On March 13, 2023, the Ninth Circuit Court of Appeals affirmed an order of the District Court requiring the return of the Radu-Shon children to Germany. On April 4, 2023, Petitioner filed an application for stay of the return of the children and disposition of a petition for writ of certiorari before the U.S. Supreme Court. As a note, this matter was before the U.S. Supreme Court in 2022, where the Court granted the Petitioner’s request for a writ of certiorari, vacated the prior return order, and remanded the case for further proceedings in light of the Supreme Court’s opinion in the case of Golan v. Saada. The further proceedings resulted in another return order, another appeal to the Ninth Circuit, and its recent March 2023 affirmance.
The recent application by Petitioner before the Supreme Court argues that “[t]here has never yet been an evidentiary hearing in this case at which grave risk and ameliorative measures were assessed under the correct legal standard [i.e., Golan].” “The Mother … requests a stay of the district court’s Third Return Order pending the filing and disposition of the Mother’s second petition for a writ of certiorari in this [Supreme] Court.” The application states that “[t]here are no orders or any other protective measures in place in Germany. Nothing. As explained by the uncontroverted testimony of Mother’s German law expert at the hearing on the first remand in this case, German courts cannot take any steps until the children arrive in Germany.” Petitioner argues this is very different than the circumstances in Golan v. Saada, where the Italian courts were very involved in issuing protective orders that would be put into place upon the child’s return to Italy. The application expresses concern that the Respondent will remove the children upon their arrival to Germany and abduct them to another country. It argues that there is a colorable legal conflict to be resolved by the Supreme Court, namely the allocation of the burden of proof of which parent must prove the ameliorative measures in a case. It also argues that the lower court “conferred ex parte and off-the-record with the State Department and with a foreign government…” which was “inadmissible hearsay conversations” that it then “materially relied on…” and “failed to create a record.”
On April 7, 2023, Justice Elena Kagan denied the Petitioner’s request for a stay from the Supreme Court.
As a note, on April 6, 2023, the U.S. District Court lifted its temporary stay of the return order.