In Re: Ariel Adan

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

2-14-2006

In Re: Ariel Adan

Precedential or Non-Precedential: Precedential

Docket No. 05-3045

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-3045

IN RE: APPLICATION OF ARIEL ADAN

ELENA ESTHER AVANS,

Appellant

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 04-cv-05155)

District Judge: Honorable William H. Walls

Argued September 29, 2005

Before: ALITO* and AMBRO, Circuit Judges

RESTANI,** Judge

(Opinion filed: February 14, 2006)

Elliot H. Gourvitz, Esquire (Argued)

150 Morris Avenue

P.O. Box 476

Springfield, NJ 07081

Counsel for Appellant

Walter A. Lesnevich, Esquire (Argued)

Francesca Marzano-Lesnevich, Esquire

Michael R. Mildner, Esquire

Lesnevich & Marzano-Lesnevich

21 Main Street,

Court Plaza South

Hackensack, NJ 08601

Counsel for Appellee

*

Then Judge, now Justice, Alito heard oral argument in

this case but was elevated to the United States Supreme Court

on January 31, 2006. The opinion is filed by a quorum of the

panel. 28 U.S.C. § 46(d).

**

Honorable Jane A. Restani, Chief Judge, United States

Court of International Trade, sitting by designation.

2

OPINION OF THE COURT

AMBRO, Circuit Judge

Elena Esther Avans1 appeals from an order of the United

States District Court for the District of New Jersey granting

appellee Ariel Adan’s application for return of his daughter

Arianna to Argentina pursuant to the Hague Convention on the

Civil Aspects of International Child Abduction (the “Hague

Convention” or “Convention”), Oct. 25, 1980, T.I.A.S. No.

11,670, 19 I.L.M. 1501 (1980). Avans asks us to reverse the

District Court’s order and dismiss the application. For the

reasons stated below, we vacate the District Court’s order and

remand for further proceedings consistent with this opinion.

I.

The factual background of this case is troubling. We say

this not only because of the ominous accusations of abuse that

have been directed at Adan, but also because the record on

appeal is woefully incomplete. The parties’ submissions to our

1

In her brief, Avans refers to herself as “Elena Esther

Mazza.” Because she has not made a motion to amend the

official caption of this case to reflect a change in name, we shall

refer to her as “Avans” in this opinion.

3

Court are of little help in piecing together the chain of events at

issue, and the District Court did not make detailed, written

findings of fact to assist us. The facts and procedural history

stated herein, therefore, are taken from the District Court record,

including transcripts and filings, and (to the extent they are

helpful) the parties’ submissions to this Court.

A. Background

Avans is a naturalized U.S. citizen and former girlfriend

of Adan, a citizen of Argentina. The parties met in Argentina in

1998 at a support group for recovering drug and alcohol abusers

and began cohabiting shortly thereafter. According to Avans’

testimony before the District Court, Adan became violent

shortly after Avans moved in with him. She alleges that Adan

locked her in his bedroom, beat her, and threatened her with

further harm if she ever left him. In 1999 Avans became

pregnant by Adan. In March 2000, while she was still pregnant,

Avans came to the United States and began living in New

Jersey. Adan followed her in April 2000 and (according to

Avans) the abuse resumed. She contends that Adan tried to

suffocate her with a pillow, and she filed a report with the

Roselle, New Jersey police department alleging that he “picked

up two laundry bags and threw them over her head.” Avans

gave birth to Arianna on June 15, 2000.

The parties lived in New Jersey for the next three months.

Avans alleges that during this time the abuse continued,

4

including Adan’s threats to drown the child if Avans ever left

him. She filed another report with the Roselle police on June

30, 2000 alleging that Adan pushed her while holding Arianna

and, when Avans left to walk to the police station to file a

report, Adan drove after her and told her to return home because

he had left Arianna alone. In September, Adan announced that

he wanted Avans and Arianna to return with him to Argentina.

According to Avans, Adan knelt next to Arianna’s crib and

screamed in the child’s ear until Avans finally agreed to his

demand. On September 15, 2000 the parties and their daughter

returned to Argentina.

Avans contends the abuse got worse while she was in

Argentina, including an incident in March 2002 when Adan

allegedly threatened Avans and Arianna with a gun, another

incident from the same month when Avans claims Adan hit her

at a birthday party, and a later incident when Adan purportedly

chained the gate to Avans’ home shut so she could not get out.

Throughout these incidents, Avans contends that she repeatedly

sought the assistance of the Argentine police and court system

but they did nothing, which she attributes to bribes Adan

allegedly paid to police and judges. Avans eventually began

living apart from Adan, and the parties reached an informal

custody agreement regarding Arianna. Aside from short visits

to the United States in May 2001 and May 2003, Avans and

Arianna remained in Argentina.

5

Avans alleges that Adan began sexually abusing their

daughter in 2003. Specifically, she contends that in June 2003

she discovered a pubic hair in her daughter’s vagina, which

Adan attributed to Arianna being in a dirty bed. Avans also

contends that on several occasions Arianna would return from

visits with her father, sometimes after having been gone for only

a few hours, with wet hair. The child allegedly told her mother

that Adan took baths with her and “loves [her] with his tongue,”

whereupon the child showed her mother that Adan apparently

had kissed her and put his tongue inside her mouth. Avans also

alleges that her daughter said that Adan “was putting something

hot in her butt” that hurt. In addition, Avans alleges Adan

pushed Arianna so hard that she vomited, and then proceeded to

rape Avans in front of Arianna.

After these incidents, Avans went to family court in

Argentina, accompanied by her landlord and neighbors, and

filed a complaint against Adan that resulted in a 90-day

temporary restraining order against him. According to Avans,

Adan violated the restraining order and the police would not

enforce it. Shortly before the February 2004 return date on the

temporary restraining order, Avans brought her daughter to the

United States.

