Radu v. Shon

• Court: District Court, D. Arizona
• Decided: September 17, 2020
• Docket: 4:20-cv-00246
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Bogdan Radu, No. CV-20-00246-TUC-RM

10 Petitioner, ORDER

11 v.

12 Persephone Johnson Shon,

13 Respondent. 14 15 Pending before the Court is Petitioner Bogdan Radu’s (“Radu”) Verified Petition 16 for Return of Children to Germany (“Petition”) (Doc. 1), brought pursuant to the Hague 17 Convention on the Civil Aspects of International Child Abduction (“the Convention”) 18 and its implementing legislation, the International Child Abduction Remedies Act 19 (“ICARA”), 42 U.S.C. § 9001, et seq. (formerly 42 U.S.C. § 11601, et seq.). Respondent 20 Persephone Johnson Shon (“Shon”) filed an Answer to the Petition (Doc. 12) on July 23, 21 2020. The Court took the matter under advisement following an evidentiary hearing held 22 on July 29, 2020 and August 26-27, 2020, during which the Court received exhibits into 23 evidence and heard the testimony of Radu, Shon, Inge Frick-Wilden (“Frick”), Janet 24 Johnson (“Johnson”), and Sherri Mikels-Romero. (Docs. 15, 22-25.) For the following 25 reasons, the Petition will be granted. 26 . . . . 27 . . . . 28 1 I. Background1 2 Radu and Shon were married in 2011 in the United States and are the parents of 3 two minor children, O.S.R., who was born in 2013 in the United States, and M.S.R., who 4 was born in 2016 in Germany. In December 2015, Radu moved from the United States to 5 Germany; Shon followed him to Germany in March 2016. From 2016 to 2019, Radu, 6 Shon, and their two minor children lived in an apartment in Germany that they leased 7 from landlords Inge and Hans Frick. The children were enrolled in school in Germany. 8 On June 10, 2019, Shon took O.S.R. and M.S.R. from Germany to the United 9 States. Since that date, Shon and the children have resided at Shon’s parents’ house in 10 Tucson, Arizona. On August 10, 2019, Shon sent Radu a message stating that the 11 children were enrolled in school in Arizona. On September 9, 2019, she filed a petition 12 for dissolution of marriage and a motion for temporary custody of O.S.R. and M.S.R. in 13 Pima County Superior Court case number D20192814; service has not been 14 accomplished in that case. On June 8, 2020, Radu filed the Petition in the above- 15 captioned action. 16 II. Discussion 17 In an action under the Convention for the return of a child, the petitioner has the 18 burden of establishing by a preponderance of the evidence “that the child has been 19 wrongfully removed or retained within the meaning of the Convention.” 22 U.S.C. § 20 9003(e)(1)(A).2 Under Article 3 of the Convention, the removal or retention of a child is

21 1 The facts discussed in this Order are drawn from unopposed portions of the parties’ pleadings as well as the evidence and testimony presented at the evidentiary 22 hearing. 2 Shon argues, as an initial matter, that the Convention does not apply because Radu 23 left Germany for Romania on or about November 19, 2019. (Doc. 12 ¶ 12.) The Court finds that the evidence sufficiently shows that Radu’s visit to Romania was temporary 24 and that travel restrictions caused by the COVID-19 pandemic contributed to the delay in his return to Germany. See Gaudin v. Remis, 379 F.3d 631, 636-37 (9th Cir. 2004) 25 (“Gaudin II”) (holding that domicile—which requires the intent to remain in a jurisdiction—is the appropriate measure of whether a petitioner has moved permanently 26 to a new jurisdiction for purposes of the Convention). The Court also notes that Shon’s position on this issue is not supported by the statute she cites (see Doc. 12 ¶ 12 (citing 22 27 U.S.C. § 9003(f)), and it is not clear to the Court whether the Convention continues to apply when a petitioner moves to a different country. See Gaudin v. Remis, 282 F.3d 28 1178, 1183 (9th Cir. 2002) (“Gaudin I”) (“We need not resolve the broad question of whether, or under what circumstances, a child should be returned to a petitioner’s new, 1 wrongful if “it is in breach of rights of custody attributed to a person . . . under the law of 2 the State in which the child was habitually resident immediately before the removal or 3 retention.” Shon concedes that, when she removed the children from Germany and 4 brought them to the United States, Germany was the children’s “state of habitual 5 residence” within the meaning of the Convention; she further concedes that, under 6 German law, she and Radu had joint rights to custody and control of the children. (Doc. 7 1 ¶¶ 2, 7; Doc. 12 ¶¶ 2, 7.) The Court finds that Shon’s removal of the children to the 8 United States, and retention of them therein, was wrongful within the meaning of Article 9 3 of the Convention. 10 Article 12 of the Convention provides that, if less than one year has elapsed from 11 the date of the wrongful removal or retention and the commencement of the proceedings, 12 the Court “shall order the return of the child forthwith,” unless an exception applies. 13 ICARA similarly provides that “[c]hildren who are wrongfully removed or retained 14 within the meaning of the Convention are to be promptly returned unless one of the 15 narrow exceptions set forth in the Convention applies.” 22 U.S.C. § 9001(a)(4). At the 16 evidentiary hearing, the Court found that the one-year period began to run on June 10, 17 2019, when Shon took the children from Germany to the United States, and that Radu 18 filed the pending Petition within one year of that date.3 Accordingly, the Court must 19 order the return of the children unless an exception applies. 20 Shon raises two affirmative defenses under Article 13 of the Convention. First, 21 she argues that Radu consented to or acquiesced in the removal of O.S.R. and M.S.R. 22 from Germany. (Doc. 12 ¶ 14.) Pursuant to Article 13(a) of the Convention, the Court is 23 not required to order the return of a child if the respondent establishes that the petitioner 24 “consented to or subsequently acquiesced in the removal or retention” of the child. The 25

