Ameliorative Measures | Undertakings | Office of Children’s Issues | Grave Risk | Foreign Law

This case involved an appeal of a return order after finding of 13(b) grave risk. At issue were the adequacy and availability of alternative measures (undertakings) to ameliorate the return of children where the court found a grave risk.

Holding

The Ninth Circuit reversed the district court’s order of return, holding that the court must determine whether alternative ameliorative measures are likely to be performed.

Facts

The father and mother had two children, born in 2013 and 2016. In 2016 the family moved from the United States to Germany when the father was transferred there by his job. In June 2019, the mother removed herself and the two children to Arizona. The father petitioned for the return of the children in June 2020, two days shy of a year after the children’s removal.

At trial, the mother presented evidence that the father inflicted psychological and emotional abuse on her and the children. There was no evidence that the father physically abused the children, but the mother testified that on one occasion he sexually assaulted her. No reports of spousal or child abuse were reported to German authorities. The mother’s therapist testified that mother displayed symptoms of PTSD.

Although the district court concluded that pursuant to Article 13(b), the children would be at grave risk of harm if they were returned to the custody of the father in Germany. As an ameliorative measure, the court ordered the children returned by the mother to Germany where she would have temporary custody pending a custody determination made by a German court.

Discussion

Citing circuit precedent, Gaudin v. Remis, the Ninth Circuit observed that “if a court decides that the record supports an Article 13(b) defense, it “must proceed to consider whether that risk can be minimized or eliminated through some alternative remedy.”^[1]

The Ninth Circuit vacated the district court’s “alternative remedy” order, finding that it failed to determine “whether and how the alternative remedy is likely to be performed.”^[2]Ameliorative measures must be enforceable by the district court itself or otherwise supported by other “sufficient guarantees of performance.”^[3] In this case there was no evidence that safeguarding the children by returning them to Germany in mother’s custody had a “high likelihood of performance through supportive reinforcements.”

A “grave risk” finding does not preclude an order of return with mitigation measures.^[4] The Ninth Circuit affirmed that district courts have discretion to order the relocation of the abducting parent with repatriated children, if this would mitigate a grave risk of harm.^[5] However, the court must consider the enforceability in the habitual residence of legal measures to mitigate the risk of harm.^[6] To this end, the court should consider:

• the likelihood of compliance with any court orders or legal measures, as well as history of the parent’s relationship, cooperation, and interpersonal communications;^[7]
• the possibility of soliciting promises, commitments, or other assurances to facilitate repatriation, which may involve directing parents to arrange for legal measures in the foreign jurisdiction—the children's habitual residence;^[8]
• analyzing pertinent laws that may direct parties to obtain or confirm the existence of protective measures from the habitual residence;^[9]
• requesting supplementary evidence on issues relating to supporting reinforcements of alternative measures;^[10]
• Contacting the Department of State’s Office of Children’s Issues to “coordinate legal safeguards or otherwise procure assistance from the foreign jurisdiction to address or resolve nay issues animating the Article 13(b). . . finding.”^[11]

The mother argued that the father bore the burden of producing evidence on the enforceability of “alternative remedies” in Germany. The court declined to address this argument, though it noted that certain contingencies (inability to maintain employment, immigration status) should be substantiated by the party asserting them.