Adan agrees with Avans’ chronology of their relationship

but contests her allegations of abuse. He contends that Avans

was under the influence of drugs and could not take care of

Arianna. He states that he paid all expenses related to Arianna’s

6

care and upbringing in Argentina, and denies having ever raped

Avans or bribed police officers or judges. He also denies having

sexually assaulted Arianna or abusing Avans, although the

transcript of his hearing testimony reveals that he did not

specifically deny particular acts of abuse. He admits using

marijuana and alcohol while he lived with Avans, but states that

she used them as well. His brief before our Court dismisses

Avans’ remaining allegations as “gossip that is irrelevant to the

issues at bar.” Appellee’s Br. at 6.

B. Legal Proceedings in the United States

Adan eventually traced a Western Union wire transfer to

Avans and discovered she and Arianna had returned to New

Jersey. Although the record is unclear on the precise date, Adan

came to New Jersey sometime in the spring of 2004 looking for

his daughter. In April 2004 Avans obtained a temporary

restraining order against Adan from the Superior Court in Union

County, New Jersey. Adan filed the application that is the

subject of this appeal in the United States District Court for the

District of New Jersey in October 2004.

The District Court held a hearing on June 6 and 7, 2005,

at which it heard testimony from Avans and Adan consistent

with the factual background recounted above. At this hearing,

the Court also learned that Adan had filed a criminal complaint

against Avans in Argentina for kidnaping Arianna, and that the

Argentine authorities had issued a warrant for her arrest and

7

were seeking extradition. The Court also heard testimony from

Avans that Arianna had been seeing a therapist in New Jersey

regarding sexual behaviors the child had exhibited, and received

into evidence a photograph that Adan took of Arianna and sent

to Avans in which the girl is wearing her underwear over her

head like a mask.

On June 7, 2005 the District Court issued a one-sentence

order granting Adan’s petition for return of the child and

ordering Avans to return Arianna to Argentina immediately.

Although the Court made no formal written findings of fact, the

District Judge did make some oral comments regarding the

credibility of the witnesses and their testimony in the course of

announcing his decision. He concluded that “the respondent

[Avans] is a little more credible” than Adan and that “the

petitioner [Adan] lied or was not being truthful when he denied

that he had ever verbally threatened [Avans] or abused her, if we

use that term in the context of verbal abuse.” The Court

described Adan as

effusive and just running all over

the field in giving answers to

questions which did not deal with

[the alleged abuse]. But when he

was asked those questions [related

to the alleged abuse], he sort of

more or less clammed up and gave

us very bald, sterile [answers,]

8

which was great[ly] at odds with

the . . . man whom I saw constantly

running off at the mouth, to use the

vernacular, on the stand in a very

hyper manner, which is quite

consistent with the manner in

which he is portrayed by the

respondent [and is] not inconsistent

with what she claims he did.

Nonetheless, the District Court concluded that Avans had

not demonstrated by clear and convincing evidence that Arianna

would be subject to physical or psychological harm if returned

to Argentina, as required by the Convention. With respect to the

allegations of sexual abuse, the District Judge concluded that

Arianna’s statement that her father “was putting something hot

in her butt” that hurt was “no proof whatsoever of sexual abuse

[because] [t]hat can be anything.”2 As for Avans’ discovery of

a pubic hair in Arianna’s vagina, the Judge found “that without

anything else means nothing, particularly since there has been

no evidence . . . of having [the] child readily examined by a

competent medical person to determine whether there had been

true sexual abuse or whether, as the petitioner says, the child had

2

During the hearing, the Judge interrupted Avans’

testimony on this issue, stating that “as a parent and a

grandparent that can mean a lot of things . . . so I don’t know

what that means. . . . [T]hat means nothing to me.”

9

been lying on a dirty bed.” The Judge also did not place much

reliance on Arianna’s statement that her father “love[d] [her]

with his tongue,” finding the statement “not significant because

. . . it’s not unusual in this country at least for parents and

grandparents to at times in playing with young toddlers to kiss

them with tongues on the cheeks and then sometimes the tongue

may have gone too far.” From the transcript, it does not appear

that the District Court made any findings regarding the

allegations that Adan abused Avans and raped her in front of

Arianna, and the Court did not mention the allegations that Adan

took frequent baths with the child and screamed in her ear, or

regarding the photograph of Arianna wearing her underwear

over her face. The District Court also found that the March

2002 gun incident would have been a “substantial factor” in

proving a grave risk of harm to Arianna, but discounted its

importance because it happened about 23 months before Avans

removed Arianna from Argentina.

Based on this analysis, the District Court concluded that

Avans’ allegations did not constitute “a showing of a grave risk”

to Arianna if she was returned to Argentina. The Court further

concluded that, even if there was a grave risk of harm to

Arianna, he would still be inclined to exercise his discretion to

order Arianna returned, as “this matter is best determined by

Argentinian courts because it is all interwoven with a struggle,

as I said, for custody and determination of domestic abuse,

which is not the purpose of the Convention.”

10

C. Post-Hearing Issues

On June 14, 2005 Avans filed a notice of appeal. The

next day, the District Court ordered her to comply with its order

on the merits by purchasing an airline ticket to Argentina for

Arianna no later than June 17, 2005. On June 16, 2005 we

granted an emergency stay of this order pending review and

disposal of Avans’ appeal. In light of the stay, Arianna remains

in the United States.

