Nasiruddin Khan v. Tarfa Fatima ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1692
N ASIRUDDIN K HAN,
Petitioner-Appellee,
v.
T ARFA F ATIMA,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 12 C 1270—Harry D. Leinenweber, Judge.
A RGUED A PRIL 30, 2012—D ECIDED M AY 4, 2012
Before B AUER, P OSNER, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. The International Child Abduc-
tion Remedies Act, 42 U.S.C. §§ 11601 et seq., which im-
plements the Hague Convention on the Civil Aspects
of International Child Abduction, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89 (Oct. 25, 1980), entitles a person whose
child has been removed from his custody (sole or joint)
to the United States (usually by the other parent) to
petition in federal or state court for the return of the
2 No. 12-1692
child. 42 U.S.C. §§ 11603(a), (b). The petitioner in this
case is the father, and the respondent, his wife, is the
mother. She removed the child from their joint custody
and is thus the “abductor.” The child is a girl not yet
4 years old, who in consideration of her privacy is
referred to in the briefs and record only as ZFK.
The father, an optometrist in Edmonton, Alberta (Can-
ada), wants to take the child back to Edmonton. He has
filed for divorce in Canada on the ground of the
mother’s “physical or mental cruelty” to him, and seeks
sole custody of the children (there is a second child). The
mother, a U.S. citizen living in Illinois, wants to keep the
children with her in the United States. The district court
ordered ZFK returned to Canada with her father, and the
mother appeals. The child was taken from her mother
on March 9 of this year by U.S. Marshals, pursuant to
an ex parte order by the district judge upon the claim of
the father’s lawyer that the wife is a flight risk because
India, which the family was visiting when the mother
flew to the United States with ZFK, is not a signatory of
the Hague Convention, and so she might decide to fly
back to India, taking the child with her. (Both parties are
of Indian ethnicity.) Until our order of May 1, discussed
below, was executed, the child was living with her
father in a hotel in Chicago. The order (which was
carried out on May 3) directed that she be returned to
her mother’s custody pending the final disposition of
the appeal.
“The [Hague] Convention was created to discourage
abductions by parents who either lost, or would lose, a
No. 12-1692 3
custody contest . . . . The Convention drafters adopted a
‘remedy of return’ . . . to discourage abductions, reconnect
children with their primary caretakers, and locate
each custody contest in the forum where most of the
relevant evidence existed. [But] while the remedy of
return works well if the abductor is a non-custodial
parent, it is inappropriate when the abductor is a
primary caretaker who is seeking to protect herself and
the children from the other parent’s violence.” Merle H.
Weiner, “Navigating the Road Between Uniformity and
Progress: The Need for Purposive Analysis of the Hague
Convention on the Civil Aspects of International Child
Abduction,” 33 Colum. Human Rts. L. Rev. 275, 278-79
(2002) (citations omitted), quoted in Van De Sande v. Van
De Sande, 431 F.3d 567, 568 (7th Cir. 2005). See also
Karen Brown Williams, “Fleeing Domestic Violence: A
Proposal to Change the Inadequacies of the Hague Con-
vention on the Civil Aspects of International Child Ab-
duction in Domestic Violence Cases,” 4 John Marshall
L.J. 39, 42-45 (2011); Noah L. Browne, Note, “Relevance and
Fairness: Protecting the Rights of Domestic-Violence
Victims and Left-Behind Fathers Under the Hague Con-
vention on International Child Abduction,” 60 Duke L.J.
1193, 1202-05 (2011); Roxanne Hoegger, “What If She
Leaves? Domestic Violence Cases Under the Hague
Convention and the Insufficiency of the Undertakings
Remedy,” 18 Berkeley Women’s L.J. 181, 187-88 (2003);
Merle H. Weiner, “International Child Abduction and
the Escape from Domestic Violence,” 69 Fordham L. Rev.
593, 634 (2000). As these articles explain, domestic
violence is a common inciter to “abduction”—the abused
4 No. 12-1692
spouse flees and takes her children with her. Accusations
of domestic violence figure in the present case, as we
are about to see.
Article 13(b) of the Convention provides a defense to
the return of the “abducted” child if “there is a grave
risk that [the child’s] return would expose the child to
physical or psychological harm or otherwise place the
child in an intolerable situation.” The respondent (the
abductor) must prove this defense by clear and con-
vincing evidence, 42 U.S.C. § 11603(e)(2)(A), and Hague
Convention proceedings must be conducted with dis-
patch. Art. 11; March v. Levine, 249 F.3d 462, 474 (6th
Cir. 2001). (The articles that we cited explain that
the framers of the Convention believed that abductors
would mainly be abusive fathers rather than abused
mothers. This may explain the heightened burden of
proof that Congress imposed in the statute imple-
menting the Convention.) The dispatch in this case
may have been excessive—the procedural adequacy of
the proceedings in the district court is the principal
issue presented by the appeal. The only other issue is
whether the father abandoned his custodial rights
during the family’s trip to India; we think it clear he
did not.
The parties became husband and wife in an arranged
marriage two years before the birth of ZFK, their first
child. During the family’s visit to India that we men-
tioned the wife complained to the Indian police of
domestic abuse. The police investigated, charged the
husband, and took away his passport; and it was in
No. 12-1692 5
April of last year, while he was thus marooned in India
that the wife (pregnant at the time with their second
child), flew to the United States with ZFK. Eventually
the husband’s passport was returned and he flew back
to Canada and some months later, in February of this
year, filed the petition for the return of the child. That
child was born in the United States after the mother
had brought ZFK here and is therefore a U.S. citizen.
The father does not argue that the mother abducted
that child, who continues to live with her mother.
On March 7 the father obtained an ex parte order
from the district court requiring the mother to yield
custody of ZFK to him pending resolution of his petition,
and on the thirteenth the judge scheduled an evidenti-
ary hearing for March 22. It was held that day, with
the judge as trier of fact since it was an equitable pro-
ceeding. He issued a final order of return the next day
and also ordered the wife to hand over ZFK’s passport
to her husband so that he could take the child back to
Canada. But the judge conditioned the orders on the
husband’s agreeing to pay a retainer (though not neces-
sarily any additional fees) for an attorney who would
be hired by the wife to handle the divorce and custody
proceeding that her husband has begun in Canada.
