Filed: Feb. 14, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 2-14-2006 In Re: Ariel Adan Precedential or Non-Precedential: Precedential Docket No. 05-3045 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "In Re: Ariel Adan " (2006). 2006 Decisions. Paper 1504. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1504 This decision is brought to you for free and open access by the Opinions of the United
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 2-14-2006 In Re: Ariel Adan Precedential or Non-Precedential: Precedential Docket No. 05-3045 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "In Re: Ariel Adan " (2006). 2006 Decisions. Paper 1504. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1504 This decision is brought to you for free and open access by the Opinions of the United ..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-14-2006
In Re: Ariel Adan
Precedential or Non-Precedential: Precedential
Docket No. 05-3045
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"In Re: Ariel Adan " (2006). 2006 Decisions. Paper 1504.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1504
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3045
IN RE: APPLICATION OF ARIEL ADAN
ELENA ESTHER AVANS,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 04-cv-05155)
District Judge: Honorable William H. Walls
Argued September 29, 2005
Before: ALITO* and AMBRO, Circuit Judges
RESTANI,** Judge
(Opinion filed: February 14, 2006)
Elliot H. Gourvitz, Esquire (Argued)
150 Morris Avenue
P.O. Box 476
Springfield, NJ 07081
Counsel for Appellant
Walter A. Lesnevich, Esquire (Argued)
Francesca Marzano-Lesnevich, Esquire
Michael R. Mildner, Esquire
Lesnevich & Marzano-Lesnevich
21 Main Street,
Court Plaza South
Hackensack, NJ 08601
Counsel for Appellee
*
Then Judge, now Justice, Alito heard oral argument in
this case but was elevated to the United States Supreme Court
on January 31, 2006. The opinion is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
**
Honorable Jane A. Restani, Chief Judge, United States
Court of International Trade, sitting by designation.
2
OPINION OF THE COURT
AMBRO, Circuit Judge
Elena Esther Avans1 appeals from an order of the United
States District Court for the District of New Jersey granting
appellee Ariel Adan’s application for return of his daughter
Arianna to Argentina pursuant to the Hague Convention on the
Civil Aspects of International Child Abduction (the “Hague
Convention” or “Convention”), Oct. 25, 1980, T.I.A.S. No.
11,670, 19 I.L.M. 1501 (1980). Avans asks us to reverse the
District Court’s order and dismiss the application. For the
reasons stated below, we vacate the District Court’s order and
remand for further proceedings consistent with this opinion.
I.
The factual background of this case is troubling. We say
this not only because of the ominous accusations of abuse that
have been directed at Adan, but also because the record on
appeal is woefully incomplete. The parties’ submissions to our
1
In her brief, Avans refers to herself as “Elena Esther
Mazza.” Because she has not made a motion to amend the
official caption of this case to reflect a change in name, we shall
refer to her as “Avans” in this opinion.
3
Court are of little help in piecing together the chain of events at
issue, and the District Court did not make detailed, written
findings of fact to assist us. The facts and procedural history
stated herein, therefore, are taken from the District Court record,
including transcripts and filings, and (to the extent they are
helpful) the parties’ submissions to this Court.
A. Background
Avans is a naturalized U.S. citizen and former girlfriend
of Adan, a citizen of Argentina. The parties met in Argentina in
1998 at a support group for recovering drug and alcohol abusers
and began cohabiting shortly thereafter. According to Avans’
testimony before the District Court, Adan became violent
shortly after Avans moved in with him. She alleges that Adan
locked her in his bedroom, beat her, and threatened her with
further harm if she ever left him. In 1999 Avans became
pregnant by Adan. In March 2000, while she was still pregnant,
Avans came to the United States and began living in New
Jersey. Adan followed her in April 2000 and (according to
Avans) the abuse resumed. She contends that Adan tried to
suffocate her with a pillow, and she filed a report with the
Roselle, New Jersey police department alleging that he “picked
up two laundry bags and threw them over her head.” Avans
gave birth to Arianna on June 15, 2000.
The parties lived in New Jersey for the next three months.
Avans alleges that during this time the abuse continued,
4
including Adan’s threats to drown the child if Avans ever left
him. She filed another report with the Roselle police on June
30, 2000 alleging that Adan pushed her while holding Arianna
and, when Avans left to walk to the police station to file a
report, Adan drove after her and told her to return home because
he had left Arianna alone. In September, Adan announced that
he wanted Avans and Arianna to return with him to Argentina.
According to Avans, Adan knelt next to Arianna’s crib and
screamed in the child’s ear until Avans finally agreed to his
demand. On September 15, 2000 the parties and their daughter
returned to Argentina.
Avans contends the abuse got worse while she was in
Argentina, including an incident in March 2002 when Adan
allegedly threatened Avans and Arianna with a gun, another
incident from the same month when Avans claims Adan hit her
at a birthday party, and a later incident when Adan purportedly
chained the gate to Avans’ home shut so she could not get out.
Throughout these incidents, Avans contends that she repeatedly
sought the assistance of the Argentine police and court system
but they did nothing, which she attributes to bribes Adan
allegedly paid to police and judges. Avans eventually began
living apart from Adan, and the parties reached an informal
custody agreement regarding Arianna. Aside from short visits
to the United States in May 2001 and May 2003, Avans and
Arianna remained in Argentina.
5
Avans alleges that Adan began sexually abusing their
daughter in 2003. Specifically, she contends that in June 2003
she discovered a pubic hair in her daughter’s vagina, which
Adan attributed to Arianna being in a dirty bed. Avans also
contends that on several occasions Arianna would return from
visits with her father, sometimes after having been gone for only
a few hours, with wet hair. The child allegedly told her mother
that Adan took baths with her and “loves [her] with his tongue,”
whereupon the child showed her mother that Adan apparently
had kissed her and put his tongue inside her mouth. Avans also
alleges that her daughter said that Adan “was putting something
hot in her butt” that hurt. In addition, Avans alleges Adan
pushed Arianna so hard that she vomited, and then proceeded to
rape Avans in front of Arianna.
