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 On December 1, 2022, the Ninth Circuit Court of Appeals remanded the above- 16 captioned case to this Court on a limited basis for purposes of clarification of this Court’s 17 Orders requiring the return of minors O.S.R. and M.S.R. to Germany. (Doc. 121.) 18 I. Procedural Background 19 On June 8, 2020, Petitioner Bogdan Radu (“Petitioner”) filed a Petition pursuant to 20 the Hague Convention on the Civil Aspects of International Child Abduction (“the 21 Convention”) and its implementing legislation, the International Child Abduction 22 Remedies Act (“ICARA”). (Doc. 1.) After an evidentiary hearing, this Court issued an 23 Order on September 17, 2020 requiring Respondent Persephone Johnson Shon 24 (“Respondent”) to return minor children O.S.R. and M.S.R. to Germany. (Doc. 26.) 25 Pursuant to Article 13(b) of the Convention, the Court found the children would face a 26 grave risk of psychological harm if returned to Germany in the custody of Petitioner and 27 therefore ordered, as an ameliorative measure, that the children be returned in the 28 temporary custody of Respondent. (Id. at 5-6). 1 The Ninth Circuit vacated and remanded for this Court to reasonably ensure 2 compliance with its ameliorative measure. (Doc. 51-1.) On December 30, 2021, after a 3 further evidentiary hearing, this Court again granted the Petition and ordered Respondent 4 to return O.S.R. and M.S.R. to Germany. (Doc. 77.) The Court found that ordering the 5 return of the children in the sole custody of Respondent was not necessary to mitigate a 6 grave risk of psychological harm and that ordering Respondent to return with the children 7 to Germany, where Petitioner and Respondent have joint custody rights, was sufficient. 8 (Id. at 6-7.) The Court further found that Respondent would be able to stay in Germany for 9 up to 90 days as a tourist and that Petitioner, if necessary, would commit to purchasing the 10 airfare for O.S.R. and M.S.R.’s return to Germany and to paying rent for a separate 11 residence in Germany for Respondent and the children to live in until a German court 12 makes a custody determination. (Id. at 7-8.) 13 Respondent appealed the December 30, 2021 Order, and the Ninth Circuit remanded 14 for consideration of the recently decided United States Supreme Court case Golan v. Saada, 15 __ U.S. __, 142 S. Ct. 1880 (2022), which ruled that a court is not required to consider 16 ameliorative measures upon an Article 13(b) grave-risk finding. (Doc. 99.) On remand, this 17 Court found in its discretion that consideration of ameliorative measures was appropriate 18 in this case and that the ameliorative measures as stated in its December 30, 2021 Order 19 satisfy the standards articulated in Golan. (Doc. 112.) Respondent appealed (Doc. 114), 20 and the Ninth Circuit remanded on a limited basis for clarification of the logistics of the 21 children’s return (Doc. 121). 22 II. Limited Remand 23 The Ninth Circuit has directed this Court to address seven questions: 24 (a) what, specifically, is the district court’s current Article 13(b) grave-risk finding 25 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 26 Shon, (d) what the custody arrangements for the children will be (sole or joint) while 27 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 28 visa before a German court decides custody, (f) whether the parties should notify 1 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 2 overseeing the children’s wellbeing while they are present in Germany. 3 (Doc. 121.) 4 A. Article 13(b) Grave-Risk Finding and Ameliorative Measures 5 Under Article 13(b) of the Convention, a court is not required to return a child if 6 “there is a grave risk that his or her return would expose the child to physical or 7 psychological harm . . .” The respondent must establish a grave-risk defense by clear and 8 convincing evidence. 22 U.S.C. § 9003(e)(2)(A). 9 The Court’s initial September 17, 2020 Order found that O.S.R. and M.S.R. would 10 face a grave risk of psychological harm if returned to Germany in the custody of Petitioner. 11 (Doc. 26 at 5.) The Court later clarified that its grave-risk finding was limited to a situation 12 in which the children were returned in Petitioner’s sole custody. (Doc. 77 at 6-7.) The Court 13 also noted that the grave-risk finding in its September 17, 2020 Order considered the risk 14 of harm over a time period longer than the one likely at issue in this case. (Id. at 7.) The 15 Court had considered the risk of harm to the children over years given Petitioner’s 16 parenting style. However, it is likely that a German court would be able to make a custody 17 determination within months. See Gaudin v. Remis, 415 F.3d 1028, 1037 (9th Cir. 2005), 18 abrogated on other grounds by Golan, 142 S. Ct. 1880 (grave-risk finding should be based 19 only on time period necessary to obtain custody determination). 