On July 22, 2005 Avans moved the District Court to

supplement the record on appeal with recently uncovered

evidence pursuant to Federal Rule of Appellate Procedure

10(e)(2). This evidence included: (1) documents establishing

that Avans succeeded in obtaining a permanent restraining order

against Adan in New Jersey on June 28, 2005 due to Adan’s

repeated violations of the temporary restraining order; (2) an

e-mail from Adan to Avans dated January 27, 2004, in which he

tells her “when I see you I think I will rape you totally;” and (3)

a message dated March 5, 2004, in which Adan tells Avans

“now that my mind is clear from drugs and from alcohol I can

realize all the time I lost and all the damages I caused you, (and

[Arianna]).” The District Court denied this motion on August

9, 2005.3 Avans also brings to our attention that the Argentine

3

We note that the e-mails are not admissible on appeal.

In denying Avans’ motion, the District Court correctly noted

that Rule 10(e)(2) allows amendment of the record on appeal

11

only to correct inadvertent omissions, not to introduce new

evidence. See United States ex rel. Mulvaney v. Rush, 487 F.2d

684, 687 n.5 (3d Cir. 1973) (“The purpose of the rule is to

permit correction or modification of the record transmitted to the

Court of Appeals so that it adequately reflects what happened in

the District Court.”). Moreover, we will not consider new

evidence on appeal absent extraordinary circumstances, such as

those that render the case moot or alter the appropriateness of

injunctive relief, a change in pertinent law, or facts of which a

court may take judicial notice. See Goland v. Cent. Intelligence

Agency, 607 F.2d 339, 370 n.7 (D.C. Cir. 1978) (per curiam).

The e-mails do not fall within any of these categories and we

therefore cannot consider them.

As for the subsequent developments in the New Jersey

criminal proceedings against Adan, although such evidence may

ordinarily be judicially noticed, see Landy v. Fed. Deposit Ins.

Corp., 486 F.2d 139, 150-51 (3d Cir. 1973), we decline to do so

here. Avans has not challenged the District Court’s refusal to

consider this evidence, nor has she made a proper motion to our

Court for such consideration. Indeed, besides the motion to the

District Court (the denial of which she does not appeal), the only

attempt Avans made to have this evidence considered on appeal

is her response to our September 8, 2005 order directing the

parties to submit separate letter memoranda regarding the status

of any relevant legal proceedings in Argentina. Her reply

characterized our order as “invit[ing] counsel to go beyond the

record to also submit to the Court the present status of the

domestic violence proceedings against the petitioner in the

United States.” Our order did not invite counsel to do so. In

this context, we have no choice but to conclude that Avans has

12

criminal court dropped the extradition request against her in

August 2005 on condition that she voluntarily appear in

Argentina to respond to the kidnaping charges.

On appeal, Avans asserts that the District Court erred in

finding that the Convention required Arianna’s return to

Argentina. For the reasons that follow, we vacate the District

Court’s June 7, 2005 order and remand the case for further

proceedings consistent with this opinion.

II.

The District Court had jurisdiction over this case under

28 U.S.C. § 1331, as it is a civil action arising under the laws or

treaties of the United States, and 42 U.S.C. § 11603(a), which

grants state and federal courts “concurrent original jurisdiction

of actions arising under the Convention.” Our jurisdiction rests

upon 28 U.S.C. § 1291, since Avans filed a timely notice of

appeal from a final decision of the District Court.

III.

A. Standard of Review

The Convention is codified in United States law by the

waived her opportunity to have us consider this evidence on

appeal.

13

International Child Abduction Remedies Act, 42 U.S.C. § 11601

et seq. The purpose of the Convention is to “protect children

internationally from the harmful effects of their wrongful

removal or retention and to establish procedures to ensure their

prompt return to the State of their habitual residence, as well as

to secure protection for rights of access.” Hague Convention,

preamble, 19 I.L.M. at 1501; see Yang v. Tsui, 416 F.3d 199,

201 (3d Cir. 2005) (same). Under Article 3 of the Convention,

removing a child from a country is wrongful when:

[a] it is in breach of rights of

custody attributed to a person, an

institution or any other body, either

jointly or alone, under the law of

the State in which the child was

habitually resident immediately

before the removal or retention; and

[b] at the time of removal or

retention those rights were actually

exercised, either jointly or alone, or

would have been so exercised but

for the removal or retention.

14

The rights of custody

mentioned in sub-paragraph [a]

above . . . may arise in particular by

operation of law or by reason of a

judicial or administrative decision,

or by reason of an agreement

having legal effect under the law of

that State.

Hague Convention, art. 3, 19 I.L.M. at 1501. A wrongful

removal may nonetheless be justified if one of the following

exceptions applies:

[a] the person, institution or

other body having the care of the

person of the child was not actually

exercising the custody rights at the

time of removal or retention, or had

consented to or subsequently

acquiesced in the removal or

retention; or

[b] there is a grave risk that

his or her return would expose the

child to physical or psychological

harm or otherwise place the child in

an intolerable situation.

15

Hague Convention, art. 13, 19 I.L.M. at 1502.

Under these provisions, an applicant seeking return of a

child must demonstrate by a preponderance of the evidence that

he or she had and was exercising custody rights over the child

under the country of origin’s laws and that the country of origin

was the child’s habitual residence. 42 U.S.C. § 11603(e)(1)

(2000); Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir. 1995).

Upon such a showing, the burden shifts to the party that

wrongfully removed the child to show by clear and convincing

evidence that the Article 13(b) exception applies, 42 U.S.C. §

11603(e)(2)(A) (2000); Feder, 63 F.3d at 222, or by a

preponderance of the evidence that the Article 13(a) exception

applies. 42 U.S.C. § 11603(e)(2)(B). Only Article 13(b) is at

issue here.