On the wife’s motion we stayed both the order of
return, and the order that she turn over the child’s
passport to her husband, pending the decision of her
appeal. And on May 1, after hearing oral argument in
the appeal the day before, we ordered the child returned
to the mother pending our decision, but that both the
6 No. 12-1692
mother’s passport and the child’s passport be held by
the U.S. Marshals Service until further notice.
The wife’s testimony, if believed, reveals that her hus-
band has a violent, ungovernable temper, had physically
abused her on many occasions, some in the presence of
ZFK (and in front of the child he had told his wife he
would take out her eyeballs—though the child, not quite
3 years old at the time, may not have known what “eye-
balls” are), had been rough on occasion with the
child—indeed terrified the child—and that the child’s
mood had brightened greatly when she was living
apart from her father. But if the husband’s testimony
is believed, he was, if not a model husband, not an
abuser of his wife or the child. His lawyer conducted
a vigorous cross-examination of the wife, based
in part on discrepancies between her testimony at the
evidentiary hearing and a deposition she had given a
few days earlier. She stood her ground, making few
concessions to the cross-examining attorney.
Rule 52(a)(1) of the civil rules requires the judge to
“find the facts specially and state [his] conclusions of
law separately” when he is the trier of fact. He is not
excused from this duty in a proceeding under the
Hague Convention. And the duty is not waived—indeed
it is at its most exacting—when as in this case plaintiff
and defendant testify inconsistently and it is impossible
to demonstrate by objective evidence which one is
telling the truth, or more of the truth. The trier of fact
must decide whom to believe (and how much to be-
lieve) on the basis of the coherence and plausibility of the
No. 12-1692 7
contestants’ testimony, corroboration or contradiction
by other witnesses, and other clues to falsity and veracity.
The process of factfinding in such a situation is inexact
and the findings that result are doubtless often mis-
taken. But the judge can’t just throw up his hands, as
happened in this case, because he can’t figure out what
is true and what is false in the testimony. There is no
uncertainty exception to the duty imposed by Rule 52.
As we said in another case, “One cannot but sym-
pathize with the inability of the district judge in
this case to say more than he did in justification of the
damages that he assessed for loss of consortium. But
the figures were plucked out of the air, and that
procedure cannot be squared with the duty of reasoned,
articulate adjudication imposed by Rule 52(a).” Arpin
v. United States, 521 F.3d 769, 776 (7th Cir. 2008).
And if there were such an exception, it would not
be available when the evidentiary hearing had lasted
only a day, as in this case. The judge could have
adjourned the hearing for a few days to enable additional
evidence to be obtained and presented; in particular
he could have had ZFK examined by a child psycho-
logist. The wife’s lawyer—his initial proposal of an
expert witness having been turned down because
the witness hadn’t had time to examine the child (remem-
ber that the hearing was held only two weeks after
the respondent learned about the suit)—offered to
submit an evaluation based on an examination of the
child by the end of the week. The judge refused. His
final order, issued as we said the day after the hearing,
8 No. 12-1692
is two pages long and contains no findings of fact
relating to the Article 13(b) defense—just a conclusion
that the wife had failed to meet her burden of proof. That
was not a finding of fact, but a conclusion of law.
Rule 52(a)(1) requires both: that the facts be found “spe-
cially” and the conclusions of law stated separately. It
is needless to add that there is no rule exempting the
judge from the duty of finding the facts in cases in which
the plaintiff has a higher burden of proof than the
usual civil burden of the preponderance of the evidence.
But at the end of the evidentiary hearing the judge
had had a discussion with the lawyers, and from that
we can piece together his thinking and extract a single,
solitary factfinding.
The judge began by saying, directly after the parties’
witnesses had testified (there were no closing argu-
ments), that “neither—none of the parties to the suit are
residents of Illinois.” Not true; the wife is currently a
resident of Illinois. The judge said that “if I send it [the
issue of custody of the child] back to Canada, the Canadian
courts presumably will look and take evidence and so
forth and hear essentially the same evidence, I guess,
I’m hearing today and make a decision to award custody
to the mother or to the father . . . . [Under the Hague
Convention] the child is to be returned except where
there’s grave risk of harm to the child. And, now,
there’s—presumably, there’s always some risk. All I know
is what I heard here today. And I’m—there’s been a he
said/she said hearing today. And it’s very difficult for me
to say categorically one side is telling the truth and one
No. 12-1692 9
side is not telling the truth.” The judge mentioned a
bruise that the mother had received on her arm in India
and that had been photographed at the police station
and was a basis for her complaint to the police. The judge
said that if the father had inflicted the bruise—which
he declined to decide one way or the other—that was a
bad thing to have done but it hadn’t created a “grave
risk,” a key term in Article 13(b). But the issue was not
creating a grave risk to the mother, but a grave risk (of
psychological harm) to the child. If the mother’s
testimony about the father’s ungovernable temper and
brutal treatment of her was believed, it would support
an inference of a grave risk of psychological harm to
the child if she continued living with him.
Very little of the wife’s testimony was so much as
mentioned by the judge, even though the wife had
testified that she’d been beaten with a pillow (which
may sound like a pillow fight, but it was a sofa pillow
that he beat her with in no friendly fashion and she
testified that it hurt), knocked down by him in front
of ZFK, hit in the chest by a heavy wallet that he
had hurled at her, choked by him twice (and she said
she thought she would die) when she was pregnant
with her second child, threatened as we said with
having her eyeballs yanked out, and dragged bodily
from the backyard into a room in the house.
Supervised Visitation Services of Chicago, funded by
the City, supervises visits by noncustodial parents to
their children. It supervised ZFK’s visits to her mother
after the marshals had transferred the child to the
10 No. 12-1692
father’s custody on March 9. One of the supervisors
testified that when the visit was over and she (the super-
visor) told the child that she was taking her back to
her father, the child became hysterical. The supervisor
testified that the child had seemed “in major dis-
tress”—“bigger than” (normal) “separation anxiety.” In
cross-examination she said “I do feel it wasn’t just a
matter of her being upset about leaving her mother.
There was definitely a factor there of not wanting to
go back to her dad.” She was also worried by the child’s
having said without apparent reason when returned to
her father “I am a bad girl.”
