FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                             June 27, 2019
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 HECTOR ARMANDO GIL-LEYVA,

       Plaintiff - Appellee,

 v.                                                           No. 18-1209
                                                    (D.C. No. 1:17-CV-01406-KLM)
 SHENOA TALEESE LESLIE,                                        (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
                   _________________________________

      Subject to limited exceptions, the Hague Convention on the Civil Aspects of

International Child Abduction (Hague Convention), Oct. 25, 1980, T.I.A.S. No.

11,670, and its implementing legislation, the International Child Abduction Remedies

Act (ICARA), 22 U.S.C. § 9001 et seq., require courts in the United States to order

children returned to their countries of habitual residence if the children have been

wrongfully removed to or retained in the United States. Here, Defendant-Appellant



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Shenoa Taleese Leslie and Defendant-Appellee Hector Armando Gil-Leyva agree

that Ms. Leslie has since May 2016 wrongfully retained their two minor children,

H.M.G. and H.F.G., in the United States and outside Canada, the children’s country

of habitual residence. At issue is whether the district court erred in determining that

Ms. Leslie failed to show by clear and convincing evidence that the children face a

“grave risk” of harm if returned to Canada. We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm, recognizing that Ms. Leslie may provide evidence of harm and

argue for custody of the children in the appropriate Canadian court.1

                                   BACKGROUND

      Ms. Leslie, a U.S. citizen, and Mr. Gil-Leyva, a Canadian citizen, met in

Colorado in late 2007 and began cohabiting there in March 2008. Ms. Leslie and Mr.

Gil-Leyva never formally married. About September 2009, they relocated to Alberta,

Canada,2 where their children, H.M.G. and H.F.G., were born.3 Ms. Leslie testified



      1
       In a motion filed January 15, 2019, Mr. Gil-Leyva requests leave to
supplement the record on appeal. We grant the request and admit Mr. Gil-Leyva’s
supplemental appendix.
      2
         Ms. Leslie testified that Mr. Gil-Leyva had entered the U.S. on a visitor’s
visa, which he overstayed, and that he had committed a theft with a minor for which
he was arrested and placed in removal proceedings. Ms. Leslie testified that Mr. Gil-
Leyva accepted a voluntary departure to Canada and explained that she went with
him there to “make sure that he followed the voluntary departure.” Appellant’s App.
vol. 3 at 578:2. Mr. Gil-Leyva simultaneously disputes these allegations and admits
undergoing “criminal & immigration removal proceedings.” Compare Appellee’s Br.
at 12, with 

      3
        At the commencement of this appeal, H.M.G. and H.F.G. were six and three
years old, respectively.
                                            2
that she lived in Canada like a “human trafficking victim.” Appellant’s App. vol. 3 at

579:25. She testified that she endured physical abuse, occasionally in front of the

children, and that she witnessed Mr. Gil-Leyva abuse alcohol, marijuana, and

prescription narcotics. Regarding the children, she testified that Mr. Gil-Leyva

spanked them, got angry and threw objects in their vicinity, and neglected their basic

needs when left alone with them. She further testified that Mr. Gil-Leyva allowed

unsafe living conditions, with non-child-resistant bottles of prescription narcotics,

power tools, deconstructed machine parts, solvents, and other hazardous items lying

in the home, some of which the children played with. And, she testified about

noxious fumes in the home from Mr. Gil-Leyva cooking solvents, pennies, and

vehicle parts in the kitchen. Mr. Gil-Leyva disputes many of these allegations.4

      In November 2015, Ms. Leslie left home with the children and attempted to

obtain passports for them at the U.S. Consulate in Calgary.5 When the Consulate

informed her that she needed the father’s written consent for the application, Ms.

Leslie arranged to attend a couple’s counseling session with Mr. Gil-Leyva on the



      4
         Mr. Gil-Leyva generally disputes these allegations with cursory assertions
that Ms. Leslie is lying, though he also highlights some noteworthy inconsistencies
between Ms. Leslie’s account and her testimony in previous state-court proceedings.
Because Mr. Gil-Leyva appears pro se, we liberally construe these arguments. See de
Silva v. Pitts, 

, 1283 n.4 (10th Cir. 2007).
      5
        Ms. Leslie asserts that she “spent months making a safe-exit plan,” which she
executed in November 2015. Appellant’s Br. at 18. Mr. Gil-Leyva replies that there’s
no evidence Ms. Leslie made any plans to leave before November 2015. The record
is indeed silent on this issue, but the dispute is immaterial.

                                           3
condition that he consent to the passports. Mr. Gil-Leyva initially agreed, but upon

inspecting the consent form at the Consulate, he refused to sign. Fearing Ms. Leslie

would still try to leave the country, Mr. Gil-Leyva then returned home and reported

an abduction.6 Meanwhile, Ms. Leslie filed a claim for emergency custody in the

Provincial Court of Alberta. But she withdrew the petition and returned home with

the children7 after learning that the process would take several months.8

      Several months later, in May 2016, Ms. Leslie received word that her mother

had been diagnosed with recurrence of a cancer for which she had been treated in

2009. Seeing an opportunity, Ms. Leslie convinced Mr. Gil-Leyva to give his consent

for the children’s passports so they could visit her ailing mother for a week and a

half. About a week after arriving in Colorado, however, Ms. Leslie informed Mr. Gil-

Leyva that she intended to stay beyond the agreed-upon date. Then, in October 2016,

Ms. Leslie told Mr. Gil-Leyva that she would not return to Canada with the children.

Mr. Gil-Leyva promptly booked a flight to Colorado,9 hoping to discuss the parties’


      6
        Police declined to treat the situation as an abduction, noting that the couple
had no “reported domestic incidents” and that “child and family services have not yet
heard from this family.” See Appellant’s App. vol. 1 at 73.
      7
        Mr. Gil-Leyva alleges that authorities performed a welfare check after Ms.
Leslie returned home, but he provides no authority for that assertion.
      8
        Ms. Leslie alleges that Mr. Gil-Leyva’s “erratic, frightening, dangerous, and
negligent behaviors continued” after she returned home. Appellant’s Br. at 19.
      9
         Ms. Leslie avers that Mr. Gil-Leyva booked the trip despite that he “had been
banned from the U.S. for ten years.” Appellant’s Br. at 19. Ms. Leslie appears to base
this claim on speculation alone. See 

n.3 (reasoning that Mr. Gil-Leyva had

                                           4
relationship in person. Ms. Leslie, in turn, obtained a protection order against Mr.

