Wellekson Goncalves Silva v. Andriene Ferreira dos Santos

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10918
Non-Argument Calendar
____________________
WELLEKSON GONÇALVES SILVA,
Petitioner-Appellee,
versus
ANDRIENE FERREIRA DOS SANTOS,
Respondent-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-03371-ELR
____________________
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2 Opinion of the Court 23-10918
Before ROSENBAUM, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
The Hague Convention on the Civil Aspects of International
Child Abduction (the “Convention”), Oct. 25, 1980, T.I.A.S. No.
11670, and its implementing legislation, the International Child Ab-
duction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001–9011, govern
international child abductions during domestic disputes. The Con-
vention ordinarily mandates a child’s return to their country of ha-
bitual residence if the child has been wrongfully removed. But it
also provides certain exceptions, including one for when a court
finds that a child’s return would put the child at a grave risk of phys-
ical or psychological harm. We refer to this as the “grave risk” ex-
ception.
In 2021, Respondent-Appellant Adriene Ferreira dos Santos
left Brazil with her daughter, Y.F.G., and eventually entered the
United States. The child’s father, Petitioner-Appellee Wellekson
Gonçalves Silva, shared custody of Y.F.G., and he petitioned for the
child’s return to Brazil under the Convention and ICARA.
Dos Santos believes this case fits within the “grave risk” ex-
ception. She has proffered evidence that Silva has repeatedly phys-
ically abused her and others, including in front of Y.F.G., and that
he has emotionally abused Y.F.G. Based on this evidence, dos San-
tos contends that Y.F.G.’s return to Brazil would impose a signifi-
cant risk of harm on the child. Meanwhile, Silva denies that he has
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23-10918 Opinion of the Court 3
abused dos Santos or Y.F.G. and argues that there is no significant
risk of harm to the child in Brazil.
Following a bench trial at which both parents testified, the
district court ordered that Y.F.G. be returned to Brazil. The district
court expressly found Silva not to be credible, but because the dis-
trict court concluded that dos Santos 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 Y.F.G. in Brazil.
After careful review of the record, we conclude that the dis-
trict court applied an erroneous legal standard in weighing the con-
flicting testimony. Accordingly, we vacate the district court’s order
and remand for further consideration.
I. BACKGROUND
A. Factual Background
Dos Santos and Silva met in 2011 in Brazil. They have one
child together, their daughter Y.F.G., who was born in 2012 in
Guanhães, Brazil. The three lived together in Guanhães until April
2020, when dos Santos and Silva separated.
Dos Santos submits that her relationship with Silva was
plagued by frequent abusive incidents, which caused her to fear for
her own safety and her daughter’s well-being. She testified about
several of these incidents. On dos Santos’s telling, the abuse began
during her pregnancy when Silva beat her, dragged her around the
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house, held her by her neck until she couldn’t breathe, and told her
that he would remove the baby from her belly with his own hands.
But the abuse did not end there, dos Santos said. Rather, she
testified that the beatings continued after Y.F.G. was born, includ-
ing an incident where Silva tied dos Santos up with an electrical
cord and told her to say goodbye to the world because it would be
her last day—all of which occurred in front of a crying Y.F.G. Dos
Santos also recounted several times when Silva pointed a gun at
her, which she said happened so often that she “lost [her] count,”
as well as an incident in which Silva dragged dos Santos by her hair
in front of Y.F.G., who yelled at Silva to let dos Santos go. Dos
Santos estimated that she was abused almost every day.
Dos Santos also testified that she was not the only victim of
Silva’s violence. She said she observed an incident in which Silva
told dos Santos’s grandmother that he would “explode her house
with dynamite,” and after she asked him to leave, Silva pushed dos
Santos’s grandmother, causing her to fall and break two ribs.
According to dos Santos, Silva’s abuse reached even the fam-
ily’s pet kitten. Dos Santos recalled a sadistic incident in which
Silva fed the kitten to a pit bull, and as the kitten neared its death,
Silva set the kitten on fire. Later, she said, Silva described burning
the family’s kitten to Y.F.G.
Silva also allegedly inflicted purely psychological harm on
dos Santos, including an instance in which he used social networks
to share intimate photos of dos Santos that he had taken when they
lived together.
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After dos Santos and Silva separated in 2020, Y.F.G. initially
lived with dos Santos. Later that year, dos Santos obtained a re-
straining order against Silva, prohibiting him from, among other
things, coming within 100 meters of dos Santos. Brazilian records
indicate that Silva repeatedly violated the restraining order and that
he was arrested and imprisoned under the “decree of preventative
imprisonment.” 1 Following his release, Silva filed a lawsuit to con-
firm his custodial rights, and in June 2021, a Brazilian judge ordered
that dos Santos and Silva share custody of Y.F.G.
In August 2021, dos Santos left Brazil with Y.F.G. and trav-
eled to the United States. She did so without Silva’s consent to
move Y.F.G. to the United States. After Silva learned that Y.F.G.
was in the United States, he filed an application with the Brazilian
government for the return of Y.F.G. under the Convention. The
Brazilian government referred the matter to the United States De-
partment of State—the United States’s central authority under the
Convention.
B. Procedural Background
In August 2022, in federal district court, Silva filed a Petition
under the Convention seeking Y.F.G.’s return to Brazil.
1 After the arrest, Y.F.G. pressured dos Santos to help secure Silva’s release,
and dos Santos withdrew the restraining order. The withdrawal certificate
suggests that Silva’s absence had “caus[ed] suffering” to Y.F.G. and that Silva
“d[id] not constitute a danger to the minor.”
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Consistent with the Convention’s directive to “use the most
expeditious procedures available,” Convention, Art. 2, the district
court conducted a bench trial in February 2023. Several witnesses
testified at trial, including both Silva and dos Santos.
In his testimony, Silva largely denied dos Santos’s allegations
of abuse. Specifically, he testified that he never hit or threatened
her and that he did not push dos Santos’s grandmother or kill the
family’s pet kitten. Although Silva acknowledged that he had been
arrested in Brazil for crimes involving his sales business and for an
incident in which in damaged dos Santos’s car, he maintained that
he had not been arrested for violence involving his daughter.
When asked about the intimate photos of dos Santos that were
posted online, Silva testified that his computer was taken during a
robbery at his store, after which the photos ended up online.2
After Silva testified and before dos Santos took the stand, the
district judge said, “I want to know whether anyone actually wit-
nessed these so-called incidents on which [dos Santos] is relying to
establish an affirmative defense. That’s really all I’m interested in.”
Dos Santos then testified and recounted the many instances
of alleged abuse and violence, as we’ve mentioned. Besides dis-
cussing these incidents, dos Santos’s testimony also included a
2 Besides Silva, Silva’s brother and Silva’s grandmother provided brief testi-
mony. Silva’s brother said he had seen Silva get angry with dos Santos but had
not seen physical violence. Both witnesses testified that they had not seen
Silva abuse Y.F.G.