Another supervisor testified that during another super-
vised visit the child “said ‘hurt’ . . . . [S]he pointed to
her arm, and then said something about Dad . . . . [S]he
said: ‘I’m scared.’ And I asked her to clarify who she was
scared of, and she said ‘Dad.’ Or ‘Daddy.’ Something
like that . . . . It was not very clear to me what exactly
she was trying to say and what exactly was going on.”
About this witness the judge said “she was very,
very . . . was certainly very, very speculative as to—and
couldn’t say specifically whether anything particular
happened.”
The mother’s testimony was corroborated by her
sister and her sister’s husband. The judge did not
mention the testimony of those witnesses, the testimony
of the supervisor from Supervised Visitation Services who
testified about the child’s having said she “hurt,” or
any testimony of the mother except about the bruise on
her arm, and he made no finding about whether the
No. 12-1692 11
father had inflicted it, instead as we noted dismissing
it as not evidence of a “grave risk”—to the mother.
His focus on the bruise to the exclusion of any men-
tion of the mother’s testimony that her husband had
choked her hard enough to make her afraid she
would die, or indeed of any of her other testimony, is
perplexing.
It is possible that the judge ignored the mother’s testi-
mony because so much of it was about physical and
psychological abuse of her by her husband (and her hus-
band’s parents, who lived with them), rather than of the
child. But much of that abuse occurred in the child’s
presence; and repeated physical and psychological
abuse of a child’s mother by the child’s father, in the
presence of the child (especially a very young child, as in
this case), is likely to create a risk of psychological harm
to the child. Whether it is a grave risk, and thus triggers
the Article 13(b) defense, is a separate question, but
one that cannot be addressed, let alone answered, without
recognizing the potential for such a risk in the father’s
behavior toward the mother in the child’s presence. All
this the judge ignored.
Throwing up his hands at what he may have thought
an incomprehensible quarrel between foreigners, the
judge remarked that even if the child wouldn’t be safe
living with her father, “Why can’t Canada any more
than Illinois protect—offer her protection?” The mother’s
lawyer pointed out that other witnesses besides the
mother had testified and that there was testimony of
“multiple instances” of abuse, to which the judge replied:
12 No. 12-1692
“Then she ultimately should prevail . . . . Canada should
make the decision on who gets custody of the child
because the child is a Canadian citizen and domiciled
in Canada.” The lawyer as we said asked for a few days
to obtain a psychologist’s evaluation of the child and the
judge refused.
It seems that the judge, building on his mistaken
belief that none of the parties was an Illinois resident,
overlooked our warning in Van De Sande v. Van De Sande,
supra, 431 F.3d at 570-71, not to treat the Hague Conven-
tion as a venue statute designed “to deter parents from
engaging in international forum shopping in custody
cases” (quoting Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir.
2005)). The Convention says nothing about the adequacy
of the laws of the country to which the return of the
child is sought—and for good reason, for even perfectly
adequate laws do not ensure a child’s safety. Because of
the privacy of the family and parental control of children,
most abuse of children by a parent goes undetected.
Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987); Coy v. Iowa,
487 U.S. 1012, 1022 (1988) (concurring opinion); Van De
Sande v. Van De Sande, supra, 431 F.3d at 570-71; Valentine
v. Konteh, 395 F.3d 626, 640 (6th Cir. 2005) (opinion con-
curring in part and dissenting in part). ZFK is not yet 4.
She is hardly in a position to complain to the Mounties
about her father.
If the judge’s order is affirmed, the child’s mother, who
appears not to be employed or to have any significant
financial resources, will have to hunt up a Canadian
lawyer and convince the lawyer to represent her without
No. 12-1692 13
any assurance of being fully compensated. If able to hire
a lawyer she may be able to obtain interim custody of
the child from a Canadian court, along with a support
order, but what will she do until she obtains that relief?
Move back in with the father? Let the child live with
him while she returns to the United States while the
custody proceeding unfolds? Suppose she eventually
wins custody of the child, as is not unlikely since no one
accuses her of having abused the child or being an unfit
mother. Then ZFK who (until our order of May 1 was
executed) had been separated from her mother only
since March might not be reunited with her for an indefi-
nite period. Unless a trier of fact determines that
the mother is a thorough liar, we are concerned that
continuing the child in her father’s custody may
inflict psychological harm on her.
But that is an aside. We are not the factfinders. The
essential point is that the evidentiary hearing was inade-
quate. Rule 52(a) was violated; there were no findings
of fact on the key issues. Decisions are frequently
reversed for such omissions. See, e.g., Freeland v. Enodis
Corp., 540 F.3d 721, 739 (7th Cir. 2008); Arpin v. United
States, supra, 521 F.3d at 776-77; Supermercados Econo, Inc. v.
Integrand Assurance Co., 375 F.3d 1 (1st Cir. 2004); Rosco,
Inc. v. Mirror Lite Co., 304 F.3d 1373, 1379 (Fed. Cir.
2002); Zivkovic v. Southern California Edison Co., 302 F.3d
1080, 1090-91 (9th Cir. 2002). The failure to allow psycho-
logical evidence was another error.
The errors were not harmless. The district court’s order
is therefore vacated and the case remanded for a proper
14 No. 12-1692
hearing. Circuit Rule 36 shall apply on remand. We urge
that the proceedings on remand be conducted expedi-
tiously and we suggest that the judge to whom the case
is assigned appoint a child psychologist to interview
ZFK. See Fed. R. Evid. 706. Our May 1 order shall
remain in effect until further notice.
The rulings in this opinion are procedural. We do not
prejudge the merits of the Article 13(b) defense. And
we remind that the burden of proving the defense is
stiff. But whether the burden has been carried cannot
be determined in the absence of Rule 52 factfindings.
V ACATED AND R EMANDED, WITH D IRECTIONS.
H AMILTON, Circuit Judge, dissenting. I respectfully
dissent from the decision to reverse and remand this
case to the district court. My colleagues and I agree that
the child’s country of habitual residence is Canada and
that the mother’s removal of the child from India to the
United States violated the father’s rights as a parent. The
disputed issue is the mother’s “grave risk” defense to
what is otherwise a rock-solid Hague Convention case
for return of the child to Canada. I would affirm the
district court’s finding that the mother did not prove
the “grave risk” defense by clear and convincing evidence
No. 12-1692 15
and would affirm the order returning the child to Can-
ada. I would allow that nation’s courts to address
this child’s best interest and to decide on custody,
support, visitation, and all related matters without
further delay.