Gil-Leyva10 which restricted him to supervised visitations with the children. She then

initiated state-court proceedings seeking full custody of the children.11

      On June 9, 2017, Mr. Gil-Leyva filed this pro se action12 in federal district

court, seeking an order returning H.M.G. and H.F.G. to Canada under the Hague

Convention and the ICARA. With the parties’ agreement, a magistrate judge presided



“likely accrued more than one year of unlawful presence in the U.S.” after voluntarily
departing in 2009 and “is therefore inadmissible to the U.S. for ten years,” according
to 8 U.S.C. § 1182(a)(9)(B)(i)(II)) (emphasis added). Mr. Gil-Leyva, for his part,
denies he “was ever barred from entry to the United States.” Appellee’s Br. at 16.
      10
          Ms. Leslie initially obtained a temporary protection order when Mr. Gil-
Leyva allegedly made “threats of physical violence against” her and “threatened to
commit suicide.” Appellant’s Br. at 20; but see Appellee’s Br. at 16 (asserting that
these threats “never happened”). In a hearing with both parties present, a Garfield
County, Colorado judge then made the protection order permanent. Mr. Gil-Leyva
requested unsupervised-visitation rights at the hearing, but Ms. Leslie expressed
concern for the children’s “safety and for their mental health” and fear that Mr. Gil-
Leyva might refuse to “return the children at the end of visitation.” Appellant’s App.
vol. 2 at 398–99. Taking Ms. Leslie’s concerns into account, the court ordered
supervised visitation. On appeal, Ms. Leslie goes further, arguing that the judge
found Mr. Gil-Leyva’s “harm to the Children so severe that he ordered him limited to
supervised visits with the Children.” Appellant’s Br. at 20–21. Though Ms. Leslie
may read the order that way, Mr. Gil-Leyva is correct that the hearing’s transcript
doesn’t expressly reflect such a determination.
      11
          In her state-court petition, Ms. Leslie expressed “serious concerns” about
Mr. Gil-Leyva’s “ability to care for himself or to parent safely,” citing his alleged
“erratic, manic and abusive behavior.” See Appellant’s App. vol. 1 at 248. Mr. Gil-
Leyva represents that those proceedings have been stayed under Article 16 of the
Hague Convention.
      12
        Mr. Gil-Leyva applied for and was appointed pro bono counsel, but counsel
withdrew after a conflict arose. Mr. Gil-Leyva continues to represent himself on
appeal.
                                           5
over the entire case. In advance of a hearing scheduled for January 10, 2018, Mr. Gil-

Leyva moved to appear via contemporaneous transmission under Rule 43(a) of the

Federal Rules of Civil Procedure. The judge denied the motion on grounds that, as a

pro se plaintiff, Mr. Gil-Leyva must litigate the case in person. Mr. Gil-Leyva took

no further action until the day before the hearing, when he requested a four-to-six-

week continuance so that he could make appropriate travel and legal preparations. He

then telephoned into the hearing, despite the order denying his Rule 43(a) motion.

The judge initially heard argument on whether to continue the hearing. She then

denied a continuance and proceeded with the hearing as scheduled, overruling Ms.

Leslie’s objection to the reliability of Mr. Gil-Leyva’s telephonic testimony.

      On April 17, 2018, the magistrate judge issued a written order granting Mr.

Gil-Leyva’s request to return H.M.G. and H.F.G. to Canada. Ms. Leslie timely

appealed and requested a stay of the order under Rule 62(c) of the Federal Rules of

Civil Procedure. The judge granted the motion and stayed the order pending

resolution of this appeal.

                                     ANALYSIS

      Ms. Leslie raises two issues on appeal. First, she argues that the magistrate

judge abused her discretion in permitting Mr. Gil-Leyva to appear telephonically at

the January 10, 2018, evidentiary hearing after denying his Rule 43(a) motion to

testify in that fashion. And second, she contends that the magistrate judge erred in

determining that H.M.G. and H.F.G. do not face a “grave risk” of harm if returned to

Canada. We address these issues in turn.

                                           6
I.     Contemporaneous Transmission

       We review for abuse of discretion a district court’s decision whether to allow

contemporaneous transmission under Rule 43(a). See Eller v. Trans Union, LLC, 

, 477 (10th Cir. 2013); see also Echo Acceptance Corp. v. Household Retail

Servs., Inc., 

, 1087 (10th Cir. 2001). “An abuse of discretion is defined

in this circuit as a judicial action which is arbitrary, capricious, or whimsical.”

Pelican Prod. Corp. v. Marino, 

, 1146 (10th Cir. 1990).

       Under Rule 43(a), a district court may allow remote testimony only “[f]or

good cause in compelling circumstances and with appropriate safeguards.” Fed. R.

Civ. P. 43(a). Mere inconvenience doesn’t satisfy this standard. In general, the rule

contemplates situations where a witness cannot appear in person “for unexpected

reasons, such as accident or illness[.]” Fed. R. Civ. P. 43(a) advisory committee’s

note to 1996 amendment. Other reasons “must be approached cautiously.” 

case, Mr. Gil-Leyva requested permission to testify remotely because

he “resides in British Columbia, Canada, and currently lacks the financial means to

travel to Colorado for the hearing.” Appellant’s App. vol. 1 at 264. The magistrate

judge denied this request, explaining that, as a pro se litigant, “the logistics of an

evidentiary hearing mandate that he appear in person . . . to litigate his case.” 

at 281. We see no error in this result, given that financial hardship isn’t the type of

“unexpected reason[]” that is “typically required in a showing of good cause for

telephonic testimony.” See 

. Nevertheless, at the hearing, the

judge permitted Mr. Gil-Leyva to appear telephonically, overruling Ms. Leslie’s

                                             7
objection to the testimony’s reliability. The judge made no express finding that good

cause justified departing from her prior ruling; she stated only that “[t]he hearing is

set for today, and it will go forward.” See Appellant’s App. vol. 3 at 523. Ms. Leslie

contends that this unexplained departure constituted an abuse of discretion.

