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Thursday, September 2, 2021

Radu v Shon, --- F.4th ----, 2021 WL 3883013 (9th Cir.,2021) [Germany] [Grave risk of harm] [Petition granted] [Undertakings][Alternative remedy]

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.