After these incidents, Avans went to family court in
Argentina, accompanied by her landlord and neighbors, and
filed a complaint against Adan that resulted in a 90-day
temporary restraining order against him. According to Avans,
Adan violated the restraining order and the police would not
enforce it. Shortly before the February 2004 return date on the
temporary restraining order, Avans brought her daughter to the
United States.
Adan agrees with Avans’ chronology of their relationship
but contests her allegations of abuse. He contends that Avans
was under the influence of drugs and could not take care of
Arianna. He states that he paid all expenses related to Arianna’s
6
care and upbringing in Argentina, and denies having ever raped
Avans or bribed police officers or judges. He also denies having
sexually assaulted Arianna or abusing Avans, although the
transcript of his hearing testimony reveals that he did not
specifically deny particular acts of abuse. He admits using
marijuana and alcohol while he lived with Avans, but states that
she used them as well. His brief before our Court dismisses
Avans’ remaining allegations as “gossip that is irrelevant to the
issues at bar.” Appellee’s Br. at 6.
B. Legal Proceedings in the United States
Adan eventually traced a Western Union wire transfer to
Avans and discovered she and Arianna had returned to New
Jersey. Although the record is unclear on the precise date, Adan
came to New Jersey sometime in the spring of 2004 looking for
his daughter. In April 2004 Avans obtained a temporary
restraining order against Adan from the Superior Court in Union
County, New Jersey. Adan filed the application that is the
subject of this appeal in the United States District Court for the
District of New Jersey in October 2004.
The District Court held a hearing on June 6 and 7, 2005,
at which it heard testimony from Avans and Adan consistent
with the factual background recounted above. At this hearing,
the Court also learned that Adan had filed a criminal complaint
against Avans in Argentina for kidnaping Arianna, and that the
Argentine authorities had issued a warrant for her arrest and
7
were seeking extradition. The Court also heard testimony from
Avans that Arianna had been seeing a therapist in New Jersey
regarding sexual behaviors the child had exhibited, and received
into evidence a photograph that Adan took of Arianna and sent
to Avans in which the girl is wearing her underwear over her
head like a mask.
On June 7, 2005 the District Court issued a one-sentence
order granting Adan’s petition for return of the child and
ordering Avans to return Arianna to Argentina immediately.
Although the Court made no formal written findings of fact, the
District Judge did make some oral comments regarding the
credibility of the witnesses and their testimony in the course of
announcing his decision. He concluded that “the respondent
[Avans] is a little more credible” than Adan and that “the
petitioner [Adan] lied or was not being truthful when he denied
that he had ever verbally threatened [Avans] or abused her, if we
use that term in the context of verbal abuse.” The Court
described Adan as
effusive and just running all over
the field in giving answers to
questions which did not deal with
[the alleged abuse]. But when he
was asked those questions [related
to the alleged abuse], he sort of
more or less clammed up and gave
us very bald, sterile [answers,]
8
which was great[ly] at odds with
the . . . man whom I saw constantly
running off at the mouth, to use the
vernacular, on the stand in a very
hyper manner, which is quite
consistent with the manner in
which he is portrayed by the
respondent [and is] not inconsistent
with what she claims he did.
Nonetheless, the District Court concluded that Avans had
not demonstrated by clear and convincing evidence that Arianna
would be subject to physical or psychological harm if returned
to Argentina, as required by the Convention. With respect to the
allegations of sexual abuse, the District Judge concluded that
Arianna’s statement that her father “was putting something hot
in her butt” that hurt was “no proof whatsoever of sexual abuse
[because] [t]hat can be anything.”2 As for Avans’ discovery of
a pubic hair in Arianna’s vagina, the Judge found “that without
anything else means nothing, particularly since there has been
no evidence . . . of having [the] child readily examined by a
competent medical person to determine whether there had been
true sexual abuse or whether, as the petitioner says, the child had
2
During the hearing, the Judge interrupted Avans’
testimony on this issue, stating that “as a parent and a
grandparent that can mean a lot of things . . . so I don’t know
what that means. . . . [T]hat means nothing to me.”
9
been lying on a dirty bed.” The Judge also did not place much
reliance on Arianna’s statement that her father “love[d] [her]
with his tongue,” finding the statement “not significant because
. . . it’s not unusual in this country at least for parents and
grandparents to at times in playing with young toddlers to kiss
them with tongues on the cheeks and then sometimes the tongue
may have gone too far.” From the transcript, it does not appear
that the District Court made any findings regarding the
allegations that Adan abused Avans and raped her in front of
Arianna, and the Court did not mention the allegations that Adan
took frequent baths with the child and screamed in her ear, or
regarding the photograph of Arianna wearing her underwear
over her face. The District Court also found that the March
2002 gun incident would have been a “substantial factor” in
proving a grave risk of harm to Arianna, but discounted its
importance because it happened about 23 months before Avans
removed Arianna from Argentina.
Based on this analysis, the District Court concluded that
Avans’ allegations did not constitute “a showing of a grave risk”
to Arianna if she was returned to Argentina. The Court further
concluded that, even if there was a grave risk of harm to
Arianna, he would still be inclined to exercise his discretion to
order Arianna returned, as “this matter is best determined by
Argentinian courts because it is all interwoven with a struggle,
as I said, for custody and determination of domestic abuse,
which is not the purpose of the Convention.”