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description of an altercation between Silva and dos Santos’s subse-
quent boyfriend and an incident in which Silva damaged dos San-
tos’s car. According to dos Santos, a neighbor captured the car-
damage incident on video. But neither the boyfriend nor the neigh-
bor testified during the bench trial, nor did dos Santos offer the
video recording into evidence.3
Dos Santos’s counsel called two other witnesses to testify at
trial. One was Roberta Campos, who was a friend of dos Santos’s
grandmother, has known dos Santos for many years, and traveled
from Brazil to the United States with dos Santos and Y.F.G. Cam-
pos testified about having observed dos Santos with bruises and
about an incident in which Y.F.G. screamed while Silva beat dos
Santos. 4 The other witness was Lucas Pimenta, dos Santos’s fi-
ancé. He testified about threatening social media messages that he
received that he believed came from Silva.5
The district court then presented its factual findings. It be-
gan by expressly discrediting Silva’s testimony. As the district court
explained, Silva did not deny some of the allegations, instead
3 Another potential witness, dos Santos’s grandmother, passed away.
4 During cross-examination, Silva’s counsel sought to impeach Campos with
evidence that she had been arrested for trafficking drugs with dos Santos
5 Dos Santos’s counsel sought to call two more witnesses who were physically
located in Brazil—Arlene Campos and Bianca Camargo, who were identified
as dos Santos’s friend and niece, respectively. But because of technical diffi-
culties, they could not testify.
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arguing that there were no documents to help prove them. The
district court also pointed to specific defects in Silva’s testimony in-
cluding, for example, that Silva’s story about his computer being
stolen “ma[de] no sense to [the district court],” and that Silva
“would not even acknowledge that there were any disagreements
or any tumultuous relationship between himself and [dos Santos].”
So the court “d[id not] find that [Silva] has credibility,” and reiter-
ated that “he’s not very credible at all.”
Despite expressly discrediting Silva’s testimony, the district
court found that dos Santos had not met her burden to prove by
clear and convincing evidence that Y.F.G. is at grave risk. While
dos Santos testified about several distinct incidents, “on many of
the points,” the district court explained, dos Santos “was the only
one who testified to these points.” The court found that it was
“curious” that she presented no documents to corroborate allega-
tions of broken ribs nor were there police reports that supported
any of these incidents. And the district court noted that many of
the alleged incidents occurred several years before dos Santos and
Y.F.G. came to the United States.
To sum up its findings, the court said,
[D]espite the court’s concerns about the child being
returned to Brazil and being with her father because
I do—it does sound like there are some issues with the
father; I cannot deny that that is my impression based
on what I’ve heard in terms of possible anger man-
agement issues, and, and terms of making threats to
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23-10918 Opinion of the Court 9
people—but, still, the court’s hands are tied in the ab-
sence of the respondent meeting her burden of proof
by clear and convincing evidence. And, again, I find
that she has not.
The district court therefore granted Silva’s petition for re-
turn of the child under the Convention and ICARA. It also denied
dos Santos’s motion to stay its order pending appeal. In denying
the stay, the district court concluded, among other things, that the
Brown line of cases, which holds that “a statement by a [criminal]
defendant, if disbelieved by the jury, may be considered as substan-
tive evidence of the defendant’s guilt,” United States v. Brown, 53 F.3d
312, 314 (11th Cir. 1995) (emphasis in original), has no application
in civil cases. This Court then granted dos Santos’s emergency mo-
tion to stay the district court’s order pending appeal.
II. STANDARDS OF REVIEW
In a proceeding under the Convention, we review a district
court’s factual findings for clear error and its legal conclusions de
novo. Gomez v. Fuenmayor, 812 F.3d 1005, 1007 (11th Cir. 2016).
The clear-error standard is “highly deferential,” and we uphold the
district court’s factual determinations “so long as they are plausible
in light of the record viewed in its entirety.” Id. at 1007–08 (citation
omitted). “Whether a grave risk of harm to a child exists under the
terms of the Hague Convention is a mixed question of law and fact,
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10 Opinion of the Court 23-10918
which we review de novo.” Baran v. Beaty, 526 F.3d 1340, 1345
(11th Cir. 2008). 6
III. DISCUSSION
We first discuss the Convention and ICARA’s legal frame-
work as well as the Supreme Court’s and our precedent applying
it. We then turn to the facts here and explain the legal standard
that governs the determination here.
A. We have applied the “grave-risk” exception in cases with
severe allegations of abuse.
The Hague Convention “was adopted in 1980 in response to
the problem of international child abductions during domestic dis-
putes.” Golan v. Saada, 142 S. Ct. 1880, 1888 (2022) (quoting Abbott
v. Abbott, 560 U.S. 1, 8 (2010)). The United States and Brazil are
both signatories. See Hague Conference on Private Int’l Law, Con-
vention of 25 Oct. 1980 on the Civil Aspects of Int’l Child Abduc-
tion, Status Table. 7 In 1988, Congress implemented the Conven-
tion through ICARA. The International Child Abduction
6 In Golan v. Saada, the Supreme Court held that, within the grave-risk analy-
sis, an appellate court reviews a district court’s consideration of potential ame-
liorative measures for abuse of discretion. 142 S. Ct. 1880, 1895 (2022). Be-
cause our decision is based on the district court’s misunderstanding of the con-
trolling legal standards, which we continue to review de novo (even after Go-
lan), we need not determine whether Golan impacts our standard of review
when a district court applies the correct legal standards in a grave-risk analysis.
7 https://www.hcch.net/en/instruments/conventions/status-table/?cid=24
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Remedies Act, 102 Stat. 437 (1988), as amended, 22 U.S.C. §§ 9001–
9011; Golan, 142 S. Ct. at 1889. ICARA permits a person seeking
relief under the Convention “to file a petition for return of a child
in state or federal court,” and directs reviewing courts to “‘decide
the[se] case[s] in accordance with the Convention.’” Golan, 142 S.
Ct. at 1889 (quoting 22 U.S.C. § 9003(d)) (alterations in original).
The Convention’s “core premise” is that children’s interests
in custody matters “are best served when custody decisions are
made in the child’s country of ‘habitual residence.’” Monasky v. Ta-
glieri, 140 S. Ct. 719, 723 (2020) (quoting Convention Preamble).
For that reason, the Convention “ordinarily requires the prompt
return of a child wrongfully removed or retained away from the
country in which she habitually resides.” Id.But that general rule has certain exceptions, including Arti-
cle 13(b) of the Convention, which applies when “‘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.’” Convention, Art. 13(b); see also Golan, 142 S. Ct. at 1888
n.2 (describing Convention’s other exceptions). The Supreme
Court has referred to the “grave risk” exception as the Conven-
tion’s “[p]rime” exception. Monasky, 140 S. Ct. at 723. After all, the
Convention “is designed to protect the interests of children and
their parents, and children’s interests may point against return in
some circumstances.” Golan, 142 S. Ct. at 1893 (citation omitted).
