West v. Dobrev
2013 U.S. App. LEXIS 22079
| 10th Cir. | 2013Background
- Mother (West) and father (Dobrev) lived in France; mother moved with children to Belgium in Aug 2010 with French court approval; French final decree (June 2012) awarded primary physical custody to mother and became final when father waived appeal.
- Father brought the children to Utah on summer visit July 2012 and did not return them after the scheduled return date, prompting mother to file a Hague/ICARA return petition in federal court.
- Father filed a competing Utah custody action and asserted an Article 13(b) defense in federal court, alleging the children had been abused; he submitted a psychologist’s letter but the psychologist refused to testify.
- District court held a preliminary hearing, questioned the sufficiency of father’s proof and need for an evidentiary hearing, then granted the mother’s petition summarily and ordered immediate return to Belgium.
- District court awarded mother fees, costs, and expenses under ICARA §11607(b)(3); father appealed claiming due process violation from lack of an evidentiary hearing.
Issues
| Issue | West's Argument | Dobrev's Argument | Held |
|---|---|---|---|
| Whether children were wrongfully retained / habitual residence | Children habitually resided in Belgium; retention after scheduled return was wrongful | Denied retention was wrongful, but admitted Belgium habitual residence while asserting Article 13(b) defense | Habitual residence and prima facie case established; father’s pleadings admitted key elements, so prima facie case stands |
| Whether due process required an evidentiary hearing | No hearing required where allegations do not meet Convention exceptions; district court may resolve on papers | Denied meaningful opportunity to be heard; requested evidentiary hearing to develop abuse claim | No absolute right to an evidentiary hearing under Hague/ICARA or due process; district court acted within discretion and afforded meaningful opportunity to be heard |
| Sufficiency of Article 13(b) “grave risk” showing | Father argued alleged abuse (psychologist’s letter, child statements) showed grave risk preventing return | Letter from psychologist (no live testimony) and father’s proffers insufficient by clear and convincing standard | Requiring clear and convincing proof, the court held the psychologist’s unattested letter and proffers did not demonstrate a grave risk; summary return order affirmed |
| Award of fees and costs under ICARA §11607(b)(3) | Fees and costs appropriate after return; statute generally requires award unless clearly inappropriate | Contended award not justified | Court has broad discretion; given facts and father’s conduct award was not "clearly inappropriate" and was affirmed |
Key Cases Cited
- Shealy v. Shealy, 295 F.3d 1117 (10th Cir. 2002) (elements of prima facie Hague/ICARA return claim)
- Navani v. Shahani, 496 F.3d 1121 (10th Cir. 2007) (Convention aims to prevent forum shopping and relitigation of custody)
- Chafin v. Chafin, 133 S. Ct. 1017 (2013) (policy favoring prompt return to country of habitual residence)
- March v. Levine, 249 F.3d 462 (6th Cir. 2001) (no absolute right to discovery or evidentiary hearing under Hague/ICARA)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (Article 13(b) requires substantial proof of grave risk)
- Whallon v. Lynn, 356 F.3d 138 (1st Cir. 2004) (ICARA’s fee-shifting normally requires award unless clearly inappropriate)