10
C. Post-Hearing Issues
On June 14, 2005 Avans filed a notice of appeal. The
next day, the District Court ordered her to comply with its order
on the merits by purchasing an airline ticket to Argentina for
Arianna no later than June 17, 2005. On June 16, 2005 we
granted an emergency stay of this order pending review and
disposal of Avans’ appeal. In light of the stay, Arianna remains
in the United States.
On July 22, 2005 Avans moved the District Court to
supplement the record on appeal with recently uncovered
evidence pursuant to Federal Rule of Appellate Procedure
10(e)(2). This evidence included: (1) documents establishing
that Avans succeeded in obtaining a permanent restraining order
against Adan in New Jersey on June 28, 2005 due to Adan’s
repeated violations of the temporary restraining order; (2) an
e-mail from Adan to Avans dated January 27, 2004, in which he
tells her “when I see you I think I will rape you totally;” and (3)
a message dated March 5, 2004, in which Adan tells Avans
“now that my mind is clear from drugs and from alcohol I can
realize all the time I lost and all the damages I caused you, (and
[Arianna]).” The District Court denied this motion on August
9, 2005.3 Avans also brings to our attention that the Argentine
3
We note that the e-mails are not admissible on appeal.
In denying Avans’ motion, the District Court correctly noted
that Rule 10(e)(2) allows amendment of the record on appeal
11
only to correct inadvertent omissions, not to introduce new
evidence. See United States ex rel. Mulvaney v. Rush, 487 F.2d
684, 687 n.5 (3d Cir. 1973) (“The purpose of the rule is to
permit correction or modification of the record transmitted to the
Court of Appeals so that it adequately reflects what happened in
the District Court.”). Moreover, we will not consider new
evidence on appeal absent extraordinary circumstances, such as
those that render the case moot or alter the appropriateness of
injunctive relief, a change in pertinent law, or facts of which a
court may take judicial notice. See Goland v. Cent. Intelligence
Agency,
607 F.2d 339, 370 n.7 (D.C. Cir. 1978) (per curiam).
The e-mails do not fall within any of these categories and we
therefore cannot consider them.
As for the subsequent developments in the New Jersey
criminal proceedings against Adan, although such evidence may
ordinarily be judicially noticed, see Landy v. Fed. Deposit Ins.
Corp., 486 F.2d 139, 150-51 (3d Cir. 1973), we decline to do so
here. Avans has not challenged the District Court’s refusal to
consider this evidence, nor has she made a proper motion to our
Court for such consideration. Indeed, besides the motion to the
District Court (the denial of which she does not appeal), the only
attempt Avans made to have this evidence considered on appeal
is her response to our September 8, 2005 order directing the
parties to submit separate letter memoranda regarding the status
of any relevant legal proceedings in Argentina. Her reply
characterized our order as “invit[ing] counsel to go beyond the
record to also submit to the Court the present status of the
domestic violence proceedings against the petitioner in the
United States.” Our order did not invite counsel to do so. In
this context, we have no choice but to conclude that Avans has
12
criminal court dropped the extradition request against her in
August 2005 on condition that she voluntarily appear in
Argentina to respond to the kidnaping charges.
On appeal, Avans asserts that the District Court erred in
finding that the Convention required Arianna’s return to
Argentina. For the reasons that follow, we vacate the District
Court’s June 7, 2005 order and remand the case for further
proceedings consistent with this opinion.
II.
The District Court had jurisdiction over this case under
28 U.S.C. § 1331, as it is a civil action arising under the laws or
treaties of the United States, and 42 U.S.C. § 11603(a), which
grants state and federal courts “concurrent original jurisdiction
of actions arising under the Convention.” Our jurisdiction rests
upon 28 U.S.C. § 1291, since Avans filed a timely notice of
appeal from a final decision of the District Court.
III.
A. Standard of Review
The Convention is codified in United States law by the
waived her opportunity to have us consider this evidence on
appeal.
13
International Child Abduction Remedies Act, 42 U.S.C. § 11601
et seq. The purpose of the Convention is to “protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure their
prompt return to the State of their habitual residence, as well as
to secure protection for rights of access.” Hague Convention,
preamble, 19 I.L.M. at 1501; see Yang v. Tsui, 416 F.3d 199,
201 (3d Cir. 2005) (same). Under Article 3 of the Convention,
removing a child from a country is wrongful when:
[a] it is in breach of rights of
custody attributed to a person, an
institution or any other body, either
jointly or alone, under the law of
the State in which the child was
habitually resident immediately
before the removal or retention; and
[b] at the time of removal or
retention those rights were actually
exercised, either jointly or alone, or
would have been so exercised but
for the removal or retention.
14
The rights of custody
mentioned in sub-paragraph [a]
above . . . may arise in particular by
operation of law or by reason of a
judicial or administrative decision,
or by reason of an agreement
having legal effect under the law of
that State.
Hague Convention, art. 3, 19 I.L.M. at 1501. A wrongful
removal may nonetheless be justified if one of the following
exceptions applies:
[a] the person, institution or
other body having the care of the
person of the child was not actually
exercising the custody rights at the
time of removal or retention, or had
consented to or subsequently
acquiesced in the removal or
retention; or
[b] there is a grave risk that
his or her return would expose the
child to physical or psychological
harm or otherwise place the child in
an intolerable situation.
15
Hague Convention, art. 13, 19 I.L.M. at 1502.
Under these provisions, an applicant seeking return of a
child must demonstrate by a preponderance of the evidence that
he or she had and was exercising custody rights over the child
under the country of origin’s laws and that the country of origin
was the child’s habitual residence. 42 U.S.C. § 11603(e)(1)
(2000); Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir. 1995).