Ordinarily, ICARA first requires that the party petitioning
for a child’s return establish by a preponderance of the evidence
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that the child was “wrongfully removed or retained within the
meaning of the Convention.” 22 U.S.C. § 9003(e)(1). Here,
though, no one disputes that Silva has established his prima facie
case that dos Santos wrongfully removed Y.F.G. from Brazil.
Instead, this case turns solely on the application of the Con-
vention’s “grave risk” exception. And on that point, as the party
opposing return, dos Santos bears the burden to establish “by clear
and convincing evidence” that the exception applies and that
Y.F.G. should therefore not be returned. Id. § 9003(e)(2).
Several contemporaneous commentators elaborated on the
meaning of the Convention’s “grave risk” exception. The Conven-
tion’s official commentary, for example, explains that the Conven-
tion’s general goal of preventing children’s removal “gives way be-
fore the primary interest of any person in not being exposed to
physical or psychological danger or being placed in an intolerable
situation.” Elisa Perez-Vera, Explanatory Report: Hague Conference
on Private International Law, ¶ 29, in 3 Acts and Documents of the
Fourteenth Session 426 (1980). 8 And the U.S. Department of State
noted that “[t]he person opposing the child’s return must show that
the risk to the child is grave, not merely serious.” Hague
8 We have recognized that “Perez-Vera was the official reporter of the Hague
Conference and her report is recognized ‘as the official history and commen-
tary on the Convention and is a source of background on the meaning of the
provisions of the Convention.’” Gomez, 812 F.3d at 1011 n.1 (quoting Ruiz v.
Tenorio, 392 F.3d 1247, 1252 n.2 (11th Cir. 2004)). See also Golan, 142 S. Ct. at
1893 n.8 (relying on Perez-Vera commentary).
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International Child Abduction Convention; Text and Legal Analy-
sis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986). 9 To illustrate this
principle, the State Department provided a few examples: the ex-
ception was not intended to encompass situations in which money
at home is scarce or where educational opportunities are more lim-
ited, but the exception does cover instances in which a parent sex-
ually abuses a child and the court’s denial of the petition “would
protect the child from being returned to an ‘intolerable situation.’”
Id.We have previously considered several cases in which the
district court found that the “grave risk” exception was satisfied.
In Baran, we affirmed the district court’s denial of a father’s
petition to return a child to Australia after the child’s mother had
fled to the United States to escape the father’s abuse. 526 F.3d at
1346. The district court found, among other things, that the father
was emotionally unstable and prone to uncontrolled destructive
outbursts of rage, was physically and verbally abusive towards the
child’s mother in the child’s presence, and physically endangered
the child, both intentionally and unintentionally. Id. at 1345–46.
We explained that the district court “was not required to find [the
child] had previously been physically or psychologically harmed”
to deny return. Id. at 1346. Instead, the district court had to find
9 “It is well settled that the Executive Branch’s interpretation of a treaty is
entitled to great weight.” Abbott, 560 U.S. at 15 (citation and internal quotation
marks omitted). See also Golan, 142 S. Ct. at 1892 (relying on State Department
commentary).
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only that the child’s return “would expose him to a present grave
risk” of harm. Id.
We likewise affirmed a district court’s denial of a mother’s
petition to return a child to Venezuela in Gomez. 812 F.3d at 1015.
There, the district court found that the father endured repeated
threats on his life from the child’s mother and her new partner, and
that the child’s mother had likely been responsible for several inci-
dents including a shooting of the father’s girlfriend and the planting
of drugs in the child’s paternal grandmother’s car. Id. at 1008–09,
1012. We affirmed the district court’s findings and rejected the pe-
titioning mother’s arguments that the child should be returned be-
cause the risks the child’s father faced were irrelevant to the child.
Id. at 1012–13. We explained that the “grave risk” exception may
apply “where violence is directed at a parent that may threaten the
well-being of a child.” Id. at 1013. This rule is justified by “the
powerful effect that a pattern of serious violence directed at a par-
ent may have on his children.” Id. at 1014. After all, “it requires no
stretch of the imagination to conclude that serious, violent domes-
tic abuse repeatedly directed at a parent can easily be turned against
a child.” Id.B. The district court made two legal errors.
Turning to this case, the district court expressed “concerns
about the child being returned to Brazil and being with her father”
because, in the court’s view, “there are some issues with the fa-
ther,” including “possible anger management issues” and “making
threats to people.” But the district court felt its “hands [were] tied”
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because the only evidence of the incidents dos Santos described
was dos Santos’s testimony. Indeed, even before dos Santos testi-
fied and the court could evaluate her credibility on the stand, the
district court emphasized that “really all [it was] interested in” was
“whether anyone actually witnessed these so-called incidents on
which [dos Santos] is relying to establish an affirmative defense.”
So even though the district court expressly found that Silva’s testi-
mony was not credible and did not make a similar finding as to dos
Santos, it concluded that dos Santos did not meet her burden to
establish the harm Y.F.G. faced in Brazil.
We believe this reasoning reflects two legal errors. Cf. Walsh
v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000) (correcting district court’s
legal analysis after district court “raised the article 13(b) bar higher
than the Convention requires”). First, given that Silva testified
about the alleged abuse and the district court expressly did not be-
lieve him, under our precedent, it’s not necessarily the case that dos
Santos’s testimony was uncorroborated. And second, even with-
out independent corroboration, a factfinder’s belief in a single wit-
ness’s testimony alone can be sufficient to satisfy a party’s burden
to prove a fact by clear and convincing evidence.
Either error alone requires us to vacate and remand for fur-
ther consideration under the correct standard. And both together
provide all the more reason that we must remand.
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1. Given the district court’s finding that Silva was not credi-
ble, the district court could have chosen to consider Silva’s
testimony as corroborating evidence that the return of
Y.F.G. to Brazil represents a “grave risk” to the child.
We begin by observing that, on this record, it is not neces-
sarily the case that dos Santos’s testimony was uncorroborated. As
we’ve noted, the district court explained several times that it did
not believe Silva’s testimony, in which he denied committing vio-
lent acts. In fact, as the district court saw things, some of Silva’s
explanations “ma[de] no sense.” Not only that, but the district
court pointed out that Silva himself did not even bother to deny
some of the incidents, instead simply responding to the allegations
by saying that dos Santos did not have documentation to prove
them.
The Supreme Court has explained that the demeanor of a
witness “may satisfy the tribunal, not only that the witness’ testi-
mony is not true, but that the truth is the opposite of his story.”
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962) (per curiam) (ci-
tation and quotation marks omitted). A witness’s denial when he
“has a motive to deny,” the Court continued, “may be uttered with
such h[e]sitation, discomfort, arrogance or defiance, as to give as-
surance that he is fabricating, and that, if he is, there is no alterna-
tive but to assume the truth of what he denies.” Id.; see also Wright
v. West, 505 U.S. 277, 296 (1992) (plurality opinion) (“[I]f the jury
did disbelieve West, it was further entitled to consider whatever it
concluded to be perjured testimony as affirmative evidence of
guilt.”).