      But Ms. Leslie overlooks the circumstances surrounding the departure. The

magistrate judge denied Mr. Gil-Leyva’s Rule 43(a) motion on December 15, 2017,

nearly a month before the January 10, 2018, hearing. Despite this ample notice, Mr.

Gil-Leyva waited until the day before the hearing to request four to six additional

weeks to make travel and legal preparations. Unable to resolve this eleventh-hour

request beforehand, the judge heard argument at the hearing, expressing concern that

a continuance would prejudice Ms. Leslie, who had “expended time, energy, and

money” to prepare for and attend the hearing. 

Ms. Leslie echoed this

concern in her argument, stressing that she had expended “ample resources and time”

and had traveled “over 160 miles in a pending snow storm” to get to the hearing. 

Ms. Leslie also worried that a continuance would simply prolong her

“mental anguish” in dealing with the case. 

With the benefit of this

argument, the judge then denied a continuance and admonished Mr. Gil-Leyva for

failing to make a diligent effort to prepare for and attend the hearing.

      It was against this backdrop that the magistrate judge decided to proceed with

the hearing and permit Mr. Gil-Leyva to testify remotely, notwithstanding the order

denying his Rule 43(a) motion. The judge’s rejection of Mr. Gil-Leyva’s continuance

motion predetermined this result—having denied that motion, the judge had to allow

                                            8
remote testimony. After all, a decision holding Mr. Gil-Leyva to the order requiring

his in-person attendance would have necessitated a continuance for him to travel

from Alberta to Colorado, which would have prejudiced Ms. Leslie. Surely, in these

circumstances, there was good cause to allow remote testimony. And, critically, Ms.

Leslie effectively advocated for this result when she argued against a continuance.

She cannot now claim that it was an abuse of discretion for the judge to honor her

request to proceed with the hearing as scheduled, despite Mr. Gil-Leyva’s absence.

See United States v. Deberry, 

, 1302 (10th Cir. 2005) (a party cannot

contend “that the district court erred in adopting a proposition that the party had

urged the district court to adopt”).

      The broader legal context in which this case arises reinforces this conclusion.

The Hague Convention provides that “[t]he judicial . . . authorities of Contracting

States shall act expeditiously in proceedings for the return of children.” T.I.A.S. No.

11,670, Art. 11; see also Chafin v. Chafin, 

, 180 (2013) (Ginsburg, J.,

concurring) (noting the Hague Convention’s aim to “facilitate custody adjudications,

promptly and exclusively” in the child’s country of habitual residence). This means

“a district court has a substantial degree of discretion in determining the procedures

necessary to resolve a petition filed pursuant to the Convention and ICARA.” West v.

Dobrev, 

, 929 (10th Cir. 2013). In fact, in this context, nothing requires

a court even to hold an evidentiary hearing. See 

a court that does

hold a hearing has some latitude to deviate from ordinary rules of procedure that

might delay a final resolution.

                                           9
      This is especially true in this case, which has been ongoing since June 2017.

The Hague Convention contemplates a judicial decision “within six weeks from the

date of commencement of the proceedings.” T.I.A.S. No. 11,670, Art. 11. Not only

had this case already been pending for six months when the magistrate judge held a

hearing in January 2018, but Mr. Gil-Leyva had asked to postpone the hearing for a

period equivalent to the initial timeline within which child-abduction cases should

resolve. Concerned that the case was passing the point of expeditious resolution, the

judge decided to proceed without Mr. Gil-Leyva being physically present. Given the

impetus to quickly resolve the abduction claim, the judge had good cause to proceed

in this manner.

      Finally, we are not persuaded that the magistrate judge committed reversible

error in failing to implement “appropriate safeguards” to ensure the reliability of Mr.

Gil-Leyva’s remote testimony. Appellant’s Br. at 25. In general, safeguards should

ensure (i) accurate identification of the witness; (ii) protection against any outside

influence on the witness; and (iii) accurate transmission. See Fed. R. Civ. P. 43(a)

advisory committee’s note to 1996 amendment. Here, the judge formally adopted no

safeguards, though Ms. Leslie doesn’t dispute that the person testifying was indeed

Mr. Gil-Leyva and that his testimony transmitted accurately. Regardless, in ordering

the children’s return to Canada, the judge found no need to consider Mr. Gil-Leyva’s

“version of these events,” because she found that Ms. Leslie’s allegations, standing

alone, had failed to show by clear and convincing evidence that Mr. Gil-Leyva

“presents a grave risk of harm to the children.” Appellant’s App. vol. 2 at 304–05.

                                           10
Mr. Gil-Leyva’s testimony, then, did not prejudice Ms. Leslie, and any error in the

judge’s failure to adopt “safeguards” was harmless.

II.   Child Abduction

      We therefore turn to Ms. Leslie’s challenge to the magistrate judge’s decision

ordering H.M.G. and H.F.G.’s return to Canada. On appeal from grant of a petition

for the return of a child under the Hague Convention and the ICARA, we review the

district court’s findings of fact for clear error and its conclusions about principles of

domestic, foreign, and international law de novo. Shealy v. Shealy, 

,

1121 (10th Cir. 2002); see 

n.3.

      A.     Prima Facie Case of Wrongful Retention

      We stress that neither the Hague Convention nor the ICARA provides a means

by which to decide “the merits of . . . child custody claims.” 22 U.S.C. § 9001(b)(4).

Instead, they seek “to prevent parents from abducting children in order to avoid the

jurisdiction of courts with whose rulings they do not (or believe they will not) agree.”

. The treaty and legislation are thus designed to “prevent an

international version of forum-shopping” and “defeat attempts to re-litigate custody

matters.” Navani v. Shahani, 

, 1128–29 (10th Cir. 2007). Consistent

with these aims, our review is “limited to the merits of the abduction claim.” 

(quoting Miller v. Miller, 

, 400 (4th Cir. 2001)).