Upon such a showing, the burden shifts to the party that
wrongfully removed the child to show by clear and convincing
evidence that the Article 13(b) exception applies, 42 U.S.C. §
11603(e)(2)(A) (2000);
Feder, 63 F.3d at 222, or by a
preponderance of the evidence that the Article 13(a) exception
applies. 42 U.S.C. § 11603(e)(2)(B). Only Article 13(b) is at
issue here.
Each of the applicant’s initial burdens — custody and
habitual residence — requires the “application of a legal
standard . . . to historical and narrative facts,” and thus an
appeals court applies a “mixed standard of review, accepting the
district court’s historical or narrative facts unless they are clearly
erroneous, but exercising plenary review of the court’s choice of
and interpretation of legal precepts and its application of those
precepts to the facts.” Id. at 222 n.9, 225; see Baxter v. Baxter,
423 F.3d 363, 367 (3d Cir. 2005) (same). We have not
explicitly articulated a standard of review for the opposing
party’s burden of proving by clear and convincing evidence that
an exception applies, but we agree with other circuit courts that,
16
for all issues arising under the Convention, a District Court’s
determination of facts is reviewed for clear error and its
application of those facts to the law, as well as its interpretation
of the Convention, are reviewed de novo. See Blondin v.
Dubois, 238 F.3d 153, 158 (2d Cir. 2001) (“Blondin II”); Shalit
v. Coppe,
182 F.3d 1124, 1127 (9th Cir. 1999); Friedrich v.
Friedrich,
78 F.3d 1060, 1064 (6th Cir. 1996) (“Friedrich II”).
B. Wrongful Removal
As a starting point, we consider the threshold question of
whether the removal of Arianna from Argentina was “wrongful”
under Article 3 of the Convention. See Hague Int’l Child
Abduction Convention: Text and Legal Analysis, 51 Fed. Reg.
10,494, 10,506 (Mar. 26, 1986) (hereinafter “Hague Convention
Analysis”) (“The obligation to return an abducted child to the
person entitled to custody arises only if the removal or the
retention is wrongful within the meaning of the Convention.”).
We must therefore determine whether the District Court erred in
finding that Adan had custody rights over Arianna at the time
she was removed, that Adan was exercising those rights, and
that Arianna was a habitual resident of Argentina.4 As noted
4
At oral argument, counsel for Adan asserted that Avans
waived any challenge to the District Court’s custody
determination because Avans did not raise the issue in her brief
to this Court. See Laborers’ Int’l Union of N. Am., AFL-CIO
v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1998) (“An
issue is waived unless a party raises it in its opening brief . . .
17
above, Adan must prove these by a preponderance of the
evidence. See Feder 63 F.3d at 222.
1. Rights of Custody and Access
The Convention defines custody rights as “rights relating
to the care of the person of the child and, in particular, the right
to determine the child’s place of residence.” Hague Convention,
art. 5(a), 19 I.L.M. at 1501. In determining custody, “the
Convention calls into play a State’s choice of law rules as well
as its internal custody rights laws.” Feder, 63 F.3d at 225. This
requires a careful examination of the country of origin’s custody
.”). While we agree with Adan that Avans’ brief is not a model
of clarity (unfortunately, Adan’s brief is even worse), Avans has
challenged the District Court’s finding that Adan had and was
exercising custody rights in Argentina at the time Arianna was
removed. Avans states in her brief that the District Court’s
custody determination is “contested” because, she argues, the
agreement between the parties gave her “full custody” in
Argentina and, moreover, Adan was not exercising any alleged
custody rights inasmuch as he was not providing child support
and was only “sporadically visiting with the child.” Avans’ Br.
at 19. Although we have held that a “passing reference to an
issue” is not sufficient to raise the issue on appeal,
id. (citation
and internal quotation marks omitted), Avans “presented
substantive argument in support of [her] claim,” Voci v.
Gonzales,
409 F.3d 607, 609 n.1 (3d Cir. 2005), and we
therefore deem the issue properly presented for review.
18
laws to determine whether the party seeking the child’s return
had custody rights in that country and was exercising them,
within the meaning of that country’s law, at the time the child
was removed. Id. Once it is determined that a party had valid
custody rights under the country of origin’s laws, “[v]ery little
is required of the applicant in support of the allegation that
custody rights have actually been or would have been exercised.
The applicant need only provide some preliminary evidence that
he or she actually exercised custody of the child, for instance,
took physical care of the child.” Hague Convention Analysis,
51 Fed. Reg. at 10,507.
The duty of the host forum — in this case, the District
Court — to make a threshold determination of custody rights
under the country of origin’s laws is not novel; indeed, it
comports with the federal courts’ frequent responsibility to
examine the law and choice of law rules of another forum to
determine the rights and duties of litigants. Such a
determination does not, of course, bind the other forum to reach
the same result in future litigation, nor does it run afoul of
comity concerns. Article 3’s requirement that the host country
determine custody rights under the country of origin’s law to
ascertain whether removal was “wrongful,” and therefore
whether the Convention applies, is a straightforward question of
law of the sort federal courts routinely encounter, and thus
presents no unusual burden on the competence of our courts.
That said, the Convention does not allow the state to
19
which a child has been wrongfully taken actually to decide who
should have custody, see Hague Convention, art. 16, 19 I.L.M.
at 1503, and thus a determination by the host country that a
party had custody rights in the country of origin for purposes of
determining whether removal was wrongful under the
Convention has no bearing on the merits of a subsequent
custody determination in the country of origin once the child is
returned. Id. art. 19, 19 I.L.M. at 1503; see
Feder, 63 F.3d at
221 n.5 (same); Hague Convention Analysis, 51 Fed. Reg. at
10,511 (“[A] decision under the Convention concerning the
return of the child shall not be taken to be a determination on the
merits of any custody issue. It follows that once the factual
status quo ante has been restored, litigation concerning custody
or visitation issues could proceed . . . in the child’s State of
habitual residence.”). The host country must therefore
determine, as a threshold matter, whether the party seeking the
child’s return had valid custody rights under the country of
origin’s laws, and exercised those rights, to assure that the
Convention is applicable. But, as indicated, this determination
does not actually decide the custody question, and therefore
does not resolve any subsequent custody adjudication in the
country of habitual residence.
