Acosta v. Acosta, et al., No. 12-2663 (8th Cir. 2013)
Annotate this CasePetitioner, the father, sought the return of his children to Peru under the Hague Convention on the Civil Aspects of International Child Abduction, and its implementing legislation, the International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11601 et seq. The district court found that petitioner's violent temper and inability to cope with the prospect of losing custody of the children would expose them to a grave risk of harm were they returned to Peru. On appeal, petitioner challenged the district court's determination and respondent, the mother, cross-appealed. The court concluded that the district court did not abuse its discretion in admitting an expert's testimony that several factors indicated that returning the children to Peru would expose them to a high risk of harm where the factual basis for the expert's testimony was sufficient. The court also concluded that the district court did not abuse its discretion in declining to return the children to Peru where petitioner did not make a specific proposal for appropriate undertakings before the district court. Accordingly, the court affirmed the judgment and dismissed the cross-appeal as moot.
Court Description: Civil case - Hague Convention. No error in admitting testimony from defendant's expert witness regarding factors indicating that returning the couple's children to Peru would subject them to a high risk of harm as the testimony was not generic, had a factual basis and was subjected to cross-examination; district court did not err in finding the children would be subject to a grave risk of harm if they were returned to Peru with plaintiff, nor did it abuse its discretion in refusing to order their return; the burden is on the moving party to show that conditions or "undertakings" could be imposed to protect the children upon their return, and plaintiff failed to do so
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