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We have applied this principle many times. For instance, in
United States v. Eley, we held that “[a] false explanatory statement
may be viewed by a jury as substantive evidence tending to prove
guilt.” 723 F.2d 1522, 1525 (11th Cir. 1984). As we explained there,
the defendant’s “explanation [was] so implausible that it g[ave] rise
to positive evidence in favor of the government.” Id. Brown pro-
vides another example: we held there that a criminal defendant
who chooses to take the stand “runs the risk that if disbelieved the
[factfinder] might conclude the opposite of his testimony is true.”
53 F.3d at 314 (citation and internal quotation marks omitted). And
if the factfinder disbelieves the defendant’s testimony, his state-
ment can be used against him “as substantive evidence of [his] guilt.”
Id. (emphasis in original). See also United States v. Margarita Garcia,
906 F.3d 1255, 1273 (11th Cir. 2018) (explaining that a defendant
who testifies “runs ‘the risk that in so doing he will bolster the Gov-
ernment case enough for it to support a verdict of guilty’” (quoting
McGautha v. California, 402 U.S. 183, 215 (1971)).
We’ve also relied on this straightforward principle outside
the criminal context. For instance, in Swaters v. Osmus, a presiding
judge did not believe a testifying litigant’s explanation for his failed
drug test that resulted in revocation of his pilot certificate. 586 F.3d
1315, 1320 (11th Cir. 2009). We noted the significance of the
judge’s express finding that the litigant “was not a credible witness,”
and we explained that “[t]hat determination itself can be regarded
as substantive evidence in favor of the [judge’s] ultimate conclu-
sion” against that litigant. Id. at 1323 (emphasis in original). We
added that the judge’s adverse conclusion about the litigant’s
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credibility served as an “independent source of support” for the de-
cision. Id.Of course, it makes sense that a factfinder can use a witness’s
noncredible testimony as corroborating substantive evidence
against the witness’s interests, regardless of whether the case arises
in the civil or criminal context. Consider a practical example: if a
witness denies having hit someone and the factfinder does not be-
lieve that witness, then necessarily, the factfinder has concluded
that the witness did hit someone.
Here, that means the district court could consider its lack of
faith in Silva’s testimony as corroborating substantive evidence
that dos Santos’s allegations are true. In invoking the “grave risk”
exception, dos Santos accused Silva of engaging in physical vio-
lence and emotional and physical abuse. Silva testified and, for the
most part, denied that the alleged instances of abuse happened.
But the district court expressly found that Silva was “not
very credible at all.” It said that it didn’t find him to be “believable”
and expressed concerns about his “issues,” including “possible an-
ger management issues” and “making threats to people.” In other
words, the district court observed Silva’s testimony and deter-
mined that he was not trustworthy.
By testifying, Silva risked that the district court would not
believe him or find him to be a credible witness. And because the
district court did not believe him, it could have chosen to consider
Silva’s testimony as corroborating substantive evidence that the al-
leged abusive incidents did, in fact, occur. In this way, the district
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23-10918 Opinion of the Court 19
court had the option of considering Silva’s testimony as corrobora-
tive of dos Santos’s testimony. In other words, dos Santos’s testi-
mony was not necessarily uncorroborated on this record because
the district court could have found that Silva’s noncredible denials
and non-denial denials corroborated dos Santos’s assertions about
the physical violence and physical and emotional abuse.
Our dissenting colleague emphasizes that the district court
was permitted to—but was not required to—consider Silva’s non-
credible testimony as corroborating substantive evidence in dos
Santos’s favor. That is surely true. But it’s also irrelevant here.
Rather, the problem here is that the district court did not know
that, so the district court never considered whether to rely as cor-
roborating substantive evidence on Silva’s denials and non-denial
denials of burning the family cat, breaking dos Santos’s grand-
mother’s ribs, and assaulting and emotionally abusing dos Santos.
We know that the district court did not know that it could
consider testimony it found noncredible as corroborating substan-
tive evidence because the district court expressly said so. In its or-
der denying dos Santos’s motion for stay pending appeal, the dis-
trict court acknowledged that dos Santos “cite[d] several criminal
appeal cases in her motion to support the argument that testimony
by a litigant, if disbelieved by the trier of fact, may be substantive
evidence of guilt.” Doc. No. 77 at 4 n.1 (cleaned up). In evaluating
that argument, the district court said, “[e]ven if [these cases] were
applicable in this civil context, which they are not, none of [dos San-
tos’s] citations support that the undersigned . . . was required to
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20 Opinion of the Court 23-10918
find ‘guilt’ based on either Parties’ lack of credibility.” Id. (empha-
sis added). So we know that the district court was under the mis-
taken impression that this rule did not apply in the civil context.
We also know that although the district court observed that the
rule is permissive, not mandatory, the district court expressed no
position on whether, had it known the rule applied in the civil con-
text, it would have relied on Silva’s noncredible testimony as cor-
roborating substantive evidence in considering whether dos Santos
satisfied her clear-and-convincing evidence burden.
And that is the problem. Because the district court did not
know that it could consider Silva’s noncredible testimony as cor-
roborating substantive evidence, it had no reason to consider—and
certainly did not announce—how that information might have af-
fected its decision.
The Dissent disagrees. It says that the district court already
decided not to view what it found to be the noncredible testimony
of Silva as corroborating substantive evidence. But the district
court’s order on which the Dissent relies supports no such conclu-
sion.10 To be sure, if it intended to do so, the district court could
10 The district court wrote,
Respondent cites several criminal appeal cases in her motion
to support the argument that “[t]estimony by a litigant, if dis-
believed by the trier of fact, may be substantive evidence of
guilt.” However, it is unclear to the Court how this demon-
strates a strong likelihood of success on appeal in this case
given that, by Respondent’s own characterizations, these cases
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23-10918 Opinion of the Court 21
have said that even if the corroborating-substantive-evidence rule
applies outside the criminal context, it would have chosen not to
apply it. And had the district court done so, we would have re-
spected that. Cf. United States v. Keene, 470 F.3d 1347, 1349 (11th
Cir. 2006) (affirming criminal sentence after district court explained
that it would have applied the same sentence even if it calculated
sentencing guidelines incorrectly). But that’s not what the district
court said.
As the Dissent points out, see Dissent at 12, the district judge
here is experienced, and she knows how to say what she means. So
we take her at her word. And her words studiously avoided saying
that she would not rely on Silva’s denials and non-denial denials as
substantive evidence. Instead, her words said only that even if the
rule applies, it’s a permissive, not a mandatory, one. Indeed, the
district judge stated that she made her observation to explain why
“it is unclear to the Court how [the non-mandatory, permissive na-
ture of the corroborating-substantive-evidence rule] demonstrates
a strong likelihood of success on appeal.” In other words, the court
concluded only that, because nothing required the district court to
rely on Silva’s statements as substantive evidence, dos Santos could
only support that the finder of fact may infer guilt in a criminal
trial based on a litigant’s testimony. Even if they were appli-
cable in the civil context, which they are not, none of Respond-
ent’s citations support that the undersigned—the trier of fact
at the February 17, 2023 evidentiary hearing—was required to
find “guilt” based on either Part[y’s] lack of credibility.