The Convention also contrasts “rights of custody,” which
may be vindicated by an order that the child be returned to the
country of habitual residence, with “rights of access,” which
may not. Hague Convention, art. 5, 19 I.L.M. at 1501; see
Whallon v. Lynn, 230 F.3d 450, 455 n.3 (1st Cir. 2000).
20
“[R]ights of access” are those rights “to take a child for a limited
period of time to a place other than the child’s habitual
residence.” Hague Convention, art. 5(b), 19 I.L.M. at 1501; see
42 U.S.C. § 11602(7) (“[T]he term ‘rights of access’ means
visitation rights.”). The Convention affords limited remedies for
a parent who removes a child from a country in contravention of
another’s parent’s rights of access, such as “direct[ing] the
person who . . . prevented the exercise of rights of access . . . to
pay necessary expenses incurred by or on behalf of the applicant
. . . .” Hague Convention, art. 26, 19 I.L.M. at 1504. “[S]uch
remedies do not include an order of return to the place of
habitual residence,” however. Whallon, 230 F.3d at 455 n.3
(emphasis added).
2. Habitual Residence
The determination of habitual residence “is not
formulaic; rather, it is a fact-intensive determination that
necessarily varies with the circumstances of each case.”
Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir. 2004). When
a child is too young to have an intent regarding her habitual
residence, the touchstone inquiry is “shared parental intent.”
Id.
at 548. As we explained in Feder,
“[a]ll that the law requires is that
there is a settled purpose. That is
not to say that the [person] intends
to stay where he is indefinitely.
21
Indeed his purpose while settled
may be for a limited period.
Education, business or profession,
employment, health, family or
merely love of the place spring to
mind as common reasons for a
choice of regular abode, and there
may well be many others. All that
is necessary is that the purpose of
living where one does has a
sufficient degree of continuity to be
properly described as settled.”
63 F.3d at 223 (quoting In re Bates, No. CA 122-89, slip op. at
10 (High Ct., Fam. Div.) (Eng. 1989)).
3. Analysis
Turning first to the question of habitual residence, Adan
no doubt proved by a preponderance of the evidence that
Argentina is Arianna’s country of habitual residence. Though
she was born in the United States, Arianna moved to Argentina
with her mother and father when she was three months old.
With the exception of two brief visits to relatives in the United
States in May 2001 and May 2003, Arianna lived in Argentina
with her parents until her mother removed her to the United
States in February 2004. Her parents are both from Argentina
and her father is an Argentine citizen. Her parents were
22
employed in Argentina, had homes in Argentina, and Arianna
was in school in Argentina. Under these circumstances, Adan
and Avans clearly had a “settled purpose” and “shared parental
intent” to raise their daughter in Argentina, and that country is
therefore her habitual residence.
The question of custody is more difficult. The record
does not reveal any court-approved agreement or adjudication
of custody in Argentina; rather, it appears the parties had an
informal agreement between themselves, but the record is
unclear on the terms of this agreement — aside from noting that
it gave Avans “custody” and established a schedule for Adan to
visit Arianna — and the parties have not provided us with the
agreement in English. Moreover, there is no evidence whether
the agreement was properly memorialized under Argentine law,
or whether the parties’ chaotic relationship caused the
agreement to be reconsidered or repudiated. Indeed, Adan
conceded in his testimony before the District Court that he did
not consider the agreement binding because it “was not ratified
in front of a judge,” and that the agreement “didn’t last long
really.” The parties have not cited, and the District Court did
not mention, any provisions of Argentine law related to the
creation, terms, or enforceability of such agreements, and we
therefore have insufficient information to conclude whether the
agreement had “legal effect under the law of [Argentina],” as
required by Article 3 of the Convention.
23
We also note that, if the agreement is enforceable under
Argentine law, it appears to vest custody rights in Avans and to
afford Adan merely a right of access via visitation, which Adan
may not vindicate through an order that Arianna be returned to
Argentina. See Whallon, 230 F.3d at 455 n.3. We do not
conclusively determine this because, as we have said, we do not
know the precise terms of the agreement, if it was in effect at the
time Arianna was removed, or if Argentine law provides a
different allocation of rights. We merely note that there is a
significant question in this case as to what type of rights Adan
has.
As for other provisions of Argentine law, although the
parties made passing — and, indeed, contradictory — references
to a section of the Argentine code during the District Court
hearing, they have not provided us with any citations to
Argentine legal authorities and the District Court did not
examine, rely on, or even mention Argentine law in determining
whether Adan had lawful custody rights over Arianna at the
time of her removal. Moreover, we have been unable to locate
relevant provisions of the Argentine code in English. The little
information we have obtained on Argentine family law is not
helpful because it is in some respects contradictory and, more
importantly, the factual record does not reveal the terms or
status of the parties’ custody arrangement.5
5
For example, it appears that in cases of divorce in
Argentina “[c]hildren under five years of age are given to the
24
Moreover, we note that the mere fact Adan filed a
criminal complaint against Avans in Argentina for kidnaping the
child is insufficient, without more, to establish that Adan had
custody of the wife,” Martindale-Hubbell Int’l L. Digest ARG-
11 (2004). It is thus possible that, although the parties were
never married, an Argentine court would find that Avans had
sole custody of Arianna at the time of removal — depending, of
course, on the terms and enforceability of the parties’ custody
agreement. Conversely, it appears that “[w]hen a parent wishes
to relocate with the child in a foreign country, he will need to
acquire the court’s authorization when a legal custody
arrangement has been settled, [as well as] when a parent has
only physical custody of the minor, since according to article
264 of the Argentine Civil Code, consent of both parents is
required in order to leave the country.” Directorate of Legal
Research, Law Library of Congress, Report for Congress –
Hague Convention on International Child Abduction 18 (2004).