26 post-abduction residence.”). 3 Article 12 of the Convention further provides that, even if the proceedings have 27 been commenced more than one year after the wrongful removal or retention, the Court must order the return of a child “unless it is demonstrated that the child is now settled in 28 its new environment.” The well-settled defense under Article 12 is not available to Shon because Radu filed the Petition within one year of the wrongful removal. 1 respondent bears the burden of establishing this defense by a preponderance of the 2 evidence. See 22 U.S.C. § 9003(e)(2)(B). The evidence and testimony presented at the 3 evidentiary hearing shows that, although Radu negotiated with Shon regarding custody of 4 the children and may have consented to Shon taking the children on a temporary visit to 5 the United States, Radu did not consent to Shon permanently moving the children to the 6 United States. Shon has not established a defense under Article 13(a) of the Convention. 7 Second, Shon argues that returning O.S.R. and M.S.R. to Germany would place 8 the children at grave risk of physical or psychological harm. (Doc. 12 ¶ 14.) Under 9 Article 13(b) of the Convention, the Court is not required to order the return of a child if 10 the respondent establishes that there is a “grave risk” that the child’s “return would 11 expose the child to physical or psychological harm or otherwise place the child in an 12 intolerable situation.” The respondent bears the burden of establishing the grave-risk 13 defense by clear and convincing evidence. See 22 U.S.C. § 9003(e)(2)(A). 14 The Convention does not extend to custody determinations; it is designed only “to 15 decide which country should make the custody determination.” Gaudin I, 282 F.3d at 16 1183 (emphasis in original). Accordingly, in evaluating the grave-harm exception, the 17 Court may not speculate on where the child would be happiest, Gaudin v. Remis, 415 18 F.3d 1028, 1035 (9th Cir. 2005) (“Gaudin III”), or who is a better parent, Blondin v. 19 Dubois, 189 F.3d 240, 246 (2d Cir. 1999) (“Blondin I”). The Court may decline to return 20 a child under the grave-risk exception only if the respondent establishes that “the child 21 would suffer serious abuse that is a great deal more than minimal” if returned. Gaudin 22 III, 415 F.3d at 1035 (internal quotation marks and citation omitted). The focus is not on 23 whether a living situation would be “capable of causing grave psychological harm over 24 the full course of a child’s development” but rather whether it is “likely to do so during 25 the period necessary to obtain a custody determination.” Id. at 1037. In addition, the 26 Court must consider “whether any reasonable remedy can be forged that will permit the 27 children to be returned to their home jurisdiction for a custody determination” while 28 avoiding grave risk of harm. Id. at 1036. 1 The evidence presented at the evidentiary hearing—including the testimony from 2 Shon, Frick, and Johnson, as well as from Radu himself—supports a finding that Radu 3 behaved in ways that could be characterized as psychologically or emotionally abusive.4 4 The record indicates that he had an explosive temper and that, when angry, he yelled at 5 Shon and the children and also used inappropriate, degrading, and/or derogatory 6 language. Shon, Frick, and Johnson each testified to being scared of Radu. 7 The evidence of physical abuse of the children is less significant than the evidence 8 of emotional or psychological abuse. Shon testified that Radu banged his fists on tables 9 and/or doors when angry, and that he threw objects, including a chair. She also testified 10 that he once slapped O.S.R. There is no evidence that Radu hit either of the minor 11 children in a manner that required medical attention, nor is there any evidence that Shon 12 or anyone else sought a protective order or filed any police reports concerning Radu’s 13 behavior toward the children. There is no evidence of any sexual abuse of the children. 14 The evidence is insufficient to show that O.S.R. and M.S.R. would be at grave risk 15 of physical harm if returned to Germany. However, the Court finds that the children 16 would be at grave risk of psychological harm if returned to Germany in the custody of 17 Radu. To mitigate this risk of psychological harm, the Court will order that O.S.R. and 18 M.S.R. be returned to Germany in the custody of Shon until a custody determination can 19 be made by a German court of competent jurisdiction. See Gaudin III, 415 F.3d at 1037 20 (suggesting that district court could require children to be returned in the care of the 21 abducting parent); cf. Blondin I, 189 F.3d at 249 (2d Cir. 1999) (suggesting return of

