Recent Hague Convention District Court Cases - Radu, v. Shon, 2022 WL 4099225, (District Court, D. Arizona, 2022)

 

[Germany][Petition granted][Grave risk of Harm][Ameliorative measures]

 In  Radu, v. Shon, 2022 WL 4099225, (District Court, D. Arizona, 2022) on December 30, 2021, the Court granted Petitioner Bogdan Radu’s Petition for Return of Children to Germany. Respondent appealed and the Ninth Circuit Court of Appeals remanded for the Court to reconsider its ruling in light of Golan v. Saada, __ U.S. __, 142 S. Ct. 1880 (2022). The Court held a further evidentiary hearing and contacted the United States Department of State for assistance. On December 30, 2021, the Court again ordered Respondent to return O.S.R. and M.S.R. to Germany. The Court recognized that this is “a borderline case whether an Article 13(b) finding is warranted.” The Court further found that the alternative remedy of ordering Respondent to return with O.S.R. and M.S.R. to Germany would ameliorate the risk of psychological harm to O.S.R. and M.S.R. given the unique circumstances of this case, including Germany’s child protection services, the ability of a German court to prioritize child custody matters for expedited processing pursuant to Section 155 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction, Respondent’s joint custody rights under German law, Respondent’s ability to stay in Germany for at least three months, and Petitioner’s commitment to paying, if necessary, for the airfare of O.S.R. and M.S.R., as well as rent for a separate residence for Respondent and the children until a German court makes a custody determination. On June 15, 2022, the United States Supreme Court issued Golan, holding that “consideration of ameliorative measures” after an Article 13(b) finding is not required under the Convention but, rather, “is within a district court’s discretion.” 142 S. Ct. at 1893. The Supreme Court also clarified that a district court’s consideration of ameliorative measures (1) “must prioritize the child’s physical and psychological safety,” (2) must “not usurp the role of the court that will adjudicate the underlying custody dispute,” and (3) “must accord with the Convention’s requirement that the courts act expeditiously in proceedings for the return of children.” “[A] district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings.”  The Court, in its discretion, found that consideration of ameliorative measures was appropriate in this case,  and the ameliorative measure set forth in its December 30, 2021 Order—namely, that Respondent return with O.S.R. and M.S.R. to Germany—satisfied the requirements outlined in Golan.