      The Hague Convention and the ICARA mandate that “[c]hildren who are

wrongfully removed or retained . . . be promptly returned unless one of the narrow

exceptions set forth in the Convention applies.” 22 U.S.C. § 9001(a)(4). A child is

                                            11
wrongfully removed or retained outside a country if the petitioning parent shows by a

preponderance of evidence that (i) the child was “habitually resident” in that country;

(ii) the removal or retention breached the petitioning parent’s custody rights under

that country’s laws; and (iii) the petitioning parent was exercising those rights at the

time of the removal or retention. 

; see also 22 U.S.C.

§ 9003(e)(1)(A).

      Mr. Gil-Leyva, the petitioning parent, has made this showing. After all, Ms.

Leslie concedes that she has retained H.M.G. and H.F.G. outside Canada since May

2016, that Canada is the children’s country of habitual residence, that her actions

breached Mr. Gil-Leyva’s custody rights, and that Mr. Gil-Leyva was exercising

those rights at the time. See Appellant’s Br. at 7 (“[Ms. Leslie] admits to wrongfully

retaining the Children . . . .”). The sole issue on appeal is whether Ms. Leslie has

established an affirmative defense (or “exception”) to the children’s repatriation to

Canada.

      B.     Grave-Risk Defense to Repatriation

      Though she invoked two defenses at the district court, Ms. Leslie presses a

single defense on appeal: that she demonstrated by clear and convincing evidence a

“grave risk” that the children’s return to Canada would expose them to “physical or

psychological harm or otherwise place the[m] . . . in an intolerable situation.” See

T.I.A.S. No. 11,670, Art. 13(b); 22 U.S.C. §9001(e)(2)(A). As the term implies, a

“grave risk” means the “potential harm to the child must be severe, and the level of

risk and danger . . . very high.” 

(quoting Souratgar v. Lee, 720

                                           

, 103 (2d Cir. 2013)); see also Van De Sande v. Van De Sande, 

,

570 (7th Cir. 2005) (“The gravity of a risk involves not only the probability of harm,

but also the magnitude of the harm if the probability materializes.”).

      To satisfy her burden, Ms. Leslie testified that Mr. Gil-Leyva physically

abused her and the children when they lived with him and that he negligently cared

for the children and allowed unsafe living conditions in the home. The magistrate

judge recited these allegations and found them insufficient to establish by clear and

convincing evidence a grave risk of harm to the children. We agree.13

      First addressing physical abuse of Ms. Leslie, the magistrate judge recited Ms.

Leslie’s testimony that Mr. Gil-Leyva “slapped” and “shoved” her several times and

once “choked her with his hands,” causing her to break a blood vessel in her eye and

bruise on her neck. Appellant’s App. vol. 2 at 304.14 Though this testimony is deeply


      13
           As we noted in West, several of our sister circuits have found the exception
satisfied when a child would return to either (i) “a zone of war, famine, or disease” or
(ii) a situation of “serious abuse or neglect, or extraordinary emotional dependence,”
provided the destination country is “incapable or unwilling to give the child adequate
protection.” 

n.8. But we declined to decide the requisite showing
in our circuit because, whatever the standard, the respondent parent failed to meet it.
See 

We again defer deciding the standard because Ms. Leslie’s evidentiary
showing is insufficient.
      14
          Mr. Gil-Leyva denies that he abused Ms. Leslie, arguing that Ms. Leslie is
lying and noting that she has provided contradictory testimony regarding such abuse
in this case and in prior state-court proceedings. The evidence for Mr. Gil-Leyva’s
abuse is indeed mixed. For example, in the prior state-court hearing for a permanent
protection order, both Ms. Leslie and her sister testified that Mr. Gil-Leyva choked
Ms. Leslie when they lived in Colorado. But Ms. Leslie also testified that there was
no “physical violence” when the family lived in Canada, Appellant’s App. vol. 1 at
121, which seems to contradict her account in this litigation. In any case, we needn’t

                                          13
concerning, and undeniably will figure in any Canadian custody proceedings, spousal

abuse is relevant for Article 13(b) purposes only if it “seriously endangers” the child.

See Khan v. Fatima, 

, 787 (7th Cir. 2012). Evidence of a “clear and long

history of spousal abuse” may suffice to show a propensity for child abuse, see Walsh

v. Walsh, 

, 220 (1st Cir. 2000), but isolated incidents of abuse generally

demonstrate a risk of harm only to the spouse. At a minimum, the spouse must “draw

a connection” showing that the risk such abuse poses to her “constitute[s] a grave risk

to the children.” See Charalambous v. Charalambous, 

, 468 (1st Cir.

2010). Ms. Leslie failed to do so in this case.

      Next addressing physical abuse of the children, the magistrate judge recited

Ms. Leslie’s testimony that Mr. Gil-Leyva spanked H.F.G. “only once” and H.M.G.

six times “with an open hand,” leaving “marks” on their “bare bottoms.” Appellant’s

App. vol. 2 at 303.15 Certainly, a parent who is “in the habit of striking the children,”

even for disciplinary purposes, might pose a grave risk of harm to them. See Ermini

v. Vittori, 

, 165 (2d Cir. 2014) (citation omitted). But the described

spankings, though again perhaps a subject for any Canadian custody proceedings, do

not suffice to show a grave risk of harm. Cf. Simcox v. Simcox, 

, 608–09


decide the truth of Ms. Leslie’s allegations of abuse. Even assuming their truth, the
allegations fail to sustain a grave-risk defense.
      15
        Mr. Gil-Leyva disputes that he spanked H.F.G., arguing that Ms. Leslie
provided inconsistent testimony on whether she saw or just heard the spanking and
on whether H.F.G. was ten or 11 months old at the time. But these arguments are
nonresponsive to the fact of the spanking. Further, Mr. Gil-Leyva concedes that he
spanked H.M.G. six times and left marks on H.M.G.’s skin.
                                           14
(6th Cir. 2007) (considering it a “close question” that even “repeated beatings, hair

pulling, ear pulling, and belt-whipping” established a grave risk of harm). Likewise,

though Ms. Leslie testified that Mr. Gil-Leyva would occasionally “get angry and

throw things around,” she allowed that he “never hit the children with those items.”

Appellant’s App. vol. 2 at 302–03. And she proffered no evidence that Mr. Gil-

Leyva’s erratic behavior would constitute a credible threat to the children’s safety

upon their return.