Therefore, Avans apparently would have needed court
permission to take Arianna out of Argentina, although it is
unclear whether this requirement confers any “custody rights”
on Adan for purposes of Article 3. It is also highly probable that
there is an express provision in Argentine law that sets out the
default custody rights that unmarried parents share, and it is also
possible that the terms of the parties’ agreement (whatever they
may be) are enforceable under Argentine law and therefore
dispositive. All of these outstanding questions highlight the fact
that, based on the record before us, we cannot determine what
rights — custody, access, or otherwise — Adan enjoyed in
Argentina.
25
custody rights. He has not provided any evidence, for example,
that custody rights are a necessary element of standing to bring
such a complaint, or that the Argentine authorities’ acceptance
of such a complaint necessarily establishes that he had such
rights.
The District Court, for its part, merely found that Adan
“furnished and maintained contact with the child during her stay
in Argentina” because he paid for some of the child’s expenses
and saw the child on a fairly regular basis. The Court therefore
concluded it was appropriate to move directly to the question of
“whether or not [Avans] has proved clearly and convincingly
that the exceptions to . . . being required to return the child to
Argentina[] obtain.” There is not, however, any indication from
the record or from any of the available legal sources on
Argentine family law that “furnish[ing] and maintain[ing]
contact” with a child is sufficient to create valid custody rights
in Argentina. We therefore conclude that the District Court
erred in finding that Adan satisfied his burden of proof as to his
custody rights under Argentine law.
In light of the District Court’s failure to consider this
issue, we are compelled to vacate its June 7, 2005 order and
remand the case for further factfinding to determine: (1) what is
the custody law of Argentina; (2) what are the terms of the
parties’ agreement regarding custody of Arianna; (3) whether
that agreement is enforceable under Argentine law; and (4)
under the agreement (or, if the agreement is not enforceable,
26
Argentine family law), whether Adan had custody rights or mere
rights of access, and whether he was validly exercising those
rights at the time Arianna was removed. Upon the development
of a proper factual record, we shall be in a better position to
review the District Court’s factual and legal conclusions. We
further note that, pursuant to Article 15 of the Convention, the
District Court may request that the parties obtain from the
Argentine courts a determination of whether the removal of
Arianna from that country was wrongful under the Convention,
which would necessarily include an adjudication of Adan’s
custody rights under Argentine law at the time she was removed.
See Hague Convention, art. 15, 19 I.L.M. at 1503. Although
such a request is within the District Court’s discretion, we are of
the opinion that a determination of Adan’s custody rights at the
time of removal by an Argentine court (provided, of course, that
the Argentine courts have authority under Argentine law to
make such a determination at this stage) would be very helpful
in properly determining the wrongfulness of Arianna’s removal.
C. The Article 13(b) Exception
If Adan does not prove by a preponderance of the
evidence that he had valid custody rights over Arianna in
Argentina, that would be the end of the matter; the Convention
would not apply and Adan would have no basis on which to
seek Arianna’s return. If, however, Adan satisfies his burden
and establishes that he had custody rights in Argentina, the
burden would shift to Avans to prove by clear and convincing
27
evidence that the Article 13(b) exception applies. See Feder, 63
F.3d at 222. Because we conclude that the District Court erred
in its analysis of the alleged grave risk of harm to Arianna, we
request that it address those deficiencies on remand if it
concludes that Adan has satisfied his burden of establishing
custody rights.
1. Grave Risk of Harm
The Convention’s Article 13(b) exception is “narrowly
drawn.” See Feder, 63 F.3d at 226. “Were a court to give an
overly broad construction to its authority to grant exceptions
under the Convention, it would frustrate a paramount purpose of
that international agreement — namely, to ‘preserve the status
quo and to deter parents from crossing international boundaries
in search of a more sympathetic court.’” Blondin v. Dubois,
189
F.3d 240, 246 (2d Cir. 1999) (“Blondin I”) (quoting Friedrich v.
Friedrich,
983 F.2d 1396, 1400 (6th Cir. 1993) (“Friedrich I”));
see
Baxter, 423 F.3d at 367 (“[T]he Convention’s procedures are
designed to restore the status quo prior to any wrongful removal
or retention, and to deter parents from engaging in international
forum shopping in custody cases.”). As the U.S. State
Department has explained, an
“intolerable situation” was not
intended to encompass return to a
home where money is in short
supply, or where educational or
28
other opportunities are more limited
than in the requested State. An
example of an “intolerable
situation” is one in which a
custodial parent sexually abuses the
child. If the other parent removes
or retains the child to safeguard it
against further victimization, and
the abusive parent then petitions for
the child’s return under the
Convention, the court may deny the
petition. Such action would protect
the child from being returned to an
“intolerable situation” and
subjected to a grave risk of
psychological harm.
Hague Convention Analysis, 51 Fed. Reg. at 10,510; Baxter,
423 F.3d at 373 (same); see Blondin
II, 238 F.3d at 162 (noting
that a “grave risk of harm” encompasses “situations in which the
child faces a real risk of being hurt, physically or
psychologically, as a result of repatriation,” but not “situations
where repatriation might cause inconvenience or hardship,
eliminate certain educational or economic opportunities, or not
comport with the child’s preferences”).