Each of the applicant’s initial burdens — custody and

habitual residence — requires the “application of a legal

standard . . . to historical and narrative facts,” and thus an

appeals court applies a “mixed standard of review, accepting the

district court’s historical or narrative facts unless they are clearly

erroneous, but exercising plenary review of the court’s choice of

and interpretation of legal precepts and its application of those

precepts to the facts.” Id. at 222 n.9, 225; see Baxter v. Baxter,

423 F.3d 363, 367 (3d Cir. 2005) (same). We have not

explicitly articulated a standard of review for the opposing

party’s burden of proving by clear and convincing evidence that

an exception applies, but we agree with other circuit courts that,

16

for all issues arising under the Convention, a District Court’s

determination of facts is reviewed for clear error and its

application of those facts to the law, as well as its interpretation

of the Convention, are reviewed de novo. See Blondin v.

Dubois, 238 F.3d 153, 158 (2d Cir. 2001) (“Blondin II”); Shalit

v. Coppe, 182 F.3d 1124, 1127 (9th Cir. 1999); Friedrich v.

Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996) (“Friedrich II”).

B. Wrongful Removal

As a starting point, we consider the threshold question of

whether the removal of Arianna from Argentina was “wrongful”

under Article 3 of the Convention. See Hague Int’l Child

Abduction Convention: Text and Legal Analysis, 51 Fed. Reg.

10,494, 10,506 (Mar. 26, 1986) (hereinafter “Hague Convention

Analysis”) (“The obligation to return an abducted child to the

person entitled to custody arises only if the removal or the

retention is wrongful within the meaning of the Convention.”).

We must therefore determine whether the District Court erred in

finding that Adan had custody rights over Arianna at the time

she was removed, that Adan was exercising those rights, and

that Arianna was a habitual resident of Argentina.4 As noted

4

At oral argument, counsel for Adan asserted that Avans

waived any challenge to the District Court’s custody

determination because Avans did not raise the issue in her brief

to this Court. See Laborers’ Int’l Union of N. Am., AFL-CIO

v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1998) (“An

issue is waived unless a party raises it in its opening brief . . .

17

above, Adan must prove these by a preponderance of the

evidence. See Feder 63 F.3d at 222.

1. Rights of Custody and Access

The Convention defines custody rights as “rights relating

to the care of the person of the child and, in particular, the right

to determine the child’s place of residence.” Hague Convention,

art. 5(a), 19 I.L.M. at 1501. In determining custody, “the

Convention calls into play a State’s choice of law rules as well

as its internal custody rights laws.” Feder, 63 F.3d at 225. This

requires a careful examination of the country of origin’s custody

.”). While we agree with Adan that Avans’ brief is not a model

of clarity (unfortunately, Adan’s brief is even worse), Avans has

challenged the District Court’s finding that Adan had and was

exercising custody rights in Argentina at the time Arianna was

removed. Avans states in her brief that the District Court’s

custody determination is “contested” because, she argues, the

agreement between the parties gave her “full custody” in

Argentina and, moreover, Adan was not exercising any alleged

custody rights inasmuch as he was not providing child support

and was only “sporadically visiting with the child.” Avans’ Br.

at 19. Although we have held that a “passing reference to an

issue” is not sufficient to raise the issue on appeal, id. (citation

and internal quotation marks omitted), Avans “presented

substantive argument in support of [her] claim,” Voci v.

Gonzales, 409 F.3d 607, 609 n.1 (3d Cir. 2005), and we

therefore deem the issue properly presented for review.

18

laws to determine whether the party seeking the child’s return

had custody rights in that country and was exercising them,

within the meaning of that country’s law, at the time the child

was removed. Id. Once it is determined that a party had valid

custody rights under the country of origin’s laws, “[v]ery little

is required of the applicant in support of the allegation that

custody rights have actually been or would have been exercised.

The applicant need only provide some preliminary evidence that

he or she actually exercised custody of the child, for instance,

took physical care of the child.” Hague Convention Analysis,

51 Fed. Reg. at 10,507.

The duty of the host forum — in this case, the District

Court — to make a threshold determination of custody rights

under the country of origin’s laws is not novel; indeed, it

comports with the federal courts’ frequent responsibility to

examine the law and choice of law rules of another forum to

determine the rights and duties of litigants. Such a

determination does not, of course, bind the other forum to reach

the same result in future litigation, nor does it run afoul of

comity concerns. Article 3’s requirement that the host country

determine custody rights under the country of origin’s law to

ascertain whether removal was “wrongful,” and therefore

whether the Convention applies, is a straightforward question of

law of the sort federal courts routinely encounter, and thus

presents no unusual burden on the competence of our courts.

That said, the Convention does not allow the state to

19

which a child has been wrongfully taken actually to decide who

should have custody, see Hague Convention, art. 16, 19 I.L.M.

at 1503, and thus a determination by the host country that a

party had custody rights in the country of origin for purposes of

determining whether removal was wrongful under the

Convention has no bearing on the merits of a subsequent

custody determination in the country of origin once the child is

returned. Id. art. 19, 19 I.L.M. at 1503; see Feder, 63 F.3d at

221 n.5 (same); Hague Convention Analysis, 51 Fed. Reg. at

10,511 (“[A] decision under the Convention concerning the

return of the child shall not be taken to be a determination on the

merits of any custody issue. It follows that once the factual

status quo ante has been restored, litigation concerning custody

or visitation issues could proceed . . . in the child’s State of

habitual residence.”). The host country must therefore

determine, as a threshold matter, whether the party seeking the

child’s return had valid custody rights under the country of

origin’s laws, and exercised those rights, to assure that the

Convention is applicable. But, as indicated, this determination

does not actually decide the custody question, and therefore

does not resolve any subsequent custody adjudication in the

country of habitual residence.