      On appeal, Ms. Leslie retreats somewhat from her allegations of physical

abuse, acknowledging that the children “experienced minimal harm through family

violence.” Appellant’s Br. at 30. Instead, she pivots to allegations of psychological

harm resulting from Mr. Gil-Leyva’s physical abuse of both her and the children—

allegations relatively underdeveloped in the district court. Along this line, she argues

that the children are at grave risk of psychological damage from Mr. Gil-Leyva’s

violent behavior, even if that behavior poses no grave risk of physical harm to them.

Though she may develop this theory in Canadian court, the record in this case

provides no support for it.16




      16
          The magistrate judge had no occasion to address a theory of psychological
harm because Ms. Leslie made only vague allusions to it in her filings and didn’t
raise it at the evidentiary hearing. Notably, Ms. Leslie doesn’t argue that the judge
erred in failing to consider this theory; instead, she subtly shifts the focus from
physical to psychological harm, citing the same underlying allegations of physical
abuse that she did make at the hearing. But just as that abuse fails to show a grave
risk of physical harm, it fails to support a grave risk of psychological harm.
                                           15
      Ms. Leslie alleges that the children will suffer from “[w]itnessing a pattern of

violence between” her and Mr. Gil-Leyva. See 

simultaneously claims that

she either cannot or will not return to Canada. Presumably, that “removes any risk of

the children witnessing any future abusive acts” against her. See 

. Moreover, though repatriation may cause “unavoidable psychological

harm” to children exposed to spousal abuse in the past, see 

, Ms. Leslie testified that the only abuse the children ever witnessed was Mr. Gil-

Leyva occasionally slapping her on her “back side very hard,” Appellant’s App. vol.

2 at 304. Though it is debatable that such contact would trigger grave psychological

harm upon the children’s return to Canada, any such argument rests on speculation.

See 

. Notably, neither party has requested a psychological

evaluation of the children to assess the effects of any of Mr. Gil-Leyva’s past abuse.

See 

issue arises with Ms. Leslie’s argument that the children will suffer

psychological harm from Mr. Gil-Leyva spanking them or throwing things at them.

Ms. Leslie has adduced no expert testimony or evidence that the children suffered

emotionally in the past or that they would unavoidably suffer from spanking or

thrown objects in the future.

      Finally, the magistrate judge recited Ms. Leslie’s testimony regarding Mr. Gil-

Leyva’s negligence in caring for the children and allowing unsafe living conditions in

the home. This included testimony that Mr. Gil-Leyva left non-child-resistant bottles

of prescription medications “within reach of the children”; that his prescription usage

made his behavior “pretty manic”; that, on the “less than five” occasions Ms. Leslie

                                          16
left him alone with the children, he neglected to change their diapers; that once, he

fell into a “narcotic induced sleep” during which he was “completely unaware” of the

children’s needs;17 that he sometimes “put a child in the front seat” of his work van

and once “used a tie-down strap in the back of the van for a child seat”; that he made

soap and shoes and disassembled sewing machines, leaving their parts “all over the

house” along with other dangerous items, including “[p]ower tools, solvents, screws,

nails, glues, [and] choking hazards,” some of which the children occasionally played

with; and that “it was not abnormal” for him to “leave power tools plugged in.” See

Appellant’s App. vol. 2 at 303–04.18 Ms. Leslie further testified—though the judge

didn’t expressly address—that Mr. Gil-Leyva cooked solvents, pennies, and vehicle

parts, producing fumes that made the home “noxious” and “uninhabitable.” See 

at 590:19–591:10.

      Though the judge considered Ms. Leslie’s description of the home as being an

“environment which may not be safe or healthy for children,” she found significant

the absence of evidence that the children had suffered any harm when they lived with

Mr. Gil-Leyva. 

at 305 (finding this “indicative that the conditions may not

have been as terrible as alleged”). We agree. If the children suffered no harm from


      17
        Though Mr. Gil-Leyva disputes the extent to which he abused prescription
medications when the children lived in Canada, he doesn’t dispute that, on at least a
few occasions, his narcotic usage interfered with his ability to care for the children.
      18
         Some of these allegations appear to exceed mere negligence, but both the
magistrate judge and the parties refer to them as such. Whatever their label, these
allegations fail to demonstrate a grave risk of harm to the children.

                                           17
Mr. Gil-Leyva’s alleged negligence when they were younger and more vulnerable,

we struggle to see how they face a grave risk of harm now.19 And while past harm is

not required to establish a grave risk of future harm, it is probative of whether the

children will suffer upon returning to the same circumstances. See Baran v. Beaty,

, 1346 (11th Cir. 2008).

      Ms. Leslie counters that a greater risk of harm now exists because she will not

be in the home to “safeguard the Children,” for example, from playing with plugged-

in power tools or open bottles of medications. Appellant’s Br. at 31. But Ms. Leslie

has not demonstrated by clear and convincing evidence that these dangers present so

grave and credible a threat that the children cannot safely return to Canada without

her protection. See Friedrich v. Friedrich, 

, 1068 (6th Cir. 1996) (“The

person opposing the child’s return must show that the risk to the child is grave, not

merely serious.”) (citing Public Notice 957, 51 Fed. Reg. 104,494, 10,510 (Dep’t of

State Mar. 26, 1986)); see also 

(“[T]he harm must be a great

deal more than minimal.”). We sympathize that the circumstances in which Mr. Gil-

Leyva lives are not ideal for children, but the grave-risk defense “may not be used as



      19
         Indeed, many of Mr. Gil-Leyva’s questionable behaviors are likely non-
factors at this point. For example, it is doubtful that either child still wears diapers.
Further, though Ms. Leslie alleged that Mr. Gil-Leyva cooked items that produced
noxious fumes, she described that as a “phase” that lasted “[s]everal months,” see
Appellant’s App. vol. 3 at 590:19–591:10, and she offered no evidence that Mr. Gil-
Leyva would again take up those habits in the future. In other respects, though, Mr.
Gil-Leyva’s negligence might pose a greater risk of harm to the children now that
they are older. The children, for example, might be more adept at switching on and
handling plugged-in power tools.
                                            18
a vehicle to litigate (or relitigate) the child’s best interests.” Danaipour v. McLarey,

, 14 (1st Cir. 2002) (quoting Public Notice 957, supra, at 10,510). These

are matters for child-custody proceedings in the proper forum—here, Canada.