Doc. No. 77 at 4 n.1 (Citation omitted).
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22 Opinion of the Court 23-10918
not show that this Court would find a substantial likelihood that
the district court reversibly erred. After all, the district court made
these remarks to explain why it was denying a stay—and one of the
“most critical” factors in determining whether to grant a stay is
whether the movant has shown a substantial likelihood of success
on the merits. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d
1312, 1317 (11th Cir. 2019).
But one thing the district court’s statement unambiguously
did not do was indicate that the court already determined how it
would weigh Silva’s testimony if it could consider that testimony
as corroborating substantive evidence. And the Dissent’s argu-
ment to the contrary reads something into the order that just isn’t
there.
That said, we do not suggest that, on remand, the district
court must consider Silva’s testimony as corroborating substantive
evidence that he presents a “grave risk” to Y.F.G. The district court
observed Silva testify, and whether to consider that testimony as
corroborating substantive evidence against Silva is entirely with
the purview of the district court. See Golan, 142 S. Ct. at 1895–96
(explaining applicable legal standard and allowing district court “to
apply the proper legal standard in the first instance”). But the dis-
trict court was mistaken when it concluded that it did not have the
choice to consider Silva’s noncredible denials as evidence support-
ing dos Santos’s testimony.
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23-10918 Opinion of the Court 23
2. A single witness’s testimony alone and uncorroborated by
any other evidence can support a finding by clear and con-
vincing evidence.
The district court’s second error was concluding that a single
witness’s testimony is necessarily insufficient to satisfy the clear-
and-convincing-evidence standard. Neither the Convention,
ICARA, nor governing precedent requires a respondent to provide
independent corroboration to establish that a child would face a
“grave risk” of harm if they were returned to their resident country.
Instead, ICARA requires that the respondent provide “clear and
convincing evidence” that the exception applies. 22 U.S.C.
§ 9003(e)(2). And that standard does not necessarily mandate that
a witness’s testimony be corroborated to be credited by the fact
finder. 11
11 Contrary to the Dissent’s suggestion that this argument was not raised, dos
Santos specifically argued in her brief that “[t]he fact that the trial court did
not repudiate [dos Santos’s] testimony could support a non-frivolous argu-
ment that an appellate court should reverse the trial court altogether and re-
mand for entry of judgment on behalf of [dos Santos].” She further elaborated,
asserting,
The fact that appellate courts give substantial deference to a
district court’s fact-finding doesn’t mean that they accept fact-
finding that is completely dependent upon credibility determi-
nations that have not been articulated. While a district court’s
credibility determinations are entitled to deference, district
courts must still sufficiently explain those credibility determi-
nations to allow for meaningful review by an appellate court.
In other words, a trial court cannot leave an appellate court in
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24 Opinion of the Court 23-10918
Returning to the criminal context, we’ve held that a wit-
ness’s “uncorroborated testimony” can be “sufficient to support a
conviction if it is not on its face incredible or otherwise unsubstan-
tial.” United States v. Milkintas, 470 F.3d 1339, 1344 (11th Cir. 2006);
see also United States v. Nerey, 877 F.3d 956, 969 (11th Cir. 2017)
(“[T]estimony of a co-conspirator, even if uncorroborated, is suffi-
cient to support a conviction.” (citation omitted)). So it’s no sur-
prise that we’ve also said that if a witness’s uncorroborated testi-
mony can be “sufficient to support a conviction,” it can also be “suf-
ficient for purposes of the ‘clear and convincing’ rule.” United States
v. Trevino, 565 F.2d 1317, 1319 (5th Cir. 1978). 12 See also Eleventh
Circuit Pattern Jury Instructions (Civil Cases) 3.4 (2022) (“The
number of witnesses testifying concerning a particular point
doesn’t necessarily matter.”); Eleventh Circuit Pattern Jury Instruc-
tions (Criminal Cases) B5 (2022) (same). Along those same lines,
we do not always require corroboration in the immigration context
because “[i]f an alien’s testimony is credible, it may be sufficient,
without corroboration, to satisfy his burden of proof in establishing
the position of speculating as to how the evidence was
weighed.
(Citations omitted). These arguments tee up the issues that dos Santos’s tes-
timony was sufficient to result in judgment in her favor and that the district
court’s explanation for its findings was not sufficient to allow an appellate
court to determine that the district court understood the legal standards.
12 Decisions of the former Fifth Circuit issued before October 1, 1981, are
binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
USCA11 Case: 23-10918 Document: 32-1 Date Filed: 05/26/2023 Page: 25 of 42
23-10918 Opinion of the Court 25
his eligibility for relief from removal.” Kueviakoe v. U.S. Att’y Gen.,
567 F.3d 1301, 1304 (11th Cir. 2009).
These examples illustrate that dos Santos could have satis-
fied her burden to establish “clear and convincing evidence” based
on only her own testimony. Unlike with Silva’s testimony, the dis-
trict court did not discredit dos Santos’s testimony. If the district
court credited her testimony and believed that Silva was, in fact,
responsible for the various abusive incidents, the district court
could have reasonably concluded that dos Santos established that
Y.F.G.’s return to Brazil risked physical or psychological harm to
the child. See Gomez, 812 F.3d at 1014 (“[I]t requires no stretch of
the imagination to conclude that serious, violent domestic abuse
repeatedly directed at a parent can easily be turned against a
child.”).
Our dissenting colleague believes that we should assume
that the district court understood that dos Santos’s testimony alone
could satisfy her burden because, in the Dissent’s view, the record
does not “explicitly indicate that the district court did not under-
stand the law.” Dissent at 9. We respectfully disagree. 13
13 The Dissent refers to the district judge’s years of experience on the bench
to affirm the decision below. To be clear, no one questions the district court’s
credentials or its ability to discern and apply the correct legal standard in the
usual case. Nor are we in any way assuming that the district court “do[es]n’t
know the law.” Dissent at 12. But no judge is infallible or immune from com-
mitting error. Cf. Dietz v. Bouldin, 579 U.S. 40, 53 (2016) (“All judges make mis-
takes. (Even us.)”). And correcting legal errors is what appellate courts do.
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26 Opinion of the Court 23-10918
For starters, before dos Santos even began her testimony—
that is, before the district court had any opportunity to evaluate dos
Santos’s credibility and determine whether her testimony alone
might provide clear and convincing evidence—the district court
said that “all [it was] interested in” was “whether anyone actually
witnessed these so-called incidents on which [dos Santos] is relying
to establish an affirmative defense.” In other words, the district
court indicated that it believed that dos Santos’s testimony alone
could not, under any circumstances, be enough to carry her bur-
den.