As I explain in detail below, the temptation we face
with this case is one that was anticipated by the
diplomats and family law experts who drafted the
Hague Convention and by the United States Congress
that enacted the implementing legislation. The tempta-
tion is to decide the merits of the underlying custody
dispute, and to do so based on the best interest of the
child. That sounds at first like a humane and sensible
way to decide the case. But for cases involving abduc-
tions, the Convention and the legislation were drafted
as tightly as possible to discourage courts from deciding
the best interest of the child. The Convention and the
legislation are designed to decide venue, and to decide
it quickly, to deter forum-shopping in custody disputes
by way of international child abductions. The right
venue is ordinarily the country of the child’s habitual
residence. Although there is an important exception
where a return to that country would pose a “grave risk”
to the child, that exception was drafted carefully to keep
it narrow, precisely so as to prevent courts deciding
Hague Convention petitions from reaching too far into
the merits of the custody question.
My colleagues’ decision to reverse is based on the
noblest of motives, to protect a vulnerable child from a
potential threat and to try to act in her best interest.
16 No. 12-1692
Despite my colleagues’ disclaimers that the reversal is
only a procedural decision, though, the reversal does
what Hague Convention courts are not supposed to
do. The reversal is also clearly based on the view that
the district judge who saw and heard the witnesses
was simply wrong in his evaluation of the parties’ credi-
bility — an evaluation we can make only by reading
and re-reading transcripts.
I do not know whether the district judge was right
or wrong in his factual evaluation of credibility. I will
cheerfully concede that, based on all we know about
this troubled family, a family court judge who considers
the best interest of the child (whether in Canada or the
United States) is likely to award custody to her mother,
at least on an interim basis while the divorce
goes forward. The law could not be any clearer, how-
ever, that that is not the question for the district court
or for us to decide. Our job and the district court’s job is
to decide only the narrow questions presented by the
Hague Convention petition.
For the district court, this was a difficult case. Based on
the district court’s findings, our job on appeal in this
case should be much easier. We should respect the
district court’s findings and allow the family courts in
the Canadian province of Alberta to do their job, which
is the more difficult one of deciding all the issues of
child custody, support, and visitation in the divorce case.
By instead broadening the issues in this case, as the
majority does, we tend to undermine a critical provision
of the Hague Convention and invite other parents who
No. 12-1692 17
have abducted their children to do the same in future
cases. To explain my reasons in more detail, I address
first the “grave risk” exception as it evolved in the
Hague Convention, whose proceedings show that our
obligation under international law is to resist the lure
of deciding custody based on a broad inquiry into the
best interest of the child. I turn then to the majority’s
specific criticisms of the district court’s handling of
this case.
I. The Narrow Exception for “Grave Risk”
A close look at the proceedings that led to the Hague
Convention shows that its framers and ratifiers foresaw
the path my colleagues take in this case, warned against
it, and drafted language as clearly as they could to
prevent courts from broadening a Hague Convention
case into a complete and prolonged custody battle.
The basic premise of the Hague Convention is to
protect the best interests of all children by removing
the incentive to abduct children involved in custody
disputes and to return an abducted child to her country
of habitual residence, promptly, and without attempting
to determine merits of the underlying custody dispute.
42 U.S.C. § 11601(a)(4); Blondin v. Dubois, 189 F.3d 240,
245 (2d Cir. 1999); Friedrich v. Friedrich, 983 F.2d 1396, 1400
(6th Cir. 1993); Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859,
863 (N.D. Ill. 2001). The central provision of the Conven-
tion, Article 12, provides what is known as the return
remedy: “Where a child has been wrongfully removed
18 No. 12-1692
or retained in terms of Article 3 . . . the authority con-
cerned shall order the return of the child forthwith.” See
Abbott v. Abbott, 130 S. Ct. 1983, 1989 (2010).
In drafting the Convention, it was recognized, of
course, that there could be exceptional circumstances in
which the return remedy should be denied, including
cases where return would endanger the child. The
drafters considered a number of different formulations
for this exception. Their debates show that they recog-
nized that if the exception were drafted or interpreted
too broadly, it could effectively undermine the entire
Convention.
The drafters first considered “substantial risk” and other,
even less demanding formulations in the English texts
of the proposals, such as exceptions for the best interests
of the child or for the forum nation’s public policy.
Those less demanding standards were all rejected in
favor of the “grave risk” language in Article 13(b). They
were rejected precisely because they would create too
great a risk that the courts would delve into the merits
of the ultimate custody determination. See, e.g., 1980
Conference de La Haye de droit international prive,
Enlévement d’enfants, in 3 Actes et Documents de la
Quatorziéme session (“Actes”), pp. 168, 182-83, 203-04, 362
(1982).1
1
Such negotiating records can be helpful in interpreting
disputed terms in international treaties. E.g., Sale v. Haitian
Centers Council, Inc., 509 U.S. 155, 184-87 (1993).
No. 12-1692 19
These concerns are clear in participating nations’ com-
ments on the earlier, less demanding standards. Germany,
for example, provided a warning that predicts our han-
dling of this case:
The wider and vaguer the provision is worded, the
greater the margin for the ‘abductor’ successfully to
resist the return of the child. In the interest of an effec-
tive ‘functioning’, therefore, the exceptions should be
restricted as closely as possible and only the situations
really worthy of an exception should be provided for.
This is also in accordance with the purpose of the
Convention to return the child as quickly as possible.
The wide scope of discretion now left to the competent
authorities under [the “substantial risk” exception]
may result in a considerable delay of the return. Expert
opinions may be called for as well as second opinions by
other experts which will take much time, investigations
of fact may be made by which matters could easily be
delayed.
Actes p. 216 (emphasis added). Of particular interest to
our Congress or to United States courts, perhaps, are the
comments of the United States delegation, which sharply
criticized the early “substantial risk” proposal:
The United States is seriously concerned about the
far-reaching inroads [the article that later became
Article 13] makes into the ‘prompt return’ principle.
