedies is set forth
in Gaudin. 415 F.3d 1028. “[B]efore 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.” The
“question is simply whether any reasonable remedy can be forged that will permit
the children to be returned to their home jurisdiction for a custody
determination while avoiding the ‘grave risk of psychological harm’ that would
result from living with” the petitioning parent. It noted a few guidelines for
determining whether a grave risk of harm may be mitigated through an
alternative remedy: (1) the district court must consider the “effect of any
possible remedies in light of circumstances as they exist in the present”
meaning “whether a grave risk of harm now exists, and if so, whether
that risk can be minimized through an alternative remedy” and (2) the district
court must not be influenced by or accord weight to any existing custody
proceedings. If a district court makes an Article 13(b) grave-risk-of-harm
finding—as the district court did below—the alternative remedy must
significantly reduce, if not eliminate, the grave risk of harm to the children.
See Saada v. Golan, 930 F.3d 533, 541 (2d Cir. 2019) To that end, district courts need
to determine whether and how the alternative remedy is likely to be performed. An
alternative remedy evaluation in the context of an Article 13(b) finding must
consider whether the return remedy is more likely than not to reduce the
short-term risk of harm accompanying repatriation, thus protecting the child’s
psychological safety. A district court’s evidence-gathering cannot weigh
matters or apply measures treading on the ultimate custody determination—e.g.,
whether the children are better off with one parent or another. Nor should the
alternative remedy incorporate any long-term considerations or conditions that
conflict with the Convention and ICARA.
The Court held that the children’s interests, not the parents’
preference or inconvenience, are paramount to evaluating whether an alternative
remedy mitigates the grave risk of harm. Appropriate considerations
include the enforceability of the alternative remedy in the foreign
jurisdiction based on the availability of legal measures to mitigate the
child’s risk of harm, reliability of testimony indicating compliance with any
court orders or legal measures, as well as history of the parent’s
relationship, cooperation, and interpersonal communications. See Saada, 930 F.3d at 541–42. Any supportive reinforcements that may be
necessary should reflect these considerations. Accordingly, the district court
may solicit any promises, commitments, or other assurances to facilitate
repatriation, which may involve directing parents to arrange for legal measures
in the foreign jurisdiction—the children’s habitual residence. The district
court may need to review foreign law to evaluate the reach of that foreign
court’s authority in issuing legal measures or other relief in support of the
alternative remedy.
Radu
discussed German Code of Civil Procedure § 328 for its standards on enforcing
foreign judgments. The Court of Appeals found that an analysis of Germany’s
pertinent civil laws, and other aspects of its legal apparatus (processes,
procedures, and so forth) may inform whether the district court should direct
the parties to obtain protective measures abroad or confirm whether domestic
orders suffice. But given its limited authority abroad and potential comity
concerns, the district court should not make the order of return with an
alternative remedy contingent on the entry of an order by the children’s
country of habitual residence. The district court may also solicit
supplementary evidence, and in particular testimony, from the parents on these
or related issues to determine the nature of supportive reinforcements. In rare
circumstances, oral commitments from one parent to obey court orders may be
enough. Voluntary commitments
or agreements—those without third-party intervention—are acceptable depending
on the parties’ pattern of behavior and the severity of risk of harm to the
children (which must be low).
The Court of Appeals held that the district court should also, if needed, contact
the United States Department of State Office of Children’s Issues to coordinate
legal safeguards or otherwise procure assistance from the foreign jurisdiction
to address or resolve any issues animating the Article 13(b) grave risk of harm
finding. Citing Convention Art. 7 (listing measures available through Central
Authorities). Logistical
arrangements such as financing the return of the children or securing housing
or temporary placement should not undermine the alternative remedy. The options
are extensive, but this framework provides the guideposts for navigating the
provisions of the Convention and ICARA and creating a reasonable remedy for a
short-term period. The district court may also consider activity in the
children’s habitual residence, including criminal proceedings, if it could
significantly interfere with implementing the supportive reinforcements and
otherwise reduce the likelihood of performance. Supportive reinforcements
generally should be limited in scope and thus not extremely burdensome to
either party to avoid litigation over the merits of custody issues. Resolving
the parameters of safe repatriation of the children is paramount.
On appeal,
Radu did not properly challenge the district court’s finding that his children
would face a grave risk of psychological harm if returned to Germany. The focus
of the inquiry here was the alternative
remedy based on the district court’s findings. The Ninth Circuit vacated and
remanded the alternative remedy order since the record did not adequately
support whether the order of the children’s return in Shon’s custody had a high
likelihood of performance through supportive reinforcements.
Shon argued that the alternative remedy “is overbroad and exceeds
the scope of the lower court’s authority” because it required her to move to
Germany, “orders the children to remain” in her custody, and “implicitly
requires [her] to file a custody case in Germany and the German court to act on
it.” The Court held that the Convention presumes relocation of the children to
facilitate repatriation. If relocation of the abducting parent (or a
responsible family member) can help alleviate any grave risk of harm from
repatriation of the kids, the district court retains that discretion. The Court
held that because Shon wrongfully removed the children, as she conceded, the
district court in no way exceeded its authority to mandate the children’s
return to Germany accompanied by Shon. But in the context of an Article 13(b)
finding, the district court needed a fuller record to have sufficient
guarantees that the alternative remedy will be enforced in Germany. There are
multiple resources the district court may engage, including assistance via the
U.S. Department of State, to fulfill the Convention’s presumptive goal of the
speedy return of the children. That Germany is a treaty partner with the United
States already informs baseline expectations. It must respect that
another treaty partner—a contracting State to the Convention—is well-equipped
with the proper legal mechanisms and internal processes and procedures to
support alternative remedies and otherwise fulfill treaty obligations. An
Article 13(b) grave risk of psychological harm finding does not automatically
terminate further investigation into a reasonable alternative remedy.