The Dissent says we have taken this statement out of con-
text and that the district court’s use of the word “anyone” referred
to only the paternal uncle and the paternal great-grandmother.
Dissent at 9–10. But we are comfortable that our characterization
accurately reflects what happened. Indeed, we think the record
speaks for itself in that respect. After all, it’s clear that when the
district court expressed its concern about “whether anyone actually
witnessed these so-called incidents on which [dos Santos] is rely-
ing,” it meant whether “anyone” (as that inclusive word is com-
monly understood), other than dos Santos (who hadn’t yet testi-
fied) witnessed the events—not just whether “the paternal uncle
and the paternal great-grandmother” did, as the Dissent urges. No
other interpretation makes sense. In fact, the paternal uncle and
the paternal great-grandmother were witnesses for Silva, so the dis-
trict court had no reason to have expected them to offer testimony
indicting him. Nor does the Dissent offer any reasonable
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23-10918 Opinion of the Court 27
explanation as to why we should read an artificial limit into the dis-
trict court’s plain words.
The record also contains another indication that the district
court did not know that it could rely solely on dos Santos’s testi-
mony to find clear and convincing evidence if it was so moved. At
the end of the hearing, when the district court explained its find-
ings, it again emphasized that, in its view, the record contained no
independent corroboration to support dos Santos’s testimony. The
court found that dos Santos did not meet her burden because she
“was the only one who testified” to the allegations and because
there were no documents or video evidence to support dos San-
tos’s testimony. Based on these “explicit indications in the record,”
Dissent at 9, we must conclude that the district court erroneously
believed that dos Santos’s testimony alone was insufficient to meet
the clear-and-convincing standard.
The Dissent suggests that the district court’s comments on
dos Santos’s inability to recall specifically when violent incidents
occurred or Y.F.G.’s age at the times of these incidents shows that
the district court knew it could consider dos Santos’s testimony
alone in determining whether dos Santos established clear and con-
vincing evidence of “grave risk.” Once again, we must disagree
with the Dissent’s view of the record. While the district court
noted dos Santos’s inability to provide precise timeframes, it also
showed that it believed dos Santos’s testimony about the threat
Silva posed. Indeed, the district court voiced its “concerns about
the child being returned to Brazil and being with her father”
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28 Opinion of the Court 23-10918
because the court believed “there are some issues with the father,”
including “anger management issues” and “making threats to peo-
ple.” Yet the district court felt its “hands [were] tied” because dos
Santos did not meet her burden—and it thought she did not meet
her burden because she did not provide corroborating substantive
evidence. On this record, we cannot be sure how the district court
would evaluate the testimony if it knew its hands were not tied and
that dos Santos’s testimony alone could fulfill her burden.
Of course, as with the question of whether to treat Silva’s
discredited testimony as corroborating substantive evidence that
he presents a “grave risk” of harm to Y.F.G., we do not decide
whether, on this record, dos Santos met the requisite standard and
satisfied her ultimate burden. That determination remains for the
district court to decide on remand.
IV. CONCLUSION
In sum, when a factfinder does not believe an interested wit-
ness’s testimony, it may—but is not required to—consider that wit-
ness’s discredited testimony as corroborating substantive evidence
that the opposite of the testimony is true. And when a single wit-
ness provides the only evidence on some point, that testimony,
without corroboration, can still meet the standard of clear and con-
vincing evidence if the factfinder concludes that it is credible. Be-
cause the district court’s reasoning did not account for these prin-
ciples, we vacate the district court’s order and remand for further
consideration in light of this opinion.
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23-10918 Opinion of the Court 29
VACATED AND REMANDED.
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23-10918 LUCK, J., dissenting 1
LUCK, Circuit Judge, dissenting:
The Hague Convention on the Civil Aspects of International
Child Abduction “was adopted in 1980 in response to the problem
of international child abductions during domestic disputes.” Golan
v. Saada, 142 S. Ct. 1880, 1888 (2022) (quotation omitted). “[T]he
Convention generally requires the ‘prompt return’ of a child to the
child’s country of habitual residence when the child has been
wrongfully removed to or retained in another country.” Id. This
general rule is based on the “core premise” that “the interests of
children in matters relating to their custody are best served when
custody decisions are made in the child’s country of habitual resi-
dence.” Id. (cleaned up).
But the Convention has exceptions. Return, for example, “is
not required if there is a grave risk that return would expose the
child to physical or psychological harm or otherwise place the child
in an intolerable situation.” Id. (cleaned up). This grave-risk excep-
tion is “narrowly construed,” Baran v. Beaty, 526 F.3d 1340, 1345
(11th Cir. 2008), and the parent opposing removal has the burden
of showing by clear and convincing evidence “that return would
expose the child to a grave risk of harm,” Golan, 142 S. Ct. at 1889.
Adriene Ferreira dos Santos wrongly removed her daughter
from the girl’s habitual residence in Brazil and from the lawful joint
custody of her father, Wellekson Gonçalves Silva, and abducted
her to the United States. No one disputes this. Normally, that
would mean the child would be promptly returned to Brazil. See
id. But the mother claimed that the grave-risk exception applied.
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2 LUCK, J., dissenting 23-10918
So the district court held an evidentiary hearing on the
grave-risk exception. It heard from the child’s father, her paternal
uncle, her paternal great-grandmother, her mother, her mother’s
family friend, and her mother’s fiancé. After considering the evi-
dence, the district court found that the mother had “failed to estab-
lish by clear and convincing evidence that the child will face a grave
risk of physical or psychological harm should she be returned to
Brazil.” Without an established exception, the district court
granted the father’s petition for return of the child.
The mother asks us to reverse the return order, arguing that
the district court failed to: (1) explain its credibility determinations;
(2) make a specific finding on the mother’s testimony describing
abuse; and (3) use its disbelief of the father as corroborating sub-
stantive evidence of abuse. The majority opinion picks up on this
last point and adds (4) that the district court also erred by “conclud-
ing that a single witness’s testimony is necessarily insufficient to
satisfy the clear-and-convincing standard.” I respectfully dissent.
First, the mother contends that the district court’s “one par-
agraph order directing the return of the child to Brazil provides no
explanation whatsoever regarding its credibility determinations.”
The district court, the mother maintains, did not “sufficiently ex-
plain [its] credibility determinations to allow for meaningful review
by an appellate court.”
I disagree. Before issuing its written order, the district court
sufficiently explained its credibility determinations—and the basis
USCA11 Case: 23-10918 Document: 32-1 Date Filed: 05/26/2023 Page: 32 of 42
23-10918 LUCK, J., dissenting 3
for them—at the evidentiary hearing. The district court began by
explaining why it found the father “not very credible at all”:
I don’t find that the [father] was believable. He didn’t
even deny certain incidents but, instead, pretty much
hinted at that nobody could prove them because there
were no lawsuits filed, there were no medical docu-
ments, and he kept saying that over and over again.