The very objects of the Convention may be defeated
if this article is adopted in its present form. As the
Swiss Delegate, Mr Beachler, stated in 1976, the status
quo ante must be re-established before there is any
20 No. 12-1692
other discussion. Only after the return of the child to
the country of origin may the merits be considered.
[This article] retains little of the ‘restoration of cus-
tody’ concept or of ‘prompt return’ without exam-
ination of the merits. Its broad exceptions will tend
to turn virtually every return proceeding into an ad-
versary contest on the merits of the custody question. No
abductor’s lawyer would fail to raise one or more of
the exceptions.
Actes p. 242 (emphasis added; citation omitted).
The Convention adopted the stricter “grave risk” stan-
dard to prevent or at least discourage such efforts to
broaden the scope of court proceedings seeking return
of a child. The drafters were familiar with the practice
of courts relying on such broad standards to resist de-
mands that abducted children be returned to their coun-
tries of habitual residence. Actes pp. 182-83. The Con-
vention was designed to end that practice. The Ex-
planatory Report for the final text of the Convention
explained:
[I]t must not be forgotten that it is by invoking ‘the
best interests of the child’ that internal jurisdic-
tions have in the past often finally awarded the cus-
tody in question to the person who wrongfully re-
moved or retained the child. It can happen that such
a decision is the most just, but we cannot [ignore]
the fact that recourse by internal authorities to such
a notion involves the risk of their expressing
particular cultural, social etc. attitudes which them-
No. 12-1692 21
selves derive from a given national community
and thus basically imposing their own subjective
value judgments upon the national community
from which the child has recently been snatched.
Actes p. 431. On the exception for grave risk, the Explana-
tory Report warned more specifically against expansive
interpretation:
To conclude our consideration of the problems
with which this paragraph deals, it would seem
necessary to underline the fact that the three types
of exception to the rule concerning the return of the
child must be applied only so far as they go and no
further. This implies above all that they are to be inter-
preted in a restrictive fashion if the Convention is not to
become a dead letter. In fact, the Convention as a
whole rests upon the unanimous rejection of this
phenomenon of illegal child removals and upon the
conviction that the best way to combat them at an
international level is to refuse to grant them legal
recognition. The practical application of this
principle requires that the signatory States be con-
vinced that they belong, despite their differences, to
t h e sa m e l e g a l c o m m u n i ty w i th in w h ic h
the authorities of each State acknowledge that the
authorities of one of them — those of the child’s
habitual residence — are in principle best placed
to decide upon questions of custody and access. As a
result, systematic invocation of the said exceptions, substi-
tuting the forum chosen by the abductor for that of the
child’s residence, would lead to the collapse of the whole
22 No. 12-1692
structure of the Convention by depriving it of the spirit
of mutual confidence which is its inspiration.
Actes pp. 434-35 (emphasis added).
Turning from the Hague Convention itself to its imple-
mentation by the United States, the Congress emphasized
these same points, recognizing the temptation to turn
Hague Convention proceedings into full-blown custody
fights. Congress found that children who have been
wrongfully removed or retained “are to be promptly
returned unless one of the narrow exceptions set forth in
the Convention applies.” 42 U.S.C. § 11601(a)(4). Congress
declared: “The Convention and this chapter empower
courts in the United States to determine only rights
under the Convention and not the merits of any
underlying child custody claims.” 42 U.S.C. § 11601(b)(4).
The State Department advised Congress that the excep-
tions were “drawn very narrowly lest their application
undermine the express purposes of the Convention — to
effect the prompt return of abducted children,” and
that Convention delegates believed that “courts would
understand and fulfill the objectives of the Convention
by narrowly interpreting the exceptions and allowing
their use only in clearly meritorious cases, and only
when the person opposing return had met the burden
of proof.” Hague International Child Abduction Con-
vention; Text and Legal Analysis, 51 Fed. Reg. 10,494,
10,509 (March 26, 1986). More specifically on the “grave
risk” exception, the State Department explained:
This provision was not intended to be used by de-
fendants as a vehicle to litigate (or relitigate) the
No. 12-1692 23
child’s best interests. Only evidence directly estab-
lishing the existence of a grave risk that would
expose the child to physical or emotional harm or
otherwise place the child in an intolerable situation
is material to the court’s determination. The person
opposing the child’s return must show that the risk
to the child is grave, not merely serious.
Id. at 10,510.2
One critical provision of the implementing legislation
in the United States dealt with burdens of proof. In imple-
menting the “grave risk” exception, Congress imposed
on a respondent (the mother in our case) the burden
of proving the exception “by clear and convincing evi-
dence.” 42 U.S.C. § 11603(e)(2)(A) (referring to Article 13(b)
of the Convention). That demanding standard of proof
was properly the focus for the district court and should
be our focus as well. The choice to impose that high
burden of proof was designed to make a difference, and
it should make a difference, in cases exactly like this
one where it is difficult to make a reliable factual deter-
mination.
Reasonable people may debate whether the “grave
risk” standard is sufficiently sensitive to legitimate
claims of abuse, without being over-sensitive to false
or exaggerated claims. Some of the advocates’ and schol-
ars’ law journal articles cited by the majority argue that
2
The executive branch’s interpretation of a treaty is entitled
to “great weight.” Abbott, 130 S. Ct. at 1993, quoting Sumitomo
Shoji America, Inc. v. Avagliano, 457 U.S. 176, 185 (1982).
24 No. 12-1692
the “grave risk” standard is too difficult for victims
of domestic violence to satisfy. See, e.g., Karen Brown
Williams, Fleeing Domestic Violence: A Proposal to Change
the Inadequacies of the Hague Convention on the Civil
Aspects of International Child Abduction in Domestic Violence
Cases, 4 J. Marshall L.J. 39 (2011); Roxanne Hoegger,
What if She Leaves? Domestic Violence Cases Under the
Hague Convention and the Insufficiency of the Undertakings
Remedy, 18 Berkeley Women’s L.J. 181 (2003); Merle H.
Weiner, International Child Abduction and the Escape from
Domestic Violence, 69 Fordham L. Rev. 593 (2000). As the
majority points out, the proportion of international child
abduction cases where the abductor is herself fleeing
a violent or psychologically abusive situation has
grown much higher than was anticipated by the Con-
vention or by Congress. The demanding “grave risk”
standard, requiring proof by clear and convincing evi-
dence, creates the possibility that abusive parents
could use the Convention, which was enacted to pro-
tect children, to have courts order those children back
into harm’s way.
