On September 17, 2020, the U.S. District Court for the District of Arizona previously issued an order granting Mr. Radu’s request to have his children returned to Germany. The court opined that the children would be subject to a grave risk of psychological harm if returned in Mr. Radu’s custody, but that the harm could be mitigated by ordering them returned in Ms. Shon’s temporary custody. Ms. Shon appealed. The 9th Circuit found the court’s safe harbor return order to be permitted under the Convention, but vacated it and remanded it back to the District Court “to reasonably ensure compliance with its alternative remedy in Germany.” On November 3 and 9, 2021, the District Court held its further hearing. The court also contacted the U.S. Department of State for assistance.
At the second hearing, Ms. Shon called Dr. Andreas Hanke, a German attorney, as an expert. He testified that a U.S. custody order would be enforced in Germany, but a Hague return order (presumably one like the one here that grants temporary custody to Ms. Shon) is not eligible for recognition or enforcement in Germany. He further testified that the concept of “alternative remedies” or some type of mitigating factor is unknown in Germany, so the temporary custody order would be unenforceable. He further testified that at the time of removal, Germany was the children’s habitual residence, but the German court would, at this juncture, now consider the children to be habitually resident in the United States. This means that the German court would no doubt require the children live in Germany for many (perhaps 6) months before its courts could make a custody determination. Finally, because the children are not German citizens, Ms. Shon could not initiate German custody proceedings while in the U.S.
Mr. Radu further testified that he was willing to undertake financial obligations to Ms. Shon if the children are returned, live in a separate household, and that he understood the German courts and German social services were more than capable of caring for the children if something were to happen.
The Court independently contacted the U.S. Department of State’s German Country Officer, who connected the court with the German Central Authority. The GCA could give no binding statement about the length of time for a German court to make a custody determination, but it referred the court to the German Civil Code which said that matters related to children shall be handled in an expedited manner.
This Circuit is required, upon a finding of a grave risk, to examine alternative remedies, and should focus on whether the remedies are enforceable in the habitual residence. “The alternative remedies inquiry ‘is inseparably bound up with the question whether a grave risk of psychological harm exists in the first place,’ and both the existence of a grave risk of harm and the effect of remedies must be considered in light of circumstances as they exist at the present.” The court again concluded that there are sufficient alternative remedies that can nonetheless allow the children to return to Germany. The children are ordered returned in 30 days.
As a note, Ms. Shon already filed a petition for writ of certiorari in the U.S. Supreme Court on November 29, 2021. On December 27, 2021, she filed a motion seeking to either hear her case on an expedited manner alongside Saada v. Golan, or to defer consideration of her petition until the resolution in Saada v. Golan.