On November 21, 2022, the Ninth Circuit Court of Appeals conducted oral arguments in the Hague Abduction Convention case of Radu v. Shon. This case is before the Ninth Circuit for the second time. There have been three orders requiring Ms. Shon to return the parties’ children, and the key issue has revolved around the grave risk that the trial judge found if the children were returned to Germany, and the ameliorative measures she put in place. You can read more about the case here.
Persephone Shon (Respondent/Appellant)’s Arguments:
Counsel for Ms. Shon expressed concern that the trial judge had ex parte communications with the Central Authority about factual issues (i.e., the length of time that it would take a German court to resolve custody), and therefore concluded that it would take a German court only six months to resolve custody of the parties’ children, which counsel argues is not what their German law expert stated on the record (he stated that a German court would have jurisdiction to consider custody once the children had been in Germany for six months). Ms. Shon had requested that any communication with the Central Authority be on the record or in open court, if it was even to be had. Counsel also clarified that Ms. Shon is only an American citizen, and no longer has status in Germany, and is therefore only able to enter Germany on a 90-day tourist visa. The 3-judge panel asked counsel to articulate what ameliorative measures would be “enough” to safely return the minor children. Counsel expressed concern that the first order returning the children was a custody order, and that was impermissible under the Convention. She argued that the only ameliorative measure ordered thus far is a requirement that Ms. Shon travel with the children to Germany, and while Mr. Radu agreed to voluntary undertakings (payment for rent, travel, etc.), there is no legal obligation for him to actually follow through with those undertakings. The judges questioned that rent, travel arrangements, etc. are merely logistics and the court created an avenue for those things to “get worked out.” Counsel further argued that the court, on remand, should have had a further evidentiary hearing to assess the current impact of the father’s “psychological abuse on the children.” The court was not persuaded by this argument, stating that with every case that “goes up and down” the appellate courts, there would then be need for another evidentiary hearing, which is counter to the Convention. Counsel argued that part of the new evidentiary hearing would address the fact that the original trial did not contemplate the children being placed in Mr. Radu’s temporary custody upon their return, but now it is obvious that they would be, at least after the 90 days when Ms. Shon would be required to leave Germany. On rebuttal, counsel argued that it would be Mr. Radu’s burden to demonstrate what child protective services can and cannot do, and what impact the children’s nationality may have on a German custody decision.
Mr. Bogdan Radu (Petitioner/Appellee)’s Arguments:
When Mr. Radu’s counsel un-muted, the judges asked about the status of the children between the 90 day period at which Ms. Shon would be required to leave Germany and the 6 month period when the German court would presumably issue its custody order (or, as Ms. Shon’s counsel argued, when the German court would have jurisdiction to commence a custody action). Counsel indicated that the trial court found that Ms. Shon’s parents would be able to travel to Germany for a period of time to help with childcare. The court, concerned the grandparents could not or would not travel, asked counsel what then? Counsel argued that the grave risk of harm would be to the children having a long-term exposure to Mr. Radu’s behavior, and if the children were in his care for a shorter period of time, coupled with the German court’s ability to protect the children, then the harm would be ameliorated. Counsel stressed that Ms. Shon plans on moving to Berlin, and does not have to disclose her address to Mr. Radu. But, the judges were concerned about that second 90-day period (after Ms. Shon left Germany). Counsel argued that the risk of harm is “very low” over that second 90-day period, and that the trial judge already contemplated that Mr. Radu will, at some point, have custody over the period of time before the German court issues a custody order, and that is “sufficient to protect the children.”
The court noted that during its first hearing, it declined to place the burden of arguing/presenting ameliorative measures on either party, but that most courts place the burden on the Petitioner (Mr. Radu). Mr. Radu’s counsel argued that the risk of harm was low (i.e., that the grave risk was the risk of psychological harm of the long term). There is a high likelihood of performance – Mr. Radu’s testimony was credible, and the trial judge saw no need to believe he would not voluntarily follow through with the undertakings to which he agreed. The judges asked what might happen in Germany if Mr. Radu did not abide by his commitments, and counsel argued that is when Child Protective Services will likely step in. Further, the United States is a treaty partner with Germany and that implies we have trust in the German legal system and its ability to protect children. Ms. Shon’s counsel argued that there was a lack of evidence as to what might actually happen, and that this is why another evidentiary hearing was necessary – to permit a psychological expert to testify as to precisely the impact on the children between day 91 of being back in Germany and any eventual German custody order, which is not guaranteed to be entered by the six month mark.