The Convention drafters were aware of this possibility.
The “grave risk” exception was a compromise designed
to address the problem narrowly, without inviting ab-
ducting parents and their lawyers to broaden litiga-
tion over the return remedy to include a full custody
battle. The drafters recognized that allowing such
broader litigation would undermine the ability of the
Convention to protect those other children who are
abducted by their abusers or by parents who seek to
use them as leverage. Our job, of course, is to apply
No. 12-1692 25
the Convention and the legislation themselves, not the
scholarly criticisms and proposals for improvements in
them. See also Merle H. Weiner, Navigating the Road
Between Uniformity and Progress: The Need for Purposive
Analysis of the Hague Convention on the Civil Aspects of
International Child Abduction, 33 Colum. Hum. Rts. L.
Rev. 275, 279-80 (2002) (noting concern about effects
of judicial manipulation of the Convention in cases in-
volving claims of domestic violence).
Before moving to the specifics of our case, and the
majority’s criticisms of the district court’s handling of
this case, one should not forget the Hague Convention’s
emphasis on prompt decisions. Article 11 provides: “The
judicial or administrative authorities of Contracting
States shall act expeditiously in proceedings for the
return of children.” What is expeditious? Article 11 pro-
vides further that if the entire petition is not decided
within six weeks from the start of the proceedings,
the interested parties and countries have a right to an
explanation for the delay. That’s a mild sanction, but
it certainly gives us a target. In this case we are already
well past that point, and the reversal here points
toward more weeks or months of litigation in the
district court.
That need for a prompt decision on the remedy of
return gives district courts a good deal of flexibility in
deciding the procedures they will use to decide these
petitions. In Norinder v. Fuentes, 657 F.3d 526 (7th Cir.
2011), for example, we affirmed the remedy of return
after expedited proceedings with limited and expedited
26 No. 12-1692
discovery. We said: “The Convention and its imple-
menting Act are chock full of the language of urgency
and in no uncertain terms contemplate expedited proce-
dures to guarantee that children are returned quickly to
the correct jurisdiction.” Id. at 533. In essence, a district
judge facing a Hague Convention petition should ordi-
narily use the expedited procedures that apply to motions
for temporary restraining orders and preliminary injunc-
tions. Our appellate review of the procedural choices
should respect the time pressures and allow for some
flexibility, some discretion, and even some imperfections.
II. The District Court’s Decision
The district court faced the following situation. The
father easily proved his prima facie case of entitlement
to the return remedy. The child’s habitual residence
has been Canada, and the mother removed the child
from the father’s custody in violation of his rights as
a father (under Canadian law) when she took the
child during the family trip to India and flew to her par-
ents’ home in the United States. The hearing transcript
shows that the judge knew he was supposed to act
quickly and that his job was most emphatically not to
decide the merits of the underlying custody dispute
between the parents. The only serious issue was
whether the mother proved by clear and convincing
evidence that returning the child to her father in
Canada would pose a grave risk to her physically or
psychologically. On that issue, the district judge heard
testimony for a day. At the end of the hearing, he stated
No. 12-1692 27
his oral finding that the mother had not proved her
defense by clear and convincing evidence. The next day
he issued a short written order repeating that finding.
The majority identifies three distinct errors by the
district court: (a) failing to make sufficiently specific
findings; (b) overlooking a warning in one of our cases
not to rely on police and laws of the country of habitual
residence to protect a child; and (c) refusing to delay
a ruling to give the mother’s expert time to conduct
a psychological evaluation of the child. As I read this
record, the district judge did not commit such re-
versible errors.3
A. Sufficiency of Findings
The majority’s strongest argument is that the findings
were not specific enough and that the judge should
have explained in more detail his view of the facts
and the testimony of the witnesses. If all we had were
3
I believe the district court made an error at the outset of the
case, but one that is now moot. The father filed with his
petition under the Hague Convention a request that he be
given immediate custody of the child before the mother could
be heard, ostensibly on the ground that she posed a flight risk
and might take the child back to India, which is not a party
to the Hague Convention. The showing of flight risk was
thin, but even if there was a flight risk, the much less drastic
step of seizing the mother’s and child’s passports should
have been sufficient to preserve the status quo until the
mother could have been heard on the interim custody issue.
28 No. 12-1692
the two-page written order, I would agree that more
was needed. But we also have more detailed oral expla-
nations that emerged at the end of the hearing as the
judge announced his decision, the mother’s lawyer
argued that the decision was mistaken, and the judge
explained his reasoning further. In my view, the tran-
script is sufficient to understand the judge’s thinking.
It shows that the judge understood the evidence, under-
stood the law, and did not clearly err by finding that
the mother had not proved by clear and convincing
evidence that return would pose a grave risk to the child.
Federal Rule of Civil Procedure 52(a) allows for
oral findings. It requires findings on as many of the
subsidiary facts as are necessary to disclose to the re-
viewing court the steps by which the trial court reached
its ultimate conclusion on each factual issue. Ortloff v.
United States, 335 F.3d 652, 661 (7th Cir. 2003), abrogated
on other grounds, Ali v. Federal Bureau of Prisons, 552
U.S. 214 (2008), as stated in Parrott v. United States, 536
F.3d 629, 635 (7th Cir. 2008). The sufficiency of findings
must be evaluated in context, keeping in mind the sub-
stantive issues and the burden of proof. See American
Red Cross v. Community Blood Center of the Ozarks,
257 F.3d 859, 863 (8th Cir. 2001) (oral findings at end of
one-day hearing were sufficient given the limited pro-
ceedings). Findings are to be liberally construed in sup-
port of a judgment, even if those findings are not as
detailed as we might desire. Zack v. C.I.R., 291 F.3d 407, 412
(6th Cir. 2002) (affirming judgment); Grover Hill Grain Co.
v. Baughman-Oster, Inc., 728 F.2d 784, 793 (6th Cir. 1984)
(reversing judgment where findings did not give clear
No. 12-1692 29
understanding of basis for district court’s decision);
Travelers Ins. Co. v. Dunn, 228 F.2d 629, 631-32 (5th Cir.
