Case Update (26 May 2023): Silva v. Dos Santos; district court applied the wrong standard in weighing evidence of grave risk, and therefore the order returning the child is vacated and case remanded

The U.S. Court of Appeals for the Eleventh Circuit vacated and remanded a district court order returning the parties' minor child to Brazil. At trial, the mother/respondent argued that returning the child would expose her to a grave risk of harm. She testified about different incidents of abuse and violence, starting when she was pregnant with the parties' child. The father, to some extent, denied the abuse. He also, at times, simply relayed that the mother had no evidence to prove her asserted abuse claims, without actually denying the incidents. "The district court expressly found [father] not to be credible, but because the district court concluded that [mother] did not provide independent corroboration to support her own testimony, the district court found she had not established by clear and convincing evidence a 'grave risk' of harm to YFG in Brazil." The Eleventh Circuit concluded that this was the wrong legal standard in weighing conflicting testimony.

The Eleventh Circuit said "even without independent corroboration, a factfinder's belief in a single witness's testimony alone can be sufficient to satisfy a party's burden to prove a fact by clear and convincing evidence." "[T]he district court could have chosen to consider [mother's] testimony as corroborating evidence that the return of YFG to Brazil represents a 'grave risk' to the child" given that it found the father's testimony not credible. Not only did the district court find that some of the father's explanations "made no sense" but he did not "bother to deny some of the incidents...". The court is permitted to not only assume that a witness is lying, but to assume that the truth is the opposite of that witness's story. This principle is applied in criminal cases routinely, where "if the factfinder disbelieves the defendant's testimony, his statement can be used against him 'as substantive evidence of his guilt.'" The district court, here, expressly stated that it was unaware it could, in fact, consider non-credible testimony as corroborative substantive evidence of the opposite in the civil context. While the rule is permissive, and not mandatory, the district court was unaware it could have applied the rule. Because of that, the district court did not consider the evidence in this light, and therefore did not state how this information might have affected its decision. On remand, it is "entirely with[in] the purview of the district court" as to "whether to consider the testimony as corroborating substantive evidence against [father]". Further, a single witness's testimony can support a finding by clear and convincing evidence, and there is no requirement that it be corroborated.