20 The Court now clarifies that its finding under Article 13(b) of the Convention is that 21 O.S.R. and M.S.R. would be at grave risk of psychological harm if they were to return to 22 Germany and remain in the sole custody of Petitioner for an extended period. The Court 23 does not find that the children would be at grave risk of psychological harm if Petitioner 24 and Respondent have joint custody of them in Germany. Furthermore, the Court does not 25 find that the children would be at grave risk of psychological harm if Petitioner has sole 26 custody of them for a limited duration. See Gaudin, 415 F.3d at 1037 (“Because 27 psychological harm is often cumulative, especially in the absence of physical abuse or 28 extreme maltreatment, even a living situation capable of causing grave psychological harm 1 over the full course of a child’s development is not necessarily likely to do so during the 2 period necessary to obtain a custody determination.”) 3 Accordingly, the Court orders as an ameliorative measure that Respondent return 4 with O.S.R. and M.S.R. to Germany and remain there on a tourist visa for 90 days, sharing 5 joint custody of the children with Petitioner in Germany while she remains there. Based on 6 the record evidence, the Court finds that a German court will likely be able to make a 7 custody determination within six months of the children’s arrival in Germany. Therefore, 8 even if Respondent departs Germany 90 days after the children’s arrival, the children 9 would remain in Germany in Petitioner’s custody only for a limited duration. Furthermore, 10 by that point, the children will be re-acclimated to life in Germany and to the care of 11 Petitioner. Respondent may attempt to obtain a resident visa to stay with the children in 12 Germany in a joint-custody arrangement until a German court makes a final custody 13 determination. But even if Respondent leaves Germany after 90 days, and even if a German 14 court has not made a final custody determination by the time Respondent departs, the Court 15 finds that requiring Respondent to return with O.S.R. and M.S.R. to Germany remains a 16 sufficient ameliorative measure to mitigate the borderline grave risk of psychological harm 17 that exists in this case. 18 B.
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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 On December 1, 2022, the Ninth Circuit Court of Appeals remanded the above- 16 captioned case to this Court on a limited basis for purposes of clarification of this Court’s 17 Orders requiring the return of minors O.S.R. and M.S.R. to Germany. (Doc. 121.) 18 I. Procedural Background 19 On June 8, 2020, Petitioner Bogdan Radu (“Petitioner”) filed a Petition pursuant to 20 the Hague Convention on the Civil Aspects of International Child Abduction (“the 21 Convention”) and its implementing legislation, the International Child Abduction 22 Remedies Act (“ICARA”). (Doc. 1.) After an evidentiary hearing, this Court issued an 23 Order on September 17, 2020 requiring Respondent Persephone Johnson Shon 24 (“Respondent”) to return minor children O.S.R. and M.S.R. to Germany. (Doc. 26.) 25 Pursuant to Article 13(b) of the Convention, the Court found the children would face a 26 grave risk of psychological harm if returned to Germany in the custody of Petitioner and 27 therefore ordered, as an ameliorative measure, that the children be returned in the 28 temporary custody of Respondent. (Id. at 5-6). 1 The Ninth Circuit vacated and remanded for this Court to reasonably ensure 2 compliance with its ameliorative measure. (Doc. 51-1.) On December 30, 2021, after a 3 further evidentiary hearing, this Court again granted the Petition and ordered Respondent 4 to return O.S.R. and M.S.R. to Germany. (Doc. 77.) The Court found that ordering the 5 return of the children in the sole custody of Respondent was not necessary to mitigate a 6 grave risk of psychological harm and that ordering Respondent to return with the children 7 to Germany, where Petitioner and Respondent have joint custody rights, was sufficient. 8 (Id. at 6-7.) The Court further found that Respondent would be able to stay in Germany for 9 up to 90 days as a tourist and that Petitioner, if necessary, would commit to purchasing the 10 airfare for O.S.R. and M.S.R.’s return to Germany and to paying rent for a separate 11 residence in Germany for Respondent and the children to live in until a German court 12 makes a custody determination. (Id. at 7-8.) 