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Tuesday, February 8, 2022

Recent Hague Convention District Court Cases - Radu v Shon, 2021 WL 6197905 ( D. Arizona, 2021)

 [Germany] [Grave risk of harm] [ameliorative measures] [Petition granted]

In Radu v Shon, 2021 WL 6197905 ( D. Arizona, 2021) on June 8, 2020, Petitioner Bogdan Radu filed a Petition for Return of Children to Germany. The Court held an evidentiary and issued an Order granting the Petition and ordering the return of minor children O.S.R. and M.S.R. to Germany. The Court found, under Article 13(b) of the Convention, that the children would be at grave risk of psychological harm if returned to Germany in the custody of Radu, but it further found that such harm could be mitigated by ordering that the children be returned in the temporary custody of Respondent Persephone Johnson Shon. On August 31, 2021, the Ninth Circuit held that the Order “is permissible under the Convention,” but it vacated and remanded for the district Court “to reasonably ensure compliance with its alternative remedy in Germany.” Radu v. Shon, 11 F.4th 1080, 1084 (9th Cir. 2021). The Court held a further evidentiary hearing and  also contacted the United States Department of State for assistance. The testimony at the post-remand evidentiary hearing, as well as the information obtained by the Court from the German Central Authority, established that, under German law, Shon and Radu currently had joint custody rights, and a German court would be able to make a custody determination within six months of the return of O.S.R. and M.S.R., with the court having discretion to make such a determination earlier, and with custody matters receiving priority for expedited processing. At a minimum, Shon was able to return to Germany for three months as a tourist. Furthermore, it was likely Shon’s parents would be willing to travel to Germany as tourists to assist as necessary with the caregiving of O.S.R. and M.S.R., given their history of consistently providing as-needed support to Shon and the children. Accordingly, Shon, followed by her parents if necessary, would be capable of staying in Germany until a custody determination could be made by a German court of competent jurisdiction. Even if a German court declines to make a custody determination until O.S.R. and M.S.R. have resided in Germany for six months, and even if Shon’s parents decline to travel to Germany, Shon’s ability to stay with the children in Germany with joint custody rights for the first three months would help the children transition back to German society and to the care of their father. The Court found  that ordering Shon to return with O.S.R. and M.S.R. to Germany where she and Radu had joint custody rights was sufficient to ameliorative any risk of psychological harm to the children. The petition was granted.

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