1956) (affirming judgment where district court stated
oral finding that appellee had “testified truly”). Given
the urgency of the matter the district judge had to
decide, we should read his findings more charitably
than my colleagues do so long as we can follow the path
of his reasoning. That path is easy to follow here. The
mother had to prove her defense by clear and con-
vincing evidence. The conflicts in the evidence about
the father’s treatment of the mother over the years of
their marriage, and the credibility issues raised with
both of them, meant that her evidence was not clear
and convincing.
The judge began to summarize his view of the case
at page 214 of the transcript. He said that if he were
sitting in Canada as a family court judge, he would proba-
bly award custody to the mother. Tr. 215. He con-
tinued: “But as I understand the law, and I’m reading
from Judge Posner’s opinion [in Van De Sande v. Van De
Sande, 431 F.3d 567 (7th Cir. 2005)], that the exception is
the child is to be returned except where there’s grave
risk of harm to the child.” So far, so good. He continued:
“And, now, there’s — presumably, there’s always some
risk. All I know is what I heard today. And I’m — there’s
been a he said/she said hearing today. And it’s very
difficult for me to say categorically one side is telling
the truth and one side is not telling the truth. And the
burden is — there’s extraordinary burden on the part — to
establish that defense of grave risk of harm.” Tr. 215-
30 No. 12-1692
16. Again, no error yet, and note the critical reference
to the burden of proof the mother faced.
Did the judge say enough about the only neutral wit-
nesses, the two visitation supervisors? The mother
sought to show with their testimony that the child had
been traumatized by her father’s behavior and that she
had spontaneously cried out that he had hurt her. The
supervisors’ testimony shows that the child is now
much more comfortable with her mother than with
her father. Tr. 101-04, 143. That is not necessarily
surprising after the child’s long absence from the
father after the abduction and the sudden change of
custody ordered by the district court, as at least one
supervisor, Ms. Soto, recognized. Tr. 102-04.
The judge reasonably described Ms. Kelly’s testimony
about possible physical abuse as speculative, Tr. 216, and
he noted further: “But there’s been no evidence whatso-
ever that anything physically was ever done to this
child, possibly except squeezing an arm, and that was
disputed. But even assuming that there was squeezing
of an arm, that’s far short of what I would consider estab-
lishing grave risk of harm.” Tr. 219. That is a reasonable
view of the evidence, which was not nearly as clear
or strong as the mother argues, and it is a reasonable
application of the legal standard to that evidence.
The judge did not specifically address the testimony
of Ms. Soto, who supervised a visit two days before
the hearing. Ms. Soto testified that the child was very
happy to see her mother, did not want to go home with
her father, and became hysterical when told it was time
to meet her father. Tr. 98. Ms. Soto testified that the
No. 12-1692 31
child’s behavior went beyond separation anxiety and
she seemed traumatized. On cross-examination, how-
ever, she acknowledged that she would not expect
smooth transitions from one parent to another with a
young child who has been separated from one parent for
11 months, and when given the opportunity, she did
not assert that she thought the child had been abused
by her father. Tr. 103-04. Ms. Soto’s testimony was so
inconclusive that I see no error in failing to address
it specifically.
The majority seems most concerned with the lack of
a finding that either the mother and her family were
telling the truth or the father was telling the truth, crit-
icizing the judge for invoking an “uncertainty excep-
tion” to the findings requirement of Rule 52(a). “If
the mother’s testimony about the father’s ungovernable
temper and brutal treatment of her was believed, it
would support an inference of a grave risk of psycho-
logical harm to the child if she continued living with
him.” Slip op. at 9.
Not all courts would necessarily agree with that view
of the mother’s testimony here. See, e.g., Gaudin v. Remis,
415 F.3d 1028, 1035 (9th Cir. 2005) (“the question is
whether the child would suffer ‘serious abuse,’ that is ‘a
great deal more than minimal’ ”) (citations omitted); id. at
1037 (grave-risk inquiry should focus on short-term
risk pending opportunity for home country’s courts to
address interim custody issues). At least for purposes of
argument, though, I will accept the majority’s latter
point about possible psychological harm to the child
32 No. 12-1692
from short-term custody with the father pending a deci-
sion by a Canadian court on interim custody. The
problem is that the majority’s criticism loses sight of the
critical point here: the burden to prove “grave risk” to
the child by clear and convincing evidence. 42 U.S.C.
§ 11603(e)(2)(A). With that standard of proof, the judge
simply was not required to find that the mother’s testi-
mony was either true or false, accurate or mistaken.
Faced with conflicting evidence from both the mother
and the father, each of whose testimony was weakened
by inconsistencies and the conflicting testimony of the
other, it’s hard to argue with the finding that the
mother’s evidence was not “clear and convincing.”
We might wish that the judge had made a crisp call of
ball or strike, true or false, but that is not a realistic view
of the applicable standard as applied to this conflicting
evidence. The district judge was not creating a new
“uncertainty exception” to Rule 52(a), as the majority
suggests. He was simply applying the clear and con-
vincing burden of proof to evidence that he found
neither clear nor convincing.
By imposing the requirement of clear and convincing
evidence, Congress was creating a logical space for
exactly this sort of finding: the mother might be telling
the truth, or so a judge might find by a preponderance
of the evidence, but her evidence is still not so
persuasive as to be clear and convincing. We might not
like that result. Like some of the advocates and scholars
cited by the majority, we might think that the Conven-
tion and the Congress should have made it easier to
prove the defense. But under the controlling burden
No. 12-1692 33
of proof, the defense to the return remedy was not
proven. The district judge clearly understood the
burden of proof and applied it to reject the defense. I do
not see a reversible error there. A more detailed oral
or written review of the conflicts in the evidence
explaining in more detail why the mother’s evidence
was not clear and convincing would not have helped
the district judge or us.4
B. Overlooking a Warning?
The majority next suggests that the district judge may
have made a legal error, that he may have “overlooked
our warning in Van De Sande v. Van De Sande, supra, 431
F.3d at 570-71, not to treat the Hague Convention as a
venue statute designed ‘to deter parents from engaging
in international forum shopping in custody cases.’ ” Slip
op. at 12, quoting Baxter v. Baxter, 423 F.3d 363, 367 (3d
Cir. 2005). The Hague Convention is indeed a venue
statute. It is designed to deter exactly such forum-
shopping and to prevent litigation of custody in the
4
The majority also criticizes the district court for mistakenly
finding that none of the parties was a resident of Illinois.