There is little question that, under this standard, the
abuse, sexual and otherwise, that Avans contends Adan has
29
inflicted on Arianna would, if true, qualify as an intolerable
situation and grave harm for purposes of Article 13. The
question, however, becomes whether Avans produced clear and
convincing evidence of these allegations, and whether she
established, as she must, that “‘the court[s] in the country of
habitual residence, for whatever reason, may be incapable or
unwilling to give the child adequate protection.’” Blondin II,
238 F.3d at 162 (quoting Friedrich
II, 78 F.3d at 1069)
(emphasis omitted).
We also note that, in considering the Article 13(b)
exception, a court must “take into account any ameliorative
measures (by the parents and by the authorities of the state
having jurisdiction over the question of custody) that can reduce
whatever risk might otherwise be associated with a child’s
repatriation.” Blondin I, 189 F.3d at 248. Therefore, even if the
court finds that authorities in the country of habitual residence
are capable of safeguarding the child, it must still carefully tailor
its order to counter whatever risk of harm exists — including
returning the child in the custody of the parent who removed the
child — “thus reducing or eliminating the risk of harm that
might otherwise be associated with granting [the] petition.”
Id.
at 249.
2. Analysis
Although the District Court found Avans more credible
than Adan and stated that Adan’s demeanor was “quite
30
consistent with the manner in which he is portrayed by the
respondent [and is] not inconsistent with what she claims he
did,” the District Court nonetheless found that Avans did not
sustain her burden of proof because: (1) her allegations of
Adan’s actions toward Arianna, even if true, were not evidence
of child abuse; (2) she did not provide corroboration of the child
abuse, such as medical examinations or police reports from
Argentina; and (3) her testimony that Adan had effectively
rigged the Argentine judiciary and police against her through
bribery was not substantiated. Although we express no opinion
on whether the quantum of Avans’ evidence proves a grave risk
of harm, we do believe the Court abused its discretion in the
manner in which it considered her evidence and tailored its
order. We therefore direct it to remedy these errors on remand
if it concludes Adan has sustained his burden of proving he had
and was exercising valid custody rights under Argentine law at
the time Arianna was removed.
As noted, the District Court Judge made no written
findings of fact, and therefore we must extract findings from his
oral decision at the hearing. The transcript reveals that the
Court did not reject Avans’ testimony that she had been
repeatedly abused, raped, and threatened with a gun,6 and the
6
We note that the evidence of Adan’s abuse of Avans is
relevant to the District Court’s determination of whether
returning Arianna to Argentina would expose the child to a
grave risk of harm. See, e.g., Walsh v. Walsh, 221 F.3d 204,
31
Court did not mention Avans’ testimony that Arianna would
return from even brief visits with her father with wet hair and
would tell her mother that Adan bathed with her, Avans’ further
testimony and accompanying police report that Adan screamed
in the child’s ear to force Avans to agree to return to Argentina,
or the photograph Adan took of Arianna with her underwear
covering her face. The Court did reject portions of Avans’
testimony that Adan had abused Arianna, not because it found
that the incidents she described did not occur but because: (1)
Arianna’s statement that her father was “putting something hot
in her butt” “c[ould] be anything”; (2) Avans’ discovery of a
pubic hair in Arianna’s vagina “means nothing” because in the
absence of medical evidence it could have resulted from “the
child . . . lying on a dirty bed”; and (3) Arianna’s statement that
her father “love[d] [her] with his tongue” was “not significant”
because parents sometimes lick their children and “sometimes
the tongue may have gone too far.”
In our view, the District Court’s analysis of Avans’
testimony is both incomplete (in that it does not take into
account large portions of her testimony that suggest a grave risk
220 (1st Cir. 2000) (holding that such evidence is relevant when
considering whether a grave risk of harm to a child exists
because “credible social science literature establishes that serial
spousal abusers are also likely to be child abusers” and “both
state and federal law have recognized that children are at
increased risk of physical and psychological injury themselves
when they are in contact with a spousal abuser”).
32
of harm to Arianna if she is returned to Argentina) and reflects
an overly compartmentalized view of child abuse. Even
assuming there is an innocent explanation for each allegation of
abuse in isolation, taken together they are far less easily
explained. Perhaps it is true that a child’s report that her father
put his tongue in her mouth is potentially innocent, but when
coupled with reports that he also “put[] something hot in her
butt,” took baths with her on several occasions, raped her
mother in front of her, took a photograph of her with her
underwear covering her face and mailed it to her mother, and
that a pubic hair was discovered in the child’s vagina, such an
incident is far less susceptible to innocent explanation. Just as
a finder of fact in state court must analyze the “totality of the
circumstances” in determining the credibility of child abuse
allegations in a criminal case, see, e.g., State v. P.H., 840 A.2d
808, 819-20 (N.J. 2004), so too is it appropriate that a District
Court consider the totality of the circumstances in determining
whether alleged abuse occurred in a case brought under the
Convention. The District Court’s treatment of the child abuse
allegations in this case leads us to conclude that it did not
consider the totality of the circumstances as we understand that
phrase.7
7
The Supreme Court has noted, albeit in a different
context, that reviewing the totality of circumstances “precludes
[a] divide-and-conquer analysis” under which a court
“evaluat[es] and reject[s] . . . factors in isolation from each
other.” United States v. Arvizu, 534 U.S. 266, 274 (2002)
(reviewing the totality of the circumstances to determine
33
We note a similar problem with the District Court’s
consideration of Avans’ contention that the Argentine courts and
authorities were unable or unwilling to protect her. The Court
concluded that Avans did not produce sufficient evidence that
“Argentinian courts are without the skill, the expertise, or the
concern to deal with the matter involving these parties.” Avans
testified about her numerous experiences with Argentine law
enforcement when police officers refused to offer her any
assistance, and the fact that Adan violated a temporary
restraining order issued by an Argentine court after the police
refused to enforce it. Adan did not contest these allegations in
his testimony, and the District Court did not discount Avans’
testimony; rather, the Court found Avans’ allegations related to
Adan’s alleged bribery of judges and police officers to be
unsubstantiated. It therefore failed to consider and reject the
majority of Avans’ proof related to the inaction of Argentine
courts and police. Although she bore the burden of setting forth
clear and convincing evidence to substantiate her claims under
Article 13, the District Court bore the responsibility to evaluate
adequately her evidence and explain in a reasoned way why that
evidence was unavailing. Its analysis in this case falls short of
that standard.
whether Border Patrol officers had reasonable suspicion to
initiate an investigatory stop of defendant’s vehicle). Indeed,
the Court noted that “[a]lthough each of the series of acts was
‘perhaps innocent in itself,’ we [have] held that, taken together,
they ‘warranted further investigation.’” Id. (quoting Terry v.