13 Respondent appealed the December 30, 2021 Order, and the Ninth Circuit remanded 14 for consideration of the recently decided United States Supreme Court case Golan v. Saada, 15 __ U.S. __, 142 S. Ct. 1880 (2022), which ruled that a court is not required to consider 16 ameliorative measures upon an Article 13(b) grave-risk finding. (Doc. 99.) On remand, this 17 Court found in its discretion that consideration of ameliorative measures was appropriate 18 in this case and that the ameliorative measures as stated in its December 30, 2021 Order 19 satisfy the standards articulated in Golan. (Doc. 112.) Respondent appealed (Doc. 114), 20 and the Ninth Circuit remanded on a limited basis for clarification of the logistics of the 21 children’s return (Doc. 121). 22 II. Limited Remand 23 The Ninth Circuit has directed this Court to address seven questions: 24 (a) what, specifically, is the district court’s current Article 13(b) grave-risk finding 25 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 26 Shon, (d) what the custody arrangements for the children will be (sole or joint) while 27 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 28 visa before a German court decides custody, (f) whether the parties should notify 1 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 2 overseeing the children’s wellbeing while they are present in Germany. 3 (Doc. 121.) 4 A. Article 13(b) Grave-Risk Finding and Ameliorative Measures 5 Under Article 13(b) of the Convention, a court is not required to return a child if 6 “there is a grave risk that his or her return would expose the child to physical or 7 psychological harm . . .” The respondent must establish a grave-risk defense by clear and 8 convincing evidence. 22 U.S.C. § 9003(e)(2)(A). 9 The Court’s initial September 17, 2020 Order found that O.S.R. and M.S.R. would 10 face a grave risk of psychological harm if returned to Germany in the custody of Petitioner. 11 (Doc. 26 at 5.) The Court later clarified that its grave-risk finding was limited to a situation 12 in which the children were returned in Petitioner’s sole custody. (Doc. 77 at 6-7.) The Court 13 also noted that the grave-risk finding in its September 17, 2020 Order considered the risk 14 of harm over a time period longer than the one likely at issue in this case. (Id. at 7.) The 15 Court had considered the risk of harm to the children over years given Petitioner’s 16 parenting style. However, it is likely that a German court would be able to make a custody 17 determination within months. See Gaudin v. Remis, 415 F.3d 1028, 1037 (9th Cir. 2005), 18 abrogated on other grounds by Golan, 142 S. Ct. 1880 (grave-risk finding should be based 19 only on time period necessary to obtain custody determination). 20 The Court now clarifies that its finding under Article 13(b) of the Convention is that 21 O.S.R. and M.S.R. would be at grave risk of psychological harm if they were to return to 22 Germany and remain in the sole custody of Petitioner for an extended period. The Court 23 does not find that the children would be at grave risk of psychological harm if Petitioner 24 and Respondent have joint custody of them in Germany. Furthermore, the Court does not 25 find that the children would be at grave risk of psychological harm if Petitioner has sole 26 custody of them for a limited duration. See Gaudin, 415 F.3d at 1037 (“Because 27 psychological harm is often cumulative, especially in the absence of physical abuse or 28 extreme maltreatment, even a living situation capable of causing grave psychological harm 1 over the full course of a child’s development is not necessarily likely to do so during the 2 period necessary to obtain a custody determination.”) 3 Accordingly, the Court orders as an ameliorative measure that Respondent return 4 with O.S.R. and M.S.R. to Germany and remain there on a tourist visa for 90 days, sharing 5 joint custody of the children with Petitioner in Germany while she remains there. Based on 6 the record evidence, the Court finds that a German court will likely be able to make a 7 custody determination within six months of the children’s arrival in Germany. Therefore, 8 even if Respondent departs Germany 90 days after the children’s arrival, the children 9 would remain in Germany in Petitioner’s custody only for a limited duration. Furthermore, 10 by that point, the children will be re-acclimated to life in Germany and to the care of 11 Petitioner. Respondent may attempt to obtain a resident visa to stay with the children in 12 Germany in a joint-custody arrangement until a German court makes a final custody 13 determination. But even if Respondent leaves Germany after 90 days, and even if a German 14 court has not made a final custody determination by the time Respondent departs, the Court 15 finds that requiring Respondent to return with O.S.R. and M.S.R. to Germany remains a 16 sufficient ameliorative measure to mitigate the borderline grave risk of psychological harm 17 that exists in this case. 18 B. Cost of Children’s Airfare and Living Arrangements 19 Any court ordering the return of a child pursuant to Convention must order the 20 respondent to pay “transportation costs related to the return of the child, unless the 21 respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 22 9007(b)(3). 