Case Update (2020): Radu v. Shon; Hague Abduction Convention and the Grave Risk of Harm
On September 16, 2020, the U.S. District Court for the District of Arizona returned the parties' children to their habitual residence of Germany. In the case of Radu v. Shon, the Respondent Mother (Shon) conceded that her removal of the children from Germany in June 2019 was wrongful. She argued 2 exceptions to their return: consent/acquiescence and grave risk of harm. The court focused predominantly on the grave risk of harm arguments.
Shon argued that the Petitioner Father (Radu) was emotionally and psychologically abusive towards her and the children in Germany, causing them to fear Radu. Shon alleged that Radu had an explosive temper, he yelled, degraded her, and used derogatory language. Further, she argued that Radu banged his hands on the table, threw objects, and once slapped her. The Court noted that none of this caused the children to require medical attention and no one sought a protective order or filed a police report because of this behavior.
"The Court may decline to return a child under the grave-risk exception only if the respondent establishes that 'the child would suffer serious abuse that is a great deal more than minimal' if returned." "The focus is not on whether a living situation would be 'capable of causing grave psychological harm over the full course of a child's development' but rather whether it is 'likely to do so during the period necessary to obtain a custody determination.'" "In addition, the Court must consider 'whether any reasonable remedy can be forged that will permit the children to be returned to their home jurisdiction for a custody determination' while avoiding grave risk of harm."
The Court concluded it would be a grave risk of psychological harm to return the children to Radu's custody, but this could be mitigated by returning them to Germany in Shon's custody until a German custody determination could be rendered. The Court specifically ordered: "To prevent a grave risk of psychological harm, Shon shall retain temporary custody and care of the children until a custody determination can be made by a German court of competent jurisdiction."
Therefore, the Court granted Radu's petition and ordered the children returned. It indicated it would hold a further hearing, if either party requested, to determine the logistics of the return.
As a note: The opinion does not go into whether the Court's order, granting temporary custody, would be enforceable in Germany. It didn't elaborate on the authority for the court vested with jurisdiction over the Hague Abduction case to grant a temporary custody order. It also didn't elaborate on what evidence it had that Shon was willing to return to Germany.