      C.     Remedy

      Because Ms. Leslie failed to clearly and convincingly establish an Article

13(b) defense to repatriation, H.F.G. and H.M.G. must be “promptly returned” to

Canada. See 22 U.S.C. § 9001(a)(4). The magistrate judge entered an order

accordingly but clarified in dicta that she was only ordering the children’s return to

Canada, not to Mr. Gil-Leyva’s home. She added that, as Canadian law permits, Ms.

Leslie may take certain actions to oppose the children’s return to Mr. Gil-Leyva’s

home; for example, Ms. Leslie may accompany the children back to Canada and

reside with them, separate from Mr. Gil-Leyva, while litigating their custody in the

appropriate Canadian court. Ms. Leslie now argues that these suggestions amount to

unworkable “undertakings” which fail to guarantee the children’s safety. Appellant’s

Br. at 35–41. This argument is misguided.

      In cases where a child faces a grave risk of harm in its country of habitual

residence, a court may attach conditions to a return order to ensure that the child isn’t

subject to “short-term harm” upon returning. Feder v. Evans-Feder, 

, 226

(3d Cir. 1995). Such “undertakings” often include “restraining orders, arrangements

for transportation and lodging costs, and sometimes include provisions for a child’s

education.” 

. Here, however, the magistrate judge attached

no such conditions to her return order; indeed, she flatly recognized her inability to

                                           19
“dictate who should exercise custody over the children” in Canada. Appellant’s App.

vol. 2 at 306 (citation omitted). Instead, her dictum regarding Ms. Leslie’s options

was intended to “emphasize that the Hague Convention addresses only the return of

the children to a jurisdiction and not to a particular person.” 

       Ms. Leslie protests that the magistrate judge substituted suggestions to

“mitigate potential harm” for a determination “whether . . . harm actually exists in the

home.” Appellant’s Br. at 35. That is, the judge suggested mitigatory action “to

excuse herself from making findings” about harm to mitigate. See 

judge

plainly found that the children do not face a grave risk of harm in Mr. Gil-Leyva’s

home; she simply noted that, even assuming such a risk, she wasn’t ordering the

children back to that environment. Ms. Leslie counters that even making suggestions

presupposes a grave risk of harm. See 

(“Why is the [judge] suggesting

remedies if there is no grave risk of harm?”). Again, the judge found no grave risk of

harm but made suggestions to assuage Ms. Leslie’s fear about such a risk.

       Ignoring all this, Ms. Leslie contends that the magistrate judge’s suggestions

are unworkable and therefore fail to ensure the children’s safety. She notes, for



       20
          Neither the Hague Convention nor the ICARA provides that a child ordered
to return to its country of habitual residence must return to the petitioning parent’s
home. But Ms. Leslie contends that a return order must account for whether the child
will, in reality, return to an abusive home. The argument is legally sound but
factually inapposite. See Van De 

(“The rendering court must
satisfy itself that the children will in fact, and not just in legal theory, be protected if
returned to their abuser’s custody.”). The magistrate judge found that the children
will not face a grave risk of harm in Mr. Gil-Leyva’s home, and thus, the judge had
no obligation to account for potential harm in that home.
                                             20
example, that she “has no lawful immigration status” in Canada and thus “cannot get

a job” to support the children, pay for a place to live, or hire an attorney. See 

But the “workability” of the judge’s non-binding suggestions is irrelevant. Absent

a predicate finding that the children face a grave risk of harm in Mr. Gil-Leyva’s

home, the judge had no obligation to craft workable undertakings to “ameliorate the

. . . harm.” See 

. Instead, the judge was required to order the

children’s unconditional return to Canada, which she did.

                                    CONCLUSION

       For the above reasons, we affirm the district court.


                                             Entered for the Court


                                             Gregory A. Phillips
                                             Circuit Judge




                                            21
No. 18-1209, Gil-Leyva v. Leslie
BRISCOE, Circuit Judge, concurring in part and dissenting in part.

       I concur in part and dissent in part. I agree with the majority that the magistrate

judge did not abuse her discretion in permitting Gil-Leyva to appear telephonically at the

January 10, 2018 evidentiary hearing. I disagree with the majority’s conclusion,

however, that the magistrate judge correctly “found that the children do not face a grave

risk of harm in . . . Gil-Leyva’s home.” O&J at 20. In my view, Leslie’s testimony

describing the conditions of Gil-Leyva’s home, combined with her testimony describing

Gil-Leyva’s addiction and mental health issues and seriously neglectful parenting style,

constituted clear and convincing evidence that the conditions in his home present so

grave and credible a threat that the children cannot return there without her protection. I

therefore conclude that the proper course in this case is to remand to the magistrate judge

to hear further evidence regarding whether there are other viable living arrangements for

the children in Canada other than living with Gil-Leyva.

                                                 I

       Article 13b of the Hague Convention states, in pertinent part, that “the judicial or

administrative authority of the requested State is not bound to order the return of the child

if the person . . . [who] opposes its return establishes that . . . 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.” Hague Convention, Art. 13b. “Whether there is a

‘grave risk’ of harm under the Convention is a mixed question of law and fact and thus

review is de novo.” Simcox v. Simcox, 

, 601 (6th Cir. 2007).
       The Hague Convention does not define the phrases “grave risk” or “intolerable

situation.” The circuit courts appear to agree, however, that “a child is exposed to a

‘grave risk’ of harm within the meaning of Article 13(b) . . . in cases of serious abuse or

neglect . . . .” West v. Dobrev, 

, 931 n.8 (10th Cir. 2013) (citing cases from

the Second, Third and Sixth Circuits). “[C]ourts that have confronted abusive situations

tend to refuse to order the return of the children, at least where the abuse could be

characterized as very serious.” 

(citing cases). That said, “even

when confronted with a grave risk of harm, some courts have exercised the discretion

given by the Convention to nevertheless return the child to the country of habitual

residence, provided sufficient protection was afforded.” 

brackets

omitted). “That protection may take the form of ‘undertakings,’ or enforceable

conditions of return designed to mitigate the risk of harm occasioned by the child’s

repatriation.” 

of whether any valid undertakings are possible in a

particular case is inherently fact-bound and the petitioner proffering the undertaking

bears the burden of proof.” 