The Convention also contrasts “rights of custody,” which

may be vindicated by an order that the child be returned to the

country of habitual residence, with “rights of access,” which

may not. Hague Convention, art. 5, 19 I.L.M. at 1501; see

Whallon v. Lynn, 230 F.3d 450, 455 n.3 (1st Cir. 2000).

20

“[R]ights of access” are those rights “to take a child for a limited

period of time to a place other than the child’s habitual

residence.” Hague Convention, art. 5(b), 19 I.L.M. at 1501; see

42 U.S.C. § 11602(7) (“[T]he term ‘rights of access’ means

visitation rights.”). The Convention affords limited remedies for

a parent who removes a child from a country in contravention of

another’s parent’s rights of access, such as “direct[ing] the

person who . . . prevented the exercise of rights of access . . . to

pay necessary expenses incurred by or on behalf of the applicant

. . . .” Hague Convention, art. 26, 19 I.L.M. at 1504. “[S]uch

remedies do not include an order of return to the place of

habitual residence,” however. Whallon, 230 F.3d at 455 n.3

(emphasis added).

2. Habitual Residence

The determination of habitual residence “is not

formulaic; rather, it is a fact-intensive determination that

necessarily varies with the circumstances of each case.”

Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir. 2004). When

a child is too young to have an intent regarding her habitual

residence, the touchstone inquiry is “shared parental intent.” Id.

at 548. As we explained in Feder,

“[a]ll that the law requires is that

there is a settled purpose. That is

not to say that the [person] intends

to stay where he is indefinitely.

21

Indeed his purpose while settled

may be for a limited period.

Education, business or profession,

employment, health, family or

merely love of the place spring to

mind as common reasons for a

choice of regular abode, and there

may well be many others. All that

is necessary is that the purpose of

living where one does has a

sufficient degree of continuity to be

properly described as settled.”

63 F.3d at 223 (quoting In re Bates, No. CA 122-89, slip op. at

10 (High Ct., Fam. Div.) (Eng. 1989)).

3. Analysis

Turning first to the question of habitual residence, Adan

no doubt proved by a preponderance of the evidence that

Argentina is Arianna’s country of habitual residence. Though

she was born in the United States, Arianna moved to Argentina

with her mother and father when she was three months old.

With the exception of two brief visits to relatives in the United

States in May 2001 and May 2003, Arianna lived in Argentina

with her parents until her mother removed her to the United

States in February 2004. Her parents are both from Argentina

and her father is an Argentine citizen. Her parents were

22

employed in Argentina, had homes in Argentina, and Arianna

was in school in Argentina. Under these circumstances, Adan

and Avans clearly had a “settled purpose” and “shared parental

intent” to raise their daughter in Argentina, and that country is

therefore her habitual residence.

The question of custody is more difficult. The record

does not reveal any court-approved agreement or adjudication

of custody in Argentina; rather, it appears the parties had an

informal agreement between themselves, but the record is

unclear on the terms of this agreement — aside from noting that

it gave Avans “custody” and established a schedule for Adan to

visit Arianna — and the parties have not provided us with the

agreement in English. Moreover, there is no evidence whether

the agreement was properly memorialized under Argentine law,

or whether the parties’ chaotic relationship caused the

agreement to be reconsidered or repudiated. Indeed, Adan

conceded in his testimony before the District Court that he did

not consider the agreement binding because it “was not ratified

in front of a judge,” and that the agreement “didn’t last long

really.” The parties have not cited, and the District Court did

not mention, any provisions of Argentine law related to the

creation, terms, or enforceability of such agreements, and we

therefore have insufficient information to conclude whether the

agreement had “legal effect under the law of [Argentina],” as

required by Article 3 of the Convention.

23

We also note that, if the agreement is enforceable under

Argentine law, it appears to vest custody rights in Avans and to

afford Adan merely a right of access via visitation, which Adan

may not vindicate through an order that Arianna be returned to

Argentina. See Whallon, 230 F.3d at 455 n.3. We do not

conclusively determine this because, as we have said, we do not

know the precise terms of the agreement, if it was in effect at the

time Arianna was removed, or if Argentine law provides a

different allocation of rights. We merely note that there is a

significant question in this case as to what type of rights Adan

has.

As for other provisions of Argentine law, although the

parties made passing — and, indeed, contradictory — references

to a section of the Argentine code during the District Court

hearing, they have not provided us with any citations to

Argentine legal authorities and the District Court did not

examine, rely on, or even mention Argentine law in determining

whether Adan had lawful custody rights over Arianna at the

time of her removal. Moreover, we have been unable to locate

relevant provisions of the Argentine code in English. The little

information we have obtained on Argentine family law is not

helpful because it is in some respects contradictory and, more

importantly, the factual record does not reveal the terms or

status of the parties’ custody arrangement.5

5

For example, it appears that in cases of divorce in

Argentina “[c]hildren under five years of age are given to the

24

Moreover, we note that the mere fact Adan filed a

criminal complaint against Avans in Argentina for kidnaping the

child is insufficient, without more, to establish that Adan had

custody of the wife,” Martindale-Hubbell Int’l L. Digest ARG-

11 (2004). It is thus possible that, although the parties were

never married, an Argentine court would find that Avans had

sole custody of Arianna at the time of removal — depending, of

course, on the terms and enforceability of the parties’ custody

agreement. Conversely, it appears that “[w]hen a parent wishes

to relocate with the child in a foreign country, he will need to

acquire the court’s authorization when a legal custody

arrangement has been settled, [as well as] when a parent has

only physical custody of the minor, since according to article

264 of the Argentine Civil Code, consent of both parents is

required in order to leave the country.” Directorate of Legal

Research, Law Library of Congress, Report for Congress –

Hague Convention on International Child Abduction 18 (2004).

