Case Update (9 Jan 2023): Radu v. Shon; district court clarifies its return order for 9th Circuit

On November 21, 2022, the 9th Circuit heard oral arguments on the matter of Radu v. Shon, which involves a father's request to return the parties' two children to Germany using the Hague Abduction Convention. In September 2020, the district court ordered the children returned with an ameliorative measure. The 9th Circuit vacated and remanded with instructions that the district court reasonably ensure compliance with its ameliorative measure. After a further trial, the district court again ordered the children returned. The mother sought review in the U.S. Supreme Court. The U.S. Supreme Court, after deciding Golan v. Saada, remanded for further consideration of the ameliorative measure. The district court again ordered the children returned. Ms. Shon appealed, and the 9th Circuit, on December 1, 2022, asked the district court to clarify certain questions so it can then render its decision on her appeal. The questions are outlined below with the district court's response to the 9th circuit.

Q: what, specifically, is the district court's current Article 13(b) grave risk finding and ameliorative measure(s), A: "that O.S.R. and M.S.R. would be at grave risk of psychological harm if they were to return to Germany and remain in the sole custody of Petitioner for an extended period."

Q: whether Radu must pay for the children's airfare, A: it is not clearly inappropriate to order Respondent to pay the airfare, under ICARA's fee shifting provisions, so she is ordered to pay it

Q: whether Radu must pay for separate living arrangements for the children and Shon, A: the Petitioner must cover the rent of a home in Germany for Respondent and the children for the shorter of 90 days or until Germany makes a custody determination

Q: what the custody arrangements for the children will be (sole or joint) while Shon is temporarily residing in Germany, A: by default, under German law, both parents have joint custody, so this is what would exist upon their return

Q: what the custody arrangements for the children will be if Shon is no longer able to legally reside in Germany on a tourist visa before a German court decides custody, A: if Respondent had to leave Germany because of her visa, then Petitioner would have custody until she returns or until a German court makes a decision

Q: whether the parties should notify German child protective services upon the children's arrival in Germany, A: Respondent may, but is not ordered, to notify any agency she should choose when arriving in Germany

Q: whether, if necessary, German child protective services has jurisdiction to act in overseeing the children's wellbeing while they are present in Germany, A: there is sufficient evidence to allow the district court to find that an equivalent CPS exists in Germany and that there is no reason to doubt its authority to ensure the children's safety if necessary while they are in Germany