(quotations omitted).

       Article 13 directs reviewing courts, when assessing an alleged grave risk of harm,

to “take into account the information relating to the social background of the child[ren].”

Hague Convention, Art. 13 (“In considering the circumstances referred to in this Article,

the judicial and administrative authorities shall take into account the information relating

to the social background of the child provided by the Central authority or other competent

authority of the child’s habitual residence.”). Courts have interpreted this directive as

requiring “the court [to] consider the environment in which the child will reside upon

                                              2
returning to the home country,” as well as the nature of the individuals with whom the

child would live. Nunez-Escudero v. Tice-Menley, 

, 377–78 (8th Cir. 1995).

       Notably, the Sixth Circuit has concluded “that Hague Convention cases dealing

with abusive situations can be placed into three broad categories.” 

“First,

there are cases in which the abuse is relatively minor.” 

cases it is unlikely

that the risk of harm caused by return of the child will rise to the level of a ‘grave risk’ or

otherwise place the child in an ‘intolerable situation’ under Article 13b.” 

the other end of the spectrum, there are cases in which the risk of harm is clearly grave,

such as where there is credible evidence of sexual abuse, other similarly grave physical or

psychological abuse, death threats, or serious neglect.” 

“In these cases, . .

. unless the rendering court can satisfy itself that the children will in fact, and not just in

legal theory, be protected if returned to their abuser’s custody, the court should refuse to

grant the petition.” 

“Third, there are those cases that fall somewhere in the

middle, where the abuse is substantially more than minor, but is less obviously

intolerable.” 

these cases, the return of the child would subject it to a

‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact-intensive

inquiry that depends on careful consideration of several factors, including the nature and

frequency of the abuse, the likelihood of its recurrence, and whether there are any

enforceable undertakings that would sufficiently ameliorate the risk of harm to the child

caused by its return.” 

this middle category, undertakings should be adopted

only where the court satisfies itself that the parties are likely to obey them.” 

       In this case, the magistrate judge noted, in terms of neglect, “that . . . Gil-Leyva

habitually left non-child resistant bottles of prescription medication within reach of the

children in the past.” Aplt. App., Vol. 2 at 303. The magistrate judge also noted that

Leslie testified that “[m]ore than once, she found their older child ‘holding a bottle of

pills and shaking it.’” 

at 85). Leslie also testified that “Gil-Leyva’s

prescription use made his waking/sleeping pattern ‘erratic’ and that his behavior became

‘pretty manic.’” 

at 93). Leslie testified “that on ‘[t]he very few

occasions [on] which he had been solely responsible for child care, [she] would return to

find that diapers hadn’t been changed,” and “[o]n one occasion, he was in a narcotic

induced sleep with the child awake and he was unrousable, sleeping, had taken sleeping

medication, and was completely unaware.’” 

at 78, 80). According to

Leslie, “she had,” in total, “left the children in his care ‘less than five times’ for ‘maybe

three hours maximum.’” 

at 94). “Leslie also testified that ‘[h]e took up

hobbies such as soap making and shoe making, and he would order sewing machines

from the internet and disassemble them at the kitchen table,’ leaving parts[, including

power tools, solvents, screws, nails, glues, and choking hazards,] all over the house

including the kitchen and the living room.” 

(quoting Tr. at 81). On several

occasions, Leslie found her children “playing with items that were definitely a choking

hazard, if not a burn hazard, because there were often chemical solvents.’” 

(quoting Tr. at 81). Leslie “testified that it was not abnormal for . . . Gil-Leyva to leave

power tools plugged in,” and on one occasion, one of the children “‘grabbed a power saw

                                               4
which had been left plugging [sic] in in the kitchen, and turned it on.” 

at

81–82). Leslie testified that she “was able to run over and unplug it” before the child

could be injured. 

at 81).

       The magistrate judge concluded that, even accepting all of Leslie’s testimony as

true, Leslie “failed to carry her burden [of] proving by clear and convincing evidence that

. . . Gil-Leyva present[ed] a grave risk of harm to the children.” 

“Regarding

neglect,” the magistrate judge conceded that Leslie’s testimony regarding Gil-Leyva’s

home described an “environment which may not be safe or healthy for children.” 

magistrate judge noted “there was no testimony about either child ever actually being

hurt in the home in the years since their births,” and that this was “indicative that the

conditions may not have been as terrible as alleged and counsel[ed] against a finding of

‘grave risk.’” 

the magistrate judge stated that, “[e]ven if those conditions

were as bad as alleged” by Leslie, the magistrate judge was “not ordering the children to

be returned to Canada to live in the same household as their father.” 

Consequently, the magistrate judge concluded that “the children must be returned to

Canada . . . .” 

       Regarding the appropriate remedy, the magistrate judge directed that, “[t]o the

extent permitted by Canadian law, . . . Leslie [could], consistent with” the magistrate

judge’s order, “accompany the children back to Canada and take up her own residence

with them there, continuing to exclude . . . Gil-Leyva from access to the children while

simultaneously making her case to the appropriate Canadian court that . . . Gil-Leyva’s

asserted abuse and other conduct should preclude him from even partial custody.” 

307. “As another alternative,” the magistrate judge stated, Leslie could “theoretically

return the children to Canada and place them in the custody of family, a friend, or foster

care, rather than turning them over to . . . Gil-Leyva, at least until Canadian authorities

determine[d] how custody [wa]s to be apportioned.” 

magistrate judge

stated, “the children” were not required “to even live in the same town as . . . Gil-Leyva.”

my view, Leslie’s testimony, at least if deemed credible, clearly establishes that

the children will not be adequately protected from harm if they are returned to the sole

custody of Gil-Leyva (and no one has suggested that Leslie, even assuming that she can

legally return to Canada for an extended period, should be expected to live with the

children in Gil-Leyva’s residence in order to protect them).

       Leslie’s testimony on the issue of neglect made clear that she was the children’s

sole caretaker from the time of their births until she took them to Colorado. Although

Leslie and the children resided with Gil-Leyva, Gil-Leyva was not an active presence in

the children’s lives and, indeed, he posed threats to them by way of his serious neglect.