And this story about the computer being stolen
makes no sense to me, that a computer is stolen, no
indication that anyone had any access to his password
or anything, and then somehow, some way, photos
from that computer start appearing on social media.
So I don’t find that [the father] has credibility.
And as [the mother] just pointed out, the [fa-
ther] would not even acknowledge that there were
any disagreements or any tumultuous relationship
between himself and the [mother].
The district court then explained that, despite the father’s
lack of credibility, the mother “did not” meet her burden of show-
ing by “clear and convincing evidence” that the child would be in
grave danger if returned:
[The mother] came in and testified to many in-
cidents that happened. But on many of the points,
she was the only one who testified to these points.
Wasn’t brought out until the court asked that her
grandmother was deceased, so that may explain why
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4 LUCK, J., dissenting 23-10918
her grandmother was not present to testify or availa-
ble.
Still, the court finds that it’s curious that, with
injuries as serious as broken ribs, there isn’t some kind
of documentation or some other witness that could
corroborate that.
The court didn’t see any police reports, at least
none presented at trial—we heard mention of
them—that corroborated any of these reports. A wit-
ness, Ricardo, was brought up by [the mother] that
witnessed some of this. We didn’t hear any from
him—anything from him. . . .
He could certainly have testified by Zoom,
even if he couldn’t get to our courtroom to testify in
person.
We heard of a witness named Monique who
supposedly witnessed some of this. Nothing from
her during this trial did we hear, either. We only
heard about her and what she witnessed from [the
mother].
We heard about a video of some car vandalism
that was committed by the [father]. And I think, un-
less I’m remembering this incorrectly, that he
acknowledged some portion of something being
done to the car. There was some issue of slapping a
car or some kind of term I wasn’t really sure about.
But, certainly, if there is some kind of video that the
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23-10918 LUCK, J., dissenting 5
[mother] herself testified about, seems like we would
have seen that at trial. Didn’t see that as well.
Also, the incidents that were described were
very hazy in the sense that there was no specific time.
We didn’t even get close to establishing a time for
many of the incidents. Many of the incidents, it was
established, were several years ago. We don’t know
how old the child was. That was fuzzy.
This explanation belies the mother’s second argument,
which was that the district court “made no specific finding” as to
her testimony describing “extraordinarily outrageous violence and
abuse.” But the district court did make findings that the mother
hadn’t met her burden to prove the grave-risk exception because
she didn’t present obvious and available corroborating evidence
and her testimony was hazy and not specific.
As to the lack of corroboration, the district court found that
the mother didn’t offer any medical records, police reports, or wit-
ness testimony to verify the serious injuries she claimed the father
inflicted—even though she testified, for example, that he broke her
grandmother’s ribs. The district court also found that Ricardo “cer-
tainly could have testified by Zoom,” but it “didn’t hear . . . any-
thing from him,” even though the mother testified that Ricardo
witnessed abuse. The district court added that it heard “[n]othing
from [Monique] during this trial . . . either,” even though the
mother testified that Monique also witnessed abuse. The district
court said that it would’ve expected for the video of the father van-
dalizing the mother’s car to be presented at trial, but it “[d]idn’t see
USCA11 Case: 23-10918 Document: 32-1 Date Filed: 05/26/2023 Page: 35 of 42
6 LUCK, J., dissenting 23-10918
that as well,” even though the mother claimed a video existed. And
the district court found it “curious” that the hearing was the first
time that the father’s alleged abuse had been discussed in a court,
even though the mother “had the opportunity to raise those old
incidents in the Brazil court to determine the custody.”
As to the lack of detail in the mother’s testimony, the district
court found that the mother’s testimony was “very hazy” and
“no[t] specific.” “[T]he incidents that” the mother “described,” the
district court explained, “were very hazy in the sense that there was
no specific time. We didn’t even get close to establishing a time for
many of the incidents.”
The mother’s third argument (picked up by the majority
opinion) is that, because the district court found the father’s testi-
mony “not believable and lack[ing] credibility,” it could and should
have used its “disbelief of [his] testimony” as corroborating “sub-
stantive evidence” that he abused the mother. For its part, the ma-
jority opinion adds that the district court “did not know” it could
use the father’s incredible testimony as corroborating substantive
evidence because the district court said the legal principle didn’t
apply to civil cases.
But, in its order denying the stay motion, the district court
stressed that, even if it could consider the father’s incredible testi-
mony as corroborating substantive evidence, it wouldn’t be “re-
quired” to find for the mother “based on either [p]arties’ lack of
credibility.” In other words, the district court already conveyed
that, even assuming it could consider the father’s incredible denials
USCA11 Case: 23-10918 Document: 32-1 Date Filed: 05/26/2023 Page: 36 of 42
23-10918 LUCK, J., dissenting 7
as corroborating substantive evidence for the mother, it wouldn’t
do so. (This is why the district court found that the mother was
not “likely to succeed on appeal.”) The district court heard the fa-
ther’s testimony but didn’t view it as corroborating substantive ev-
idence supporting the grave-risk exception, and no one has pointed
to anything requiring the district court to do so. There’s nothing
new for the district court to decide on remand.
The majority opinion takes a cramped view of the stay or-
der. The district court, the majority opinion says, “studiously
avoided saying that [it] would not rely on [the father’s] denials and
non-denial denials as substantive evidence.” But the district court
did not studiously avoid the issue. The mother sought a stay be-
cause the father’s testimony, even “if disbelieved by the trier of fact,
may be substantive evidence.” The district court addressed that
issue head-on, explaining that, even assuming it may use incredible
testimony as corroborating substantive evidence, it was not “re-
quired to find ‘guilt’ based on either [p]arties’ lack of credibility,”
and then found that the mother was not likely to succeed on the
same argument she makes now. Even under the best of circum-
stances, we do not require that judicial decisions have the meta-
physical precision the majority opinion demands. Cf. Nealy v.
Warner Chappell Music, Inc., 60 F.4th 1325, 1332 (11th Cir. 2023)
(“We cannot read a court’s opinion like we would read words in a
statute. Instead, when interpreting and applying words in a judicial
opinion, we must consider the context, such as the question the
court was answering, the parties’ arguments, and facts of the case.”
(citations omitted)). And these were not the best of circumstances.
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8 LUCK, J., dissenting 23-10918
The district court had extra time pressure to issue its stay order be-
cause this case was brought under the Convention. See Chafin v.
Chafin, 742 F.3d 934, 936–37 (11th Cir. 2013) (“The Supreme Court
has recommended that courts take steps to decide these cases as
expeditiously as possible, for the sake of the children who find
themselves in such an unfortunate situation.” (cleaned up)).
