725 F.3d 868
8th Cir.2013Background
- Ricardo Acosta (Peruvian) and Anne Acosta (US citizen) married in Minnesota; lived in the United States, then moved to Lima, Peru in 2006.
- Children: M.A.A. (born 2003) and E.T.A. (born 2007); M.A.A. exhibited significant behavior problems in Peru, including suicidal ideation.
- During 2010–2011, marital strain led Anne and the children to travel to Minnesota; Ricardo remained in Peru and heard later that they would not return to Peru.
- February 2011 apartment incident in Minnesota: Ricardo allegedly assaulted Anne and others with a knife, prompting police involvement and injuries to Anne and a companion.
- Ricardo made threats by phone to harm Anne’s family and later to kill the children; he was arrested in Minnesota and pleaded guilty to terroristic threats.
- Ricardo filed a Hague/ICARA petition in 2012 seeking return of the children; district court found wrongful retention but held that returning would expose the children to grave risk of harm and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| grave risk of harm under Article 13b | Ricardo argues no grave risk exists. | Anne supports the district court’s grave risk finding based on evidence of Ricardo’s behavior. | Grave risk exists; return denied. |
| Admissibility of Dr. Edleson testimony | Testimony is uncorroborated and generic and relies on disputed facts. | Testimony rests on adequate factual basis, not mere speculation; cross-examination available. | Testimony properly admitted; no abuse of discretion. |
| Undertakings to mitigate grave risk | Undertakings could mitigate risk and allow return. | Undertakings are insufficient in cases of abuse to guarantee protection. | District court did not abuse discretion; undertakings declined. |
| Affirmative defenses/dismissal against Susan and Stephen Campbell | Claims against Campbell may proceed under Hague/ICARA. | Court properly dismissed those claims. | Affirmative defense upheld; dismissal affirmed. |
| Standard of review for grave risk determination | Standard supports de novo review of grave risk evidence. | Deference to district court’s factual findings remains appropriate. | Grave risk determination reviewed de novo; supported by record. |
Key Cases Cited
- Chafin v. Chafin, 133 S. Ct. 1017 (S. Ct. 2013) ( Hague Convention largely aims to restore status quo)
- Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995) (Article 13b grave risk standard narrowly construed)
- Vasquez v. Colores, 648 F.3d 648 (8th Cir. 2011) (exclusion of testimony for irrelevance analyzed; credibility considerations)
- Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010) (purpose of Hague Convention; custody merits not resolved)
- Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005) (undertakings in abuse cases viewed skeptically)
- Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007) (protective undertakings in cases involving abuse)