To begin with, Leslie testified that Gil-Leyva’s use of prescription medications, alcohol,

and marijuana resulted in him having an erratic waking and sleeping pattern, as well as,

at least at times, acting manically. On one of the approximately four or five total

occasions that Leslie left the children in Gil-Leyva’s care, she returned to find the

children awake, but Gil-Leyva in a narcotic-induced, unrousable sleep, completely

unaware of the children’s actions. Further, Leslie testified that Gil-Leyva’s activities and

                                              6
hobbies inside the house created numerous hazards to the children, including sewing

machine parts, power tools that were left plugged in, solvents, screws, nails, glues, and

choking hazards strewn around the house. Gil-Leyva also, according to Leslie, went

through a phase where he would boil solvents on the stove, melt pennies on the stove, and

cook vehicle parts in the oven. The fumes from these activities, according to Leslie, were

noxious and made the home temporarily uninhabitable. Lastly, according to Leslie, Gil-

Leyva routinely left his prescription medication bottles open (because the child-safe lids

were apparently too difficult for him to regularly remove) and within reach of the

children. On one occasion, according to Leslie, she discovered one of the children in

possession of an open bottle of a psychotropic prescription medication.

        Although the magistrate judge seemed to place significant weight on the fact that

neither of the children had been injured while living with Gil-Leyva, she ignored the fact

that this was precisely because Leslie, their sole caretaker, was present to protect the

children from the various hazards created by Gil-Leyva. The record firmly establishes, at

least if Leslie is deemed credible, that Gil-Leyva is ill-equipped to personally care for the

children without Leslie and to protect them from the various hazards he has created in his

home.

        In terms of the categorical framework created by the Sixth Circuit in Simcox, I

think the circumstances described by Leslie reasonably places the case within the most

extreme of the three categories because it involves “serious neglect” on the part of Gil-

Leyva, and that serious neglect, combined with Leslie’s absence and the various hazards

present in Gil-Leyva’s house, creates the very real potential for serious physical harm

                                              7
occurring to the children and thus places them in an intolerable situation. Moreover, even

if, for purposes of argument, we were to place the case in the middle category, the record

is totally silent with respect to any enforceable undertakings that might ameliorate the

risk of harm to the children if they were returned to reside with Gil-Leyva in his home.

       To be sure, the magistrate judge suggested in her discussion of remedy that the

children could return to Canada but not to Gil-Leyva’s custody. Specifically, the

magistrate judge noted that, “to the extent permitted by Canadian law, . . . Leslie [could] .

. . accompany the children back to Canada and take up her own residence with them

there, continuing to exclude . . . Gil-Leyva from access to the children while

simultaneously making her case to the appropriate Canadian court that . . . Gil-Leyva’s

asserted abuse and other conduct should preclude him from even partial custody . . . .”

Dist. Ct. Docket No. 56 at 16. “As another alternative,” the magistrate judge noted,

“Leslie [could] theoretically return the children to Canada and place them in the custody

of family, a friend, or foster care, rather than turning them over to . . . Gil-Leyva, at least

until Canadian authorities determine how custody is to be apportioned.” 

however, is that there is no evidence in the record that establishes

either of these as reasonable options. With respect to the first option, i.e., Leslie

returning to live alone with the children in Canada, Leslie testified that, while she lived in

Canada with Gil-Leyva, she “was not able to legally work” due to her immigration status

and, thus, she was financially dependent upon Gil-Leyva. Dist. Ct. Docket No. 46 at 76.

Presumably, the same would hold true if Leslie were to return to Canada with the

children.

                                               8
       Relevant to this point is a document entitled “Revised draft Guide to Good

Practice on Article 13(1)(b) of the 1980 Convention” that was recently issued by the

Council on General Affairs and Policy of the Hague Conference on Private International

Law. Hague Conf. on Private Int’l Law, Council on General Affairs and Policy of the

Conf., Revised draft Guide to Good Practice on Article 13(1)(b) of the 1980 Convention

(Feb. 7, 2019), https://www.hcch.net/en/governance/council-on-general-affairs. This

document recognizes that sometimes “the taking parent claims to be unable to return with

the child to the State of habitual residence because of their difficult or untenable

economic situation, e.g., because his/her living standard would be lower, he/she is unable

to find employment in the State, or is otherwise in dire circumstances . . . .” 

Continuing, the document states: “In assessing such circumstances, courts may examine

evidence or information presented by the parent regarding his or her financial and

employment status, e.g., their savings or assets, employment possibilities, and alternative

means of support, as well as his or her eligibility for social security or welfare payments,

either from the requested State or the State of habitual residence.” 

All of

which leads me to conclude that the magistrate judge in this case, before suggesting that

Leslie could return to Canada and live alone with the children, should have explored

Leslie’s financial situation (e.g., her savings and other means of financial support) and, in

turn, her ability to live in Canada with the children for the period of time necessary to

litigate custody proceedings there.

       As for the second option mentioned by the magistrate judge, i.e., Leslie

“return[ing] the children to Canada and plac[ing] them in the custody of family, a friend,

                                              9
or foster care, rather than turning them over to . . . Gil-Leyva,” there is literally no

evidence in the record that establishes that as a reasonable option. Specifically, neither

Leslie nor Gil-Leyva mentioned any family members or friends who both reside in

Canada and are able and willing to care for the children for an extended period.

                                              IV

       In conclusion, I believe that the harm analysis in this case “depend[s] on the

circumstances in which the children w[ill] live[] when” and if “they return[] to” Canada.

Neumann v. Neumann, 684 F. App’x 471, 481 (6th Cir. 2017). I therefore vote to reverse

the judgment of the district court and to remand the case to the magistrate judge for

further proceedings. If, after hearing additional evidence, the magistrate judge finds that

the only reasonably available custody arrangement for the children in Canada is returning

to live alone with Gil-Leyva, then, in my view, Leslie has met her burden of establishing

the Section 13(b) exception for grave risk of physical harm. If, on the other hand,

additional evidence establishes that other reasonable custody arrangements exist, then

Leslie will not have established the exception.




                                              10