Therefore, Avans apparently would have needed court

permission to take Arianna out of Argentina, although it is

unclear whether this requirement confers any “custody rights”

on Adan for purposes of Article 3. It is also highly probable that

there is an express provision in Argentine law that sets out the

default custody rights that unmarried parents share, and it is also

possible that the terms of the parties’ agreement (whatever they

may be) are enforceable under Argentine law and therefore

dispositive. All of these outstanding questions highlight the fact

that, based on the record before us, we cannot determine what

rights — custody, access, or otherwise — Adan enjoyed in

Argentina.

25

custody rights. He has not provided any evidence, for example,

that custody rights are a necessary element of standing to bring

such a complaint, or that the Argentine authorities’ acceptance

of such a complaint necessarily establishes that he had such

rights.

The District Court, for its part, merely found that Adan

“furnished and maintained contact with the child during her stay

in Argentina” because he paid for some of the child’s expenses

and saw the child on a fairly regular basis. The Court therefore

concluded it was appropriate to move directly to the question of

“whether or not [Avans] has proved clearly and convincingly

that the exceptions to . . . being required to return the child to

Argentina[] obtain.” There is not, however, any indication from

the record or from any of the available legal sources on

Argentine family law that “furnish[ing] and maintain[ing]

contact” with a child is sufficient to create valid custody rights

in Argentina. We therefore conclude that the District Court

erred in finding that Adan satisfied his burden of proof as to his

custody rights under Argentine law.

In light of the District Court’s failure to consider this

issue, we are compelled to vacate its June 7, 2005 order and

remand the case for further factfinding to determine: (1) what is

the custody law of Argentina; (2) what are the terms of the

parties’ agreement regarding custody of Arianna; (3) whether

that agreement is enforceable under Argentine law; and (4)

under the agreement (or, if the agreement is not enforceable,

26

Argentine family law), whether Adan had custody rights or mere

rights of access, and whether he was validly exercising those

rights at the time Arianna was removed. Upon the development

of a proper factual record, we shall be in a better position to

review the District Court’s factual and legal conclusions. We

further note that, pursuant to Article 15 of the Convention, the

District Court may request that the parties obtain from the

Argentine courts a determination of whether the removal of

Arianna from that country was wrongful under the Convention,

which would necessarily include an adjudication of Adan’s

custody rights under Argentine law at the time she was removed.

See Hague Convention, art. 15, 19 I.L.M. at 1503. Although

such a request is within the District Court’s discretion, we are of

the opinion that a determination of Adan’s custody rights at the

time of removal by an Argentine court (provided, of course, that

the Argentine courts have authority under Argentine law to

make such a determination at this stage) would be very helpful

in properly determining the wrongfulness of Arianna’s removal.

C. The Article 13(b) Exception

If Adan does not prove by a preponderance of the

evidence that he had valid custody rights over Arianna in

Argentina, that would be the end of the matter; the Convention

would not apply and Adan would have no basis on which to

seek Arianna’s return. If, however, Adan satisfies his burden

and establishes that he had custody rights in Argentina, the

burden would shift to Avans to prove by clear and convincing

27

evidence that the Article 13(b) exception applies. See Feder, 63

F.3d at 222. Because we conclude that the District Court erred

in its analysis of the alleged grave risk of harm to Arianna, we

request that it address those deficiencies on remand if it

concludes that Adan has satisfied his burden of establishing

custody rights.

1. Grave Risk of Harm

The Convention’s Article 13(b) exception is “narrowly

drawn.” See Feder, 63 F.3d at 226. “Were a court to give an

overly broad construction to its authority to grant exceptions

under the Convention, it would frustrate a paramount purpose of

that international agreement — namely, to ‘preserve the status

quo and to deter parents from crossing international boundaries

in search of a more sympathetic court.’” Blondin v. Dubois, 189

F.3d 240, 246 (2d Cir. 1999) (“Blondin I”) (quoting Friedrich v.

Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) (“Friedrich I”));

see Baxter, 423 F.3d at 367 (“[T]he Convention’s procedures are

designed to restore the status quo prior to any wrongful removal

or retention, and to deter parents from engaging in international

forum shopping in custody cases.”). As the U.S. State

Department has explained, an

“intolerable situation” was not

intended to encompass return to a

home where money is in short

supply, or where educational or

28

other opportunities are more limited

than in the requested State. An

example of an “intolerable

situation” is one in which a

custodial parent sexually abuses the

child. If the other parent removes

or retains the child to safeguard it

against further victimization, and

the abusive parent then petitions for

the child’s return under the

Convention, the court may deny the

petition. Such action would protect

the child from being returned to an

“intolerable situation” and

subjected to a grave risk of

psychological harm.

Hague Convention Analysis, 51 Fed. Reg. at 10,510; Baxter,

423 F.3d at 373 (same); see Blondin II, 238 F.3d at 162 (noting

that a “grave risk of harm” encompasses “situations in which the

child faces a real risk of being hurt, physically or

psychologically, as a result of repatriation,” but not “situations

where repatriation might cause inconvenience or hardship,

eliminate certain educational or economic opportunities, or not

comport with the child’s preferences”).

There is little question that, under this standard, the

abuse, sexual and otherwise, that Avans contends Adan has

29

inflicted on Arianna would, if true, qualify as an intolerable

situation and grave harm for purposes of Article 13. The

question, however, becomes whether Avans produced clear and

convincing evidence of these allegations, and whether she

established, as she must, that “‘the court[s] in the country of

habitual residence, for whatever reason, may be incapable or

unwilling to give the child adequate protection.’” Blondin II,

238 F.3d at 162 (quoting Friedrich II, 78 F.3d at 1069)

(emphasis omitted).