Ohio,
392 U.S. 1, 22 (1968)).
34
If, upon proper consideration of these matters, the
District Court concludes that Avans has not satisfied her burden
of proving a grave risk of harm to Arianna or that the Argentine
authorities will not protect her, it should enter an appropriate
order requiring Arianna’s return to Argentina. This requires
careful tailoring to ameliorate any risk of harm to Arianna that
may result from granting the petition and a consideration of
alternative arrangements that will safeguard her well-being
pending effective action by Argentine authorities. The District
Court’s June 7, 2005 order was not satisfactory in this regard.
It simply stated that “Respondent shall return the child to
Argentina immediately,” but did not state in whose custody she
should be returned, or what actions should be taken to assure
that she is safe. Indeed, based on the District Court’s order, we
have no way of knowing what would have happened to Arianna
upon her return to Argentina, which is especially troubling given
the distressing allegations at issue, many of which the District
Court Judge accepted or, at least, did not reject. Although the
Convention seeks to facilitate the prompt return of wrongfully
removed children to their country of habitual residence, it does
not condone deciding that a child is another country’s problem
and dumping her there, and nor do we.
Given the state of the factual record, we instruct the
District Court on remand to: (1) make detailed, written findings
of fact on all allegations of abuse and harm visited upon Avans
and Arianna by Adan, and on the protective efficacy of the
Argentine courts and police, evaluating the witnesses’ complete
35
testimony and all other evidence in the record;8 (2) consider the
totality of circumstances related to the alleged child abuse,
rather than simply considering and explaining away each
allegation in isolation; and (3) if the Court decides that Avans
has not satisfied her burden of proving a grave risk of harm and
the inability of Argentine authorities to protect the child,
carefully tailor an order designed to ameliorate, as much as
possible, any risk to Arianna’s well-being.9 We reiterate that
8
We do not, of course, hold that it is reversible error for
a district court to make oral findings of fact rather than written
ones. But in this particular case, we believe the complicated
factual history calls for a formal, written analysis of the full field
of evidence to allow us to discharge properly our review
function.
9
In his oral decision, the District Judge indicated that,
even if we conclude that he erred in finding no grave risk of
harm to Arianna in Argentina, he would still be inclined to
exercise his discretion to return Arianna to Argentina because,
in his view, the matter “is best determined by Argentinian
courts.” The District Court is correct that, even if Avans
succeeds in establishing a grave risk of harm, it still retains
discretion to order Arianna returned to Argentina. See Feder, 63
F.3d at 226; Hague Convention Analysis, 51 Fed. Reg. at
10,509. We have no occasion on this appeal to consider
whether, on the facts of this case, such a decision would be an
abuse of discretion. That determination is, at this point,
speculative — and, more importantly, it would require us to
examine the terms of a new order that seeks to ameliorate any
36
such analysis is only necessary if the District Court determines
that Adan has satisfied his burden of proving, by a
preponderance of the evidence, that he had and was exercising
valid custody rights over Arianna at the time she was removed.
IV.
We are well aware that the Convention requires the
“prompt return of children wrongfully removed” and that we
must act “expeditiously” in doing so. Hague Convention, arts.
1(a), 11, 19 I.L.M. at 1501-02. The desire for a swift resolution
to this matter cannot, however, outweigh our duty to see that the
law is properly applied. For the reasons noted, we vacate the
District Court’s June 7, 2005 order and remand the case to that
Court with instructions to conduct further factfinding to
determine: (1) what is the custody law of Argentina; (2) what
are the terms of the parties’ agreement regarding custody of
Arianna; (3) whether that agreement is enforceable under
Argentine law; and (4) under the agreement (or, if the agreement
is not enforceable, Argentine family law), whether Adan had
custody rights or mere rights of access, and whether he was
validly exercising those rights at the time Arianna was removed.
risk to the child upon her return, which is a matter for the
District Court to consider on remand. We therefore leave this
question, and the general issue of when a district court may
exercise such discretion notwithstanding a grave risk of harm to
the child, for a future appeal when the issue is squarely
presented.
37
If, as a result of this factfinding, the District Court concludes
that Adan has satisfied his burden of proving that he had valid
custody rights over Arianna under Argentine law at the time
Arianna was removed, and was actually exercising those rights,
the District Court must then: (1) make detailed, written findings
of fact on all allegations of abuse and harm visited upon Avans
and Arianna by Adan, and on the protective efficacy of the
Argentine courts and police, evaluating the witnesses’ complete
testimony and all other evidence in the record; (2) consider the
totality of circumstances related to the alleged child abuse,
rather than simply considering and explaining away each
allegation in isolation; and (3) if the Court decides that Avans
has not satisfied her burden of proving a grave risk of harm and
the inability of Argentine authorities to protect the child,
carefully tailor an order designed to ameliorate, as much as
possible, any risk to Arianna’s well-being. Our stay of the
District Court’s June 15, 2005 order shall remain in place until
further order.
38