22 4 At the evidentiary hearing, the Court allowed Shon to present evidence that O.S.R. and M.S.R. are well settled in Tucson, relying upon Blondin v. Dubois, 238 F.3d 153, 164 23 (2d Cir. 2001) (“Blondin II”), which held that “the fact that a child is settled may form part of a broader analysis [under Article 13(b)] of whether repatriation will create a grave 24 risk of harm.” The record contains evidence that O.S.R. and M.S.R. have been attending the International School in Tucson and going to services at a Lutheran church, and that 25 O.S.R. has had four counseling sessions with a Tucson therapist since July 2020. Although the children’s lives will, unfortunately, be disrupted by their return to Germany, 26 it was Shon’s wrongful removal of them from Germany that is ultimately responsible for any disruption that occurs as a result of their return. See Cuellar v. Joyce, 596 F.3d 505, 27 511 (9th Cir. 2010). Because “it is the abduction that causes the pangs of subsequent return,” the Ninth Circuit has held that “[t]he fact that a child has grown accustomed to 28 her new home is never a valid concern under the grave risk exception.” Id. (internal quotation marks omitted; emphasis in original). 1 children in third party’s care). The Court will hold a further hearing upon request 2 concerning the logistics of the children’s return. 3 III. Expenses 4 Radu argues that he is entitled to reimbursement of his reasonable costs and fees 5 related to this matter. (Doc. 1 ¶ 11.) Article 26 of the Convention provides that, upon 6 ordering the return of a child, the Court “may, where appropriate, direct the person who 7 removed or retained the child . . . to pay necessary expenses incurred by or on behalf of 8 the applicant . . . .” Similarly, ICARA provides that a court ordering the return of a child 9 under the Convention “shall order the respondent to pay necessary expenses incurred by 10 the petitioner . . . unless the respondent establishes that such order would be clearly 11 inappropriate.” 22 U.S.C. § 9007(b)(3). The Court will take Radu’s request for 12 reimbursement of expenses under advisement pending additional briefing. 13 IT IS ORDERED that the Petition (Doc. 1) is granted. Respondent Persephone 14 Johnson Shon shall return the minor children O.S.R. and M.S.R. to Germany. To prevent 15 a grave risk of psychological harm, Shon shall retain temporary custody and care of the 16 children until a custody determination can be made by a German court of competent 17 jurisdiction. 18 IT IS FURTHER ORDERED that travel arrangements for returning the children 19 to Germany shall be made within thirty (30) days of the date this Order is filed. 20 . . . . 21 . . . . 22 . . . . 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS FURTHER ORDERED that, within twenty-one (21) days of the date this 2|| Order is filed, Petitioner Bogdan Radu may file a motion for an award of expenses which || addresses the propriety of such an award and lists the specific expenses for which Radu is 4|| seeking reimbursement. If a motion is filed, Respondent may file a response within 5 || fourteen (14) days of the filing of the motion. No reply will be permitted absent further || Order. 7 Dated this 16th day of September, 2020. 8 9 ff 10 a ph □□□ il —D L tigi □ □□ Honorable Rostsiary □□□□□□□ 12 United States District □□□□□ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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