We also note that, in considering the Article 13(b)

exception, a court must “take into account any ameliorative

measures (by the parents and by the authorities of the state

having jurisdiction over the question of custody) that can reduce

whatever risk might otherwise be associated with a child’s

repatriation.” Blondin I, 189 F.3d at 248. Therefore, even if the

court finds that authorities in the country of habitual residence

are capable of safeguarding the child, it must still carefully tailor

its order to counter whatever risk of harm exists — including

returning the child in the custody of the parent who removed the

child — “thus reducing or eliminating the risk of harm that

might otherwise be associated with granting [the] petition.” Id.

at 249.

2. Analysis

Although the District Court found Avans more credible

than Adan and stated that Adan’s demeanor was “quite

30

consistent with the manner in which he is portrayed by the

respondent [and is] not inconsistent with what she claims he

did,” the District Court nonetheless found that Avans did not

sustain her burden of proof because: (1) her allegations of

Adan’s actions toward Arianna, even if true, were not evidence

of child abuse; (2) she did not provide corroboration of the child

abuse, such as medical examinations or police reports from

Argentina; and (3) her testimony that Adan had effectively

rigged the Argentine judiciary and police against her through

bribery was not substantiated. Although we express no opinion

on whether the quantum of Avans’ evidence proves a grave risk

of harm, we do believe the Court abused its discretion in the

manner in which it considered her evidence and tailored its

order. We therefore direct it to remedy these errors on remand

if it concludes Adan has sustained his burden of proving he had

and was exercising valid custody rights under Argentine law at

the time Arianna was removed.

As noted, the District Court Judge made no written

findings of fact, and therefore we must extract findings from his

oral decision at the hearing. The transcript reveals that the

Court did not reject Avans’ testimony that she had been

repeatedly abused, raped, and threatened with a gun,6 and the

6

We note that the evidence of Adan’s abuse of Avans is

relevant to the District Court’s determination of whether

returning Arianna to Argentina would expose the child to a

grave risk of harm. See, e.g., Walsh v. Walsh, 221 F.3d 204,

31

Court did not mention Avans’ testimony that Arianna would

return from even brief visits with her father with wet hair and

would tell her mother that Adan bathed with her, Avans’ further

testimony and accompanying police report that Adan screamed

in the child’s ear to force Avans to agree to return to Argentina,

or the photograph Adan took of Arianna with her underwear

covering her face. The Court did reject portions of Avans’

testimony that Adan had abused Arianna, not because it found

that the incidents she described did not occur but because: (1)

Arianna’s statement that her father was “putting something hot

in her butt” “c[ould] be anything”; (2) Avans’ discovery of a

pubic hair in Arianna’s vagina “means nothing” because in the

absence of medical evidence it could have resulted from “the

child . . . lying on a dirty bed”; and (3) Arianna’s statement that

her father “love[d] [her] with his tongue” was “not significant”

because parents sometimes lick their children and “sometimes

the tongue may have gone too far.”

In our view, the District Court’s analysis of Avans’

testimony is both incomplete (in that it does not take into

account large portions of her testimony that suggest a grave risk

220 (1st Cir. 2000) (holding that such evidence is relevant when

considering whether a grave risk of harm to a child exists

because “credible social science literature establishes that serial

spousal abusers are also likely to be child abusers” and “both

state and federal law have recognized that children are at

increased risk of physical and psychological injury themselves

when they are in contact with a spousal abuser”).

32

of harm to Arianna if she is returned to Argentina) and reflects

an overly compartmentalized view of child abuse. Even

assuming there is an innocent explanation for each allegation of

abuse in isolation, taken together they are far less easily

explained. Perhaps it is true that a child’s report that her father

put his tongue in her mouth is potentially innocent, but when

coupled with reports that he also “put[] something hot in her

butt,” took baths with her on several occasions, raped her

mother in front of her, took a photograph of her with her

underwear covering her face and mailed it to her mother, and

that a pubic hair was discovered in the child’s vagina, such an

incident is far less susceptible to innocent explanation. Just as

a finder of fact in state court must analyze the “totality of the

circumstances” in determining the credibility of child abuse

allegations in a criminal case, see, e.g., State v. P.H., 840 A.2d

808, 819-20 (N.J. 2004), so too is it appropriate that a District

Court consider the totality of the circumstances in determining

whether alleged abuse occurred in a case brought under the

Convention. The District Court’s treatment of the child abuse

allegations in this case leads us to conclude that it did not

consider the totality of the circumstances as we understand that

phrase.7

7

The Supreme Court has noted, albeit in a different

context, that reviewing the totality of circumstances “precludes

[a] divide-and-conquer analysis” under which a court

“evaluat[es] and reject[s] . . . factors in isolation from each

other.” United States v. Arvizu, 534 U.S. 266, 274 (2002)

(reviewing the totality of the circumstances to determine

33

We note a similar problem with the District Court’s

consideration of Avans’ contention that the Argentine courts and

authorities were unable or unwilling to protect her. The Court

concluded that Avans did not produce sufficient evidence that

“Argentinian courts are without the skill, the expertise, or the

concern to deal with the matter involving these parties.” Avans

testified about her numerous experiences with Argentine law

enforcement when police officers refused to offer her any

assistance, and the fact that Adan violated a temporary

restraining order issued by an Argentine court after the police

refused to enforce it. Adan did not contest these allegations in

his testimony, and the District Court did not discount Avans’

testimony; rather, the Court found Avans’ allegations related to

Adan’s alleged bribery of judges and police officers to be

unsubstantiated. It therefore failed to consider and reject the

majority of Avans’ proof related to the inaction of Argentine

courts and police. Although she bore the burden of setting forth

clear and convincing evidence to substantiate her claims under

Article 13, the District Court bore the responsibility to evaluate

adequately her evidence and explain in a reasoned way why that

evidence was unavailing. Its analysis in this case falls short of

that standard.

whether Border Patrol officers had reasonable suspicion to

initiate an investigatory stop of defendant’s vehicle). Indeed,

the Court noted that “[a]lthough each of the series of acts was

‘perhaps innocent in itself,’ we [have] held that, taken together,

they ‘warranted further investigation.’” Id. (quoting Terry v.