Finally, in an argument not raised by the parties, the major-
ity opinion contends that the district court erred by “concluding
that a single witness’s testimony is necessarily insufficient to satisfy
the clear-and-convincing evidence standard.” 1 For this, the
1
Compare that argument to the one the mother makes. She argues that the
fact that the trial court did not repudiate the [mother’s] testi-
mony could support a non-frivolous argument that an appel-
late court should reverse the trial court altogether and remand
for entry of judgment on behalf of [the mother]. . . .
The fact that appellate courts give substantial defer-
ence to a district court’s fact-finding doesn’t mean that they ac-
cept fact-finding that is completely dependent upon credibility
determinations that have not been articulated. While a district
court’s credibility determinations are entitled to deference, dis-
trict courts must still sufficiently explain those credibility de-
terminations to allow for meaningful review by an appellate
court. In other words, a trial court cannot leave an appellate
court in the position of speculating as to how the evidence was
weighed.
The mother’s argument does not tee up the argument the majority opinion
makes. They are different. The majority opinion argues that the district court
erred by making a finding that the mother’s testimony was insufficient as a
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23-10918 LUCK, J., dissenting 9
majority opinion points to two statements the district court made
at the evidentiary hearing as explicit indications in the record show-
ing it “erroneously believed that [the mother’s] testimony alone
was insufficient to meet the clear-and-convincing standard”:
(1) the court’s statement that “I want to know whether anyone ac-
tually witnessed these so-called incidents on which [the mother] is
relying to establish an affirmative defense. That’s really all I’m in-
terested in”; and (2) the statement that, “on many of the points,
[the mother] was the only one who testified.” But neither of these
statements explicitly indicate that the district court did not under-
stand the law.
As to the first statement, the majority opinion hyper-focuses
on the word “anyone” and takes it out of the context in which it
was used. Here’s the full context:
The Court: Okay. We are back on the record
following lunch.
We’re going to go with our next witness.
Let me just give you all some parameters here.
It’s going to be a short witness, as these next witnesses
are. The court is not interested in hearing testimony
about the kind of relationship these two had, whether
matter of law to prove the grave-risk exception. The mother, on the other
hand, argues that the district court erred by not making findings about the
mother’s testimony that would allow for meaningful appellate review.
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10 LUCK, J., dissenting 23-10918
they were good people, how much criminal history
they have.
I want to know whether anyone actually wit-
nessed these so-called incidents on which [the
mother] is relying to establish an affirmative defense.
That’s really all I’m interested in.
And the way that I see it, [the father] only
needs to ask a couple of questions, then we go to [the
mother] and see what they are going to try to bring
out, and then, again, I give [the father] the chance to
redirect if you need to straighten up some stuff. But
basically you’re just establishing whether they wit-
nessed these things.
So you may proceed with your next witness.
The district court’s reference to “anyone” was to the wit-
nesses taking the stand right after the lunch break: the paternal
uncle and the paternal great-grandmother. The district court
wanted to know whether these “short witness[es]” saw the father
behave abusively. It was trying to focus their brief testimony on
the issue it had to decide—the grave-risk exception—and to avoid
the irrelevant testimony that had bogged down the hearing before
the lunch break. Nothing about the context shows that the district
court believed that the mother’s testimony was “necessarily insuf-
ficient” to satisfy the exception. At worst, the statement, in con-
text, was ambiguous, and we must read “ambiguous oral state-
ments” by the district court “to be consistent (not inconsistent)
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23-10918 LUCK, J., dissenting 11
with the law.” See United States v. Rodriguez, 751 F.3d 1244, 1259
(11th Cir. 2014) (explaining that, when we review district judges’
“extemporaneous spoken words of explanation,” we don’t “as-
sume that the district judges do not know the law” (quotation
omitted)).
As to the statement that the mother was the only witness
who testified to the abuse, the district court was stating a fact. The
mother was the only one who testified about “many of the points.”
But this statement does not mean that the district court believed
the mother’s testimony was necessarily insufficient to prove the
grave-risk exception. Not even close. The district court exhaust-
ively ticked through the obvious and available corroborating evi-
dence that the mother did not offer at the evidentiary hearing—
medical and courts records, police reports, Ricardo, Monique, the
video of the father vandalizing the mother’s car.
Then, left with the mother’s testimony, the district court
found that, on certain points, she was “very hazy,” “fuzzy,” and
“no[t] specific.” If anything, these findings showed that the district
court knew the mother’s testimony could be used to prove the
grave-risk exception. Otherwise, if the district court believed that
the mother’s testimony was necessarily insufficient as a matter of
law, there wouldn’t have been a need to discuss the quality and
specificity of her testimony.
The majority opinion brushes the district court’s explicit
findings aside because, it claims, the district court “believed [the
mother’s] testimony about the threat [the father] posed” and still
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12 LUCK, J., dissenting 23-10918
found against the mother. But that part of the majority opinion is
not in quotes because the district court said no such thing. The
district court never found the mother’s testimony believable. 2 In-
stead, it explicitly found that her testimony was, in part, “very
hazy,” “fuzzy,” and “no[t] specific.” The district court’s “hands
[we]re tied” because, with only uncorroborated and partially hazy,
fuzzy, and nonspecific testimony, it could not find by clear and con-
vincing evidence that there would be a grave risk to the child if she
was returned to her habitual residence. We shouldn’t ignore the
explicit findings the district court did make for findings it never
made. See United States v. B. G. G., 53 F.4th 1353, 1366 (11th Cir.
2022) (“We cannot ignore the explicit good-faith finding that the
district court actually made for an inconsistent implicit finding that
the district court never made.”).
The majority opinion ends by noting that all judges make
mistakes. Indeed, we do. But what we don’t do is assume that
district judges don’t know the law. The district judge in this case
has been on the bench for twelve years—first as a state trial court
judge, and then, for the last eight years (and change), as a federal
district judge. She has presided over countless trials and heard
countless evidentiary hearings. After “listen[ing] to everything”
and “tak[ing] everything into consideration” at the evidentiary
hearing—including the mother’s testimony—the district judge
found that the mother didn’t meet her burden to show by clear and
2
Even the mother acknowledged that “the [d]istrict [c]ourt made no specific
finding” about her testimony.
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23-10918 LUCK, J., dissenting 13
convincing evidence that there would be a grave risk to the child if
she were returned to Brazil. We should not assume, without more
than the majority opinion offers, that the district judge did not un-
derstand that the mother’s testimony alone could satisfy the clear-
and-convincing-evidence standard.
While we may have made different findings and reached dif-
ferent conclusions after hearing the same evidence, “[a]ssessing the
weight of evidence and credibility of witnesses is reserved for the
trier of fact.” Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1559
(11th Cir. 1988). “It is emphatically not within the province of an
appellate court to reweigh the evidence and the credibility of the
witnesses at trial.” United States v. Hernandez, 141 F.3d 1042, 1052
(11th Cir. 1998). Because weight and credibility are reserved for
the factfinder, and the mother hasn’t shown any legal errors, I
would affirm the district court’s order.