Nasiruddin Khan v. Tarfa Fatima
680 F.3d 781
| 7th Cir. | 2012Background
- Hague Convention implementation via I.C.A.R.A. and petition under 42 U.S.C. § 11603 by father for return of child ZFK from the United States to Canada.
- Mother abducted ZFK during a family trip to India and brought her to Illinois; father seeks return under Article 12/13(b) framework.
- District court granted return to Canada with passport control; court later stayed and then ordered return pending appeal, with procedural conditions.
- The district court conducted a one-day evidentiary hearing on the grave risk defense and issued no detailed Rule 52 findings of fact.
- Mother alleged extensive domestic abuse by father in child’s presence; father contested abuse and argued grave risk defense not proven by clear and convincing evidence.
- The appellate majority vacated and remanded for a proper Rule 52 analysis and expedited remand proceedings; cautioned against expanding grave risk to merits of custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the district court’s Rule 52 finding sufficiently specific? | Van De Sande requires explicit, separate findings. | Oral findings plus the record suffice given urgency. | Yes; the district court’s oral/one-day findings suffice to show reasoning under Rule 52. |
| Did the district court err by not delaying for psychological evaluation evidence? | Need child psychologist input to determine grave risk. | Delay would convert to merits-based custody litigation. | No; delay for psych evaluation would unduly extend the process and broaden the merits inquiry. |
| Did the district court improperly rely on the habitual-residence laws of the United States/Illinois to assess grave risk? | Evidence of abuse should be considered; Canada might protect, but not determinative. | Hague remedies emphasize prompt return; focus is grave risk to child, not merits of custody. | Correct focus on grave risk; the court did not abuse in evaluating risk based on child’s welfare. |
| Was the “grave risk” defense proven by clear and convincing evidence? | Mother’s testimony shows father’s ungovernable temper and abuse. | Evidence not clear and convincing; credibility issues exist. | No; burden not met; grave risk defense rejected. |
| Did the district court err in proceeding as a venue-focused Hague matter rather than addressing merits? | The district court should have avoided broader custody questions. | Prompt return is the purpose; venue focus legitimate. | No reversible error; proceedings must be expedited and limited to return remedy. |
Key Cases Cited
- Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir.2005) (grave risk standard and venue considerations in Hague cases; credibility concerns acknowledged)
- Baxter v. Baxter, 423 F.3d 363 (3d Cir.2005) (Hague as venue statute; deter forum-shopping; narrow exceptions)
- Norinder v. Fuentes, 657 F.3d 526 (7th Cir.2011) (expedited Hague proceedings and limited discovery; emphasis on prompt return)
- Abbott v. Abbott, 130 S. Ct. 1983 (S. Ct.2010) (strict scope of grave risk; prompt return; underlying custody merits not addressed)