BOGDAN RADU V. PERSEPHONE JOHNSON SHON, No. 22-16316 (9th Cir. 2023)
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This is an international child custody dispute between Respondent and Petitioner over their minor children. While the family was residing in Germany, Respondent took the children to the United States and refused to return them. The Hague Convention generally requires children to be returned to the state of habitual residence so that the country’s courts may adjudicate the merits of any custody disputes. The Ninth Circuit previously vacated and remanded the district court’s first order to return the children to Germany. Because the Supreme Court issued its decision in Golan while the court was considering Respondent’s appeal of the second return order, the court also remanded that order for the district court’s reconsideration. The district court then granted the petition a third time.
The Ninth Circuit affirmed the district court’s order granting, on a second remand, Petitioner’s petition against Respondent for the return, pursuant to the Hague Convention, of the parties’ two children to Germany. Agreeing with other circuits, the panel held that, in cases governed by the Hague Convention, the district court has discretion as to whether to conduct an evidentiary hearing following remand and must exercise that discretion consistent with the Convention. The panel held that, on the second remand, the district court did not abuse its discretion in declining to hold a third evidentiary hearing when the factual record was fully developed. The panel held that, in making determinations about German procedural issues, the district court neither abused its discretion nor violated Respondent’s due process rights by communicating with the State Department and, through it, the German Central Authority
Court Description: Hague Convention The panel affirmed the district court’s order granting, on a second remand, Bogdan Radu’s petition against Persephone Johnson Shon for the return, pursuant to the Hague Convention, of the parties’ two children to Germany. The district court held an evidentiary hearing and granted Radu’s petition. The district court found a grave risk of psychological harm if the children were returned to Germany in the custody of Radu, but it determined that those risks would be mitigated if the children returned in Shon’s temporary custody. The district court ordered Shon to return with the children and retain full custody until the German courts resolved the merits of the parties’ custody dispute. On appeal, in Radu I, the panel vacated and remanded for the district court to determine whether the sole-custody measure would be enforceable in Germany. On remand, the district court held a second hearing. In a second return order, the district court concluded that the enforceability of the sole-custody remedy was uncertain but was no longer necessary. Based on new evidence that a German court would take months to resolve custody, the district court held that ordering Shon to return with the children to Germany, where the default rule was joint custody, sufficiently ameliorated the risk of psychological harm. Shon again appealed. The panel remanded for RADU V. SHON 3 reconsideration in light of Golan v. Saada, 142 S. Ct. 1880 (2022), which clarified that, where there is a grave risk that a child’s return would expose the child to physical or psychological harm, consideration of ameliorative measures is discretionary rather than mandatory. On remand, the district court ordered return based on the existing record. Following Golan, the district court exercised discretion to consider ameliorative measures. The district court again stated that ordering Shon to return to Germany with the children would ameliorate the risk of psychological harm. Shon filed the current appeal. On a limited remand, the district court issued a clarifying order. Agreeing with other circuits, the panel held that, in cases governed by the Hague Convention, the district court has discretion as to whether to conduct an evidentiary hearing following remand and must exercise that discretion consistent with the Convention. The panel held that, on the second remand, the district court did not abuse its discretion in declining to hold a third evidentiary hearing when the factual record was fully developed. The panel held that, in making determinations about German procedural issues, the district court neither abused its discretion nor violated Shon’s due process rights by communicating with the State Department and, through it, the German Central Authority. The panel further held that the Federal Rules of Evidence and its hearsay rules do not apply to foreign law materials. Finally, the panel held that the record provided adequate support for the district court’s fact findings underlying its clarified return order, and the law-of-the-case doctrine did not prevent the district court from revisiting its prior ruling on grave risk. The panel therefore affirmed the district 4 RADU V. SHON court’s grant of the petition for the children’s return with the ameliorative measures ordered by the district court. Concurring, Chief Judge Murguia wrote that she concurred fully in the principal opinion. She wrote separately to express her view that, in Radu I, the panel should not have declined to allocate a burden of proof on the reasonableness of an ameliorative measure. Chief Judge Murguia wrote that a future panel should follow other circuits and hold that, when a petitioner proffers a measure to ameliorate the grave risk of harm, it is the petitioner’s burden to establish that the measure is reasonably appropriate and effective.
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