The mother is a United States citizen and has been residing
in Illinois since May 2011, but she is, or at least was, also a
permanent resident of Canada, which the district court
properly found was the habitual residence of the child. In
light of the Hague Convention’s standards based on habitual
residence, which the district court applied correctly, there
was no prejudicial error here.
34 No. 12-1692
country chosen by the abducting parent, as the Third
Circuit explained in Baxter. Accord, e.g., England v. England,
234 F.3d 268, 271 (5th Cir. 2000); Lops v. Lops, 140 F.3d 927,
936 (11th Cir. 1998). The quoted passage in Van De Sande
addressed a different issue, an argument that a court
could decide “grave risk” and venue by asking only if
the country of habitual residence had sufficient laws
and police to protect the child from a parent’s abuse.
It is unclear from the Van De Sande opinion whether
the father actually made that argument in that case (the
target of the discussion was dictum in another circuit’s
opinion), but in any event the district judge did not
make the supposed error here. The judge was thoroughly
familiar with Van De Sande. He referred to it repeatedly
during the hearing. The majority suggests the judge
made this mistake when he asked: “Why can’t Canada
any more than Illinois protect — offer her protection?”
Tr. 218. In context, it is clear that the judge was referring
to the mother, not to the child. (The judge’s preceding
question was “Why can’t she move to Canada?”, referring
obviously to the mother.) The question was raised as
part of the judge’s proper effort to satisfy himself that a
Canadian family court could quickly take steps to deal
with interim questions such as custody, support, in-
cluding paying needed legal fees. See Tr. 212-13, 218, 220-
22.5 There is no doubt that the mother here would face
5
Judge O’Scannlain explained for the Ninth Circuit in
Gaudin v. Remes, “because the Hague Convention provides
(continued...)
No. 12-1692 35
substantial obstacles litigating in the country of habitual
residence, away from her parents. She would need to
find a place to live and a lawyer, and she probably would
need an award of interim support. But those obstacles
are surmountable and in any event are not legitimate
grounds for denying the Hague Convention’s return
remedy.
C. Refusing Further Delay for More Evidence
At the beginning of the hearing, the judge granted the
father’s motion to exclude testimony from the mother’s
psychological expert, Dr. Hatcher. Because Dr. Hatcher
had not interviewed the mother or the child or anyone
else involved in the case, the district court found that the
proffered expert opinions would not be helpful. Tr. 7-8.
Near the end of the hearing, after the judge had said
that grave risk had not been shown, the mother’s lawyer
asked for another week for Dr. Hatcher to conduct a
psychological evaluation of the child and submit a
report to the court. Tr. 221. The majority finds that the
district judge erred by not allowing such a delay. The
judge provided a sound reason for not doing so. After
5
(...continued)
only a provisional, short-term remedy in order to permit long-
term custody proceedings to take place in the home jurisdic-
tion, the grave-risk inquiry should be concerned only with
the degree of harm that could occur in the immediate fu-
ture,” particularly in context of concern about psychological
harm. 415 F.3d at 1037.
36 No. 12-1692
discussion back and forth, the court explained: “Based
upon what I know of experts, then they come up with
an expert, and then you’re right back where we started
from. One will say that there is, and the other will say
there isn’t.” Tr. 224. The judge was clearly indicating
that waiting for such an evaluation would lead, at a
minimum, to several more weeks of delay to allow for
the mother to arrange for that evaluation, for the father
to arrange for a similar evaluation, for exchanges of
expert reports, and for another evidentiary hearing
before the district court. In other words, the judge recog-
nized, he would be hearing a full-blown custody fight,
which simply was not his job under the Hague Conven-
tion. He was correct, and he certainly did not abuse
his discretion.
The finding of error on this point is the most troubling
aspect of the majority’s decision, in terms of the overall
effectiveness of the Hague Convention. The Convention
is undermined by expanding the “grave risk” exception
into a thorough inquiry into the merits of the custody
issue. By finding that the refusal to delay the decision
for such additional expert testimony was an abuse of
discretion (though the majority does not use that phrase),
the expansion of virtually any “grave risk” defense into
a full-blown custody hearing becomes nearly inevitable.
As explained above in Part I, that was the prediction of
the United States delegation to the Hague Convention
when the exception was drafted more broadly. Both
the Convention and Congress rejected that broader ap-
proach. They insisted that the exception be kept
narrow and that decisions be made quickly. Under the
No. 12-1692 37
majority’s approach, however, those goals may be
missed any time one parent complains that the
other has abused her in any way that could have
affected the child psychologically. The idea that a
decision could be made within the target period of six
weeks will become a distant memory.
If the majority’s approach prevails, those conse-
quences may well echo to the detriment of United States
parents whose children are abducted to other countries.
An important point for the Congress in implementing
the Convention was that a foreign court must comply
with its obligation to return a child to the United States
“without conducting any proceedings on the merits of
the underlying custody claims.” 134 Cong. Rec. S3839-02
(daily ed. Apr. 12, 1988) (statement of Sen. Dixon). Many
other members of Congress recounted problems their
constituents had encountered because their children
had been abducted to other countries that refused to
return the children without full consideration of custody
issues under foreign law. See Weiner, 69 Fordham L. Rev.
at 603-04 (collecting examples). If the United States
courts do not respect the limits of Hague Convention
proceedings, it will be difficult to argue in foreign courts
or through diplomatic channels that other nations’
courts should respect them.
I do not mean to exaggerate predictions of doom here.
Perhaps the majority’s reasoning on this point can be
confined to the combination of the allegations, corrob-
orating evidence, procedures, and findings in this case.
The majority does not suggest that the refusal of more
38 No. 12-1692
time for psychological evaluation was alone a sufficient
basis to reverse. Yet the risk to the Convention and to
the other children and parents it is supposed to protect
is nonetheless serious. For these reasons, I would affirm
the judgment of the district court and allow the Canadian
courts to do their difficult job in dealing with this child
and her family.
5-14-12