Ohio, 392 U.S. 1, 22 (1968)).

34

If, upon proper consideration of these matters, the

District Court concludes that Avans has not satisfied her burden

of proving a grave risk of harm to Arianna or that the Argentine

authorities will not protect her, it should enter an appropriate

order requiring Arianna’s return to Argentina. This requires

careful tailoring to ameliorate any risk of harm to Arianna that

may result from granting the petition and a consideration of

alternative arrangements that will safeguard her well-being

pending effective action by Argentine authorities. The District

Court’s June 7, 2005 order was not satisfactory in this regard.

It simply stated that “Respondent shall return the child to

Argentina immediately,” but did not state in whose custody she

should be returned, or what actions should be taken to assure

that she is safe. Indeed, based on the District Court’s order, we

have no way of knowing what would have happened to Arianna

upon her return to Argentina, which is especially troubling given

the distressing allegations at issue, many of which the District

Court Judge accepted or, at least, did not reject. Although the

Convention seeks to facilitate the prompt return of wrongfully

removed children to their country of habitual residence, it does

not condone deciding that a child is another country’s problem

and dumping her there, and nor do we.

Given the state of the factual record, we instruct the

District Court on remand to: (1) make detailed, written findings

of fact on all allegations of abuse and harm visited upon Avans

and Arianna by Adan, and on the protective efficacy of the

Argentine courts and police, evaluating the witnesses’ complete

35

testimony and all other evidence in the record;8 (2) consider the

totality of circumstances related to the alleged child abuse,

rather than simply considering and explaining away each

allegation in isolation; and (3) if the Court decides that Avans

has not satisfied her burden of proving a grave risk of harm and

the inability of Argentine authorities to protect the child,

carefully tailor an order designed to ameliorate, as much as

possible, any risk to Arianna’s well-being.9 We reiterate that

8

We do not, of course, hold that it is reversible error for

a district court to make oral findings of fact rather than written

ones. But in this particular case, we believe the complicated

factual history calls for a formal, written analysis of the full field

of evidence to allow us to discharge properly our review

function.

9

In his oral decision, the District Judge indicated that,

even if we conclude that he erred in finding no grave risk of

harm to Arianna in Argentina, he would still be inclined to

exercise his discretion to return Arianna to Argentina because,

in his view, the matter “is best determined by Argentinian

courts.” The District Court is correct that, even if Avans

succeeds in establishing a grave risk of harm, it still retains

discretion to order Arianna returned to Argentina. See Feder, 63

F.3d at 226; Hague Convention Analysis, 51 Fed. Reg. at

10,509. We have no occasion on this appeal to consider

whether, on the facts of this case, such a decision would be an

abuse of discretion. That determination is, at this point,

speculative — and, more importantly, it would require us to

examine the terms of a new order that seeks to ameliorate any

36

such analysis is only necessary if the District Court determines

that Adan has satisfied his burden of proving, by a

preponderance of the evidence, that he had and was exercising

valid custody rights over Arianna at the time she was removed.

IV.

We are well aware that the Convention requires the

“prompt return of children wrongfully removed” and that we

must act “expeditiously” in doing so. Hague Convention, arts.

1(a), 11, 19 I.L.M. at 1501-02. The desire for a swift resolution

to this matter cannot, however, outweigh our duty to see that the

law is properly applied. For the reasons noted, we vacate the

District Court’s June 7, 2005 order and remand the case to that

Court with instructions to conduct further factfinding to

determine: (1) what is the custody law of Argentina; (2) what

are the terms of the parties’ agreement regarding custody of

Arianna; (3) whether that agreement is enforceable under

Argentine law; and (4) under the agreement (or, if the agreement

is not enforceable, Argentine family law), whether Adan had

custody rights or mere rights of access, and whether he was

validly exercising those rights at the time Arianna was removed.

risk to the child upon her return, which is a matter for the

District Court to consider on remand. We therefore leave this

question, and the general issue of when a district court may

exercise such discretion notwithstanding a grave risk of harm to

the child, for a future appeal when the issue is squarely

presented.

37

If, as a result of this factfinding, the District Court concludes

that Adan has satisfied his burden of proving that he had valid

custody rights over Arianna under Argentine law at the time

Arianna was removed, and was actually exercising those rights,

the District Court must then: (1) make detailed, written findings

of fact on all allegations of abuse and harm visited upon Avans

and Arianna by Adan, and on the protective efficacy of the

Argentine courts and police, evaluating the witnesses’ complete

testimony and all other evidence in the record; (2) consider the

totality of circumstances related to the alleged child abuse,

rather than simply considering and explaining away each

allegation in isolation; and (3) if the Court decides that Avans

has not satisfied her burden of proving a grave risk of harm and

the inability of Argentine authorities to protect the child,

carefully tailor an order designed to ameliorate, as much as

possible, any risk to Arianna’s well-being. Our stay of the

District Court’s June 15, 2005 order shall remain in place until

further order.

38