23 At the post-remand evidentiary hearing, Respondent testified that she had only $700 24 in savings and would be unable to afford plane tickets to Germany or rent in Germany. 25 (Doc. 77 at 3.) The Court did not find that testimony to be entirely credible because it 26 conflicted with other testimony concerning Respondent’s employment, lifestyle, and 27 expenses. (Id. at 3, 7-8.) 28 The Court now clarifies that it finds Respondent to be capable of paying for airfare 1 for herself and the children to return to Germany. Respondent has not shown that ordering 2 her to pay for airfare to Germany is clearly inappropriate. Accordingly, pursuant to 22 3 U.S.C. § 9007(b)(3), the Court orders Respondent to bear the costs of transporting herself, 4 O.S.R., and M.S.R. back to Germany. However, the Court finds that Respondent has 5 established that she would likely have difficulty paying rent in Germany, since she is 6 eligible only for unpaid leave from her job in Tucson, Arizona, and she would be staying 7 on a tourist visa in Germany without the ability to work there. (See Doc. 76 at 13; Doc. 77 8 at 3.) Accordingly, the Court orders Petitioner to pay the costs for a separate residence for 9 Respondent—and the children when they are in Respondent’s care—to live in while 10 Respondent is in Germany, until a German court makes a final custody determination or 11 for 90 days, whichever time period is shorter. 12 C. Custody Arrangements in Germany 13 As discussed above, the Court’s ameliorative measure requires Respondent to return 14 with O.S.R. and M.S.R. to Germany. Once in Germany, Petitioner and Respondent will 15 have joint custody of the children pursuant to German law, until a German court makes a 16 custody determination. (Doc. 77 at 8; Doc. 112 at 4; Doc. 120 at 4). 17 If Respondent’s tourist visa expires before a German court makes a custody 18 determination, and Respondent has been unable to obtain a resident visa by that time, then 19 Petitioner will have custody of the children after Respondent departs and until a German 20 court makes a custody determination. 21 D. Notification of German Child Protective Services 22 Respondent may choose to notify Germany’s child protective services upon her 23 arrival in Germany, and she may also choose to notify any other agencies available to assist 24 her with initiating custody proceedings or obtaining counseling services for the children. 25 However, the Court declines to order Respondent to notify any agencies, as it does not find 26 such an order to be necessary under the circumstances. 27 E. Jurisdiction of German Child Protective Services 28 The Convention is premised on a recognition that “courts in contracting states” will || “decide what is in the child’s best interests . . . in a responsible manner.” Abbott v. Abbott, 560 U.S. 1, 20 (2010). The principles of comity underlying the Hague Convention favor respecting contracting states’ ability to ensure the protection of children within their 4|| borders. 5 The Court finds that the existence of the German equivalent of child protective || services, jugendamt, is supported by the evidence of record and is also an appropriate 7\|| matter for judicial notice. The Court also finds, based on the record evidence, that there is 8 || no reason to doubt that Germany’s child protective services would have authority to ensure 9|| the children’s safety if necessary while the children are living in Germany. It does not 10 || appear that a further evidentiary hearing is within the scope of the Ninth Circuit’s limited 11 || remand. However, this Court will hold an evidentiary hearing on this issue if instructed to □□ □□ by the Ninth Circuit. 13 IT IS ORDERED that the Clerk of Court is directed to forward a copy of this Order || to the Clerk of the Ninth Circuit Court of Appeals. 15 Dated this 9th day of January, 2023. 16 17 8 ph bien, 19 Honorable Rostehary Mafquez 20 United States District □□□□□ 21 22 23 24 25 26 27 28
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