[Germany][Grave risk of harm][Petition granted][ ameliorative measure]
In Radu
v Shon, 2023 WL 142908 (D. Arizona, 2023) on June 8,
2020, after an evidentiary hearing, the Court issued an Order on September 17,
2020, requiring Respondent Persephone Johnson Shon (“Respondent”) to return
minor children O.S.R. and M.S.R. to Germany. (Doc. 26.) Pursuant to Article
13(b) of the Convention, the Court found the children would face a grave risk
of psychological harm if returned to Germany in the custody of Petitioner and
therefore ordered, as an ameliorative measure, that the children be returned in
the temporary custody of Respondent. The Ninth Circuit vacated and remanded for
this Court to reasonably ensure compliance with its ameliorative measure. On
December 30, 2021, after a further evidentiary hearing, the Court again granted
the Petition and ordered the Respondent to return O.S.R. and M.S.R. to Germany.
The Court found that ordering the return of the children in the sole custody of
Respondent was not necessary to mitigate a grave risk of psychological harm and
that ordering Respondent to return with the children to Germany, where
Petitioner and Respondent have joint custody rights, was sufficient. Respondent
appealed the December 30, 2021 Order, and the Ninth Circuit remanded for
consideration of the recently decided United States Supreme Court case Golan v. Saada, __ U.S. __, 142 S. Ct. 1880 (2022), which
ruled that a court is not required to consider ameliorative measures upon an
Article 13(b) grave-risk finding. On remand, the Court found in its discretion
that consideration of ameliorative measures was appropriate in this case and
that the ameliorative measures as stated in its December 30, 2021 Order satisfy
the standards articulated in Golan. Respondent appealed (Doc. 114), and
the Ninth Circuit remanded on a limited basis for clarification of the
logistics of the children’s return.
The Ninth
Circuit directed the Court to address seven questions:(a) what, specifically,
is the district court’s current Article 13(b) grave-risk finding and
ameliorative measure(s), (b) whether Radu must pay for the children’s airfare, (c) whether Radu must pay for separate living
arrangements for the children and Shon, (d) what the custody arrangements for
the children will be (sole or joint) while Shon is temporarily residing in
Germany, (e) what the custody arrangements for the children will be if Shon is
no longer able to legally reside in Germany on a tourist visa before a German
court decides custody, (f) whether the parties should notify German child
protective services upon the children’s arrival in Germany, and (g) whether, if
necessary, German child protective services has jurisdiction to act in
overseeing the children’s wellbeing while they are present in Germany.
The Court clarified that its finding under Article 13(b) of the
Convention is that O.S.R. and M.S.R. would be at grave risk of psychological
harm if they were to return to Germany and remain in the sole custody of
Petitioner for an extended period. The Court did not find that the children
would be at grave risk of psychological harm if Petitioner and Respondent have
joint custody of them in Germany. Furthermore, the Court does not find that the
children would be at grave risk of psychological harm if Petitioner has sole
custody of them for a limited duration. Accordingly, the Court orders as an
ameliorative measure that Respondent return with O.S.R. and M.S.R. to Germany
and remain there on a tourist visa for 90 days, sharing joint custody of the
children with Petitioner in Germany while she remains there. Based on the
record evidence, the Court finds that a German court will likely be able to
make a custody determination within six months of the children’s arrival in
Germany. Therefore, even if Respondent departs Germany 90 days after the
children’s arrival, the children would remain in Germany in Petitioner’s
custody only for a limited duration. Furthermore, by that point, the children
will be re-acclimated to life in Germany and to the care of Petitioner. The respondent
may attempt to obtain a resident visa to stay with the children in Germany in a
joint-custody arrangement until a German court makes a final custody
determination. But even if Respondent leaves Germany after 90 days, and even if
a German court has not made a final custody determination by the time
Respondent departs, the Court finds that requiring Respondent to return with
O.S.R. and M.S.R. to Germany remains a sufficient ameliorative measure to
mitigate the borderline grave risk of psychological harm that exists in this
case.
The Court clarified that it finds Respondent to be capable of
paying for airfare for herself and the children to return to Germany.
Respondent has not shown that ordering her to pay for airfare to Germany is
clearly inappropriate. Accordingly, pursuant to 22 U.S.C. § 9007(b)(3), the Court
orders Respondent to bear the costs of transporting herself, O.S.R., and M.S.R.
back to Germany. However, the Court found that Respondent established that she
would likely have difficulty paying rent in Germany since she is eligible only
for unpaid leave from her job in Tucson, Arizona, and she would be staying on a
tourist visa in Germany without the ability to work there. Accordingly, the
Court ordered Petitioner to pay the costs for a separate residence for
Respondent, and the children when they are in Respondent’s care, to live in
while Respondent is in Germany, until a German court makes a final custody
determination or for 90 days, whichever time period is shorter.
The Court’s ameliorative measure requires the Respondent to return
with O.S.R. and M.S.R. to Germany. Once in Germany, Petitioner and Respondent
will have joint custody of the children pursuant to German law, until a German
court makes a custody determination. If Respondent’s tourist visa expires
before a German court makes a custody determination, and Respondent has been
unable to obtain a resident visa by that time, then Petitioner will have
custody of the children after Respondent departs and until a German court makes
a custody determination.
The Court declined to order Respondent to notify any agencies, as
it did not find such an order to be necessary under the circumstances. The
Court found that the existence of the German equivalent of child protective
services, jugendamt, was supported by the evidence of record and was
also an appropriate matter for judicial notice. The Court also found, based on
the record evidence, that there was no reason to doubt that Germany’s child
protective services would have the authority to ensure the children’s safety if
necessary while the children are living in Germany.
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