OPINION
This appeal involves the International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601-11610 (2000), which is a codification of the Hague Convention on the Civil Aspects of International Child Abduction, opened for signature, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, 51 Fed.Reg. 10,493, 10,498 (app.B) (March 26, 1986) (hereinafter “Hague Convention”). The Hague Convention was adopted by the signatory nations “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, pmbl.
Under the ICARA, a petitioner must establish by a preponderance of the evidence that his , children were wrongfully removed or retained in breach of his custody rights under the laws of the Contracting State in which the children habitually
Respondents Lawrence E. Levine and Carolyn R. Levine (“the Levines”), the grandparents of two minors, Samson Leo March and Tzipora Josette March, appeal the order entered by the district court in this action under the ICARA and the Hague Convention which directed the Le-vines to immediately return the two minor children to their father in Mexico. Petitioner Perry A. March (“March”), the biological father of Samson and Tzipora, cross-appeals portions of the order decided adversely to him. We AFFIRM the district court’s order, adopting its well-reasoned opinion. See March v. Levine,
I.
This case involves an American father who moved to Mexico with his two biological children, of whom he had custody. It also involves two American maternal grandparents who obtained court-ordered visitation rights, then removed the children from Mexico and returned with them to the United States, and then retained them after the end of the court-ordered visitation. The father seeks return of his children under the IGARA and the Hague Convention.
The mother of the children disappeared in 1996 and her parents, the Levines, believe she was murdered by her husband, March. This is the basis for the Levines’ fervent belief that March should not have custody of their grandchildren. However, there have also been allegations that the maternal grandfather, Mr. Levine, killed his own daughter.
Additional facts are set forth in the district court’s opinion. March,
On or about June 15, 2000, the Levines arrived in Jalisco, Mexico, to visit the
The Illinois court-ordered visitation period expired July 30, 2000. Since that time, the Levines have refused to return the children to their father in Jalisco, Mexico, where the children had resided for more than one year prior to their removal. Instead, the Levines have sought termination of March’s parental rights and custody of their grandchildren by instituting proceedings in Tennessee.
March filed his Petition for Return of Children under the ICARA on August 3, 2000, asserting that they were wrongfully removed from their habitual residence in Mexico in violation of his custody rights and the Hague Convention. In addition to the return of his children, March requested that the district court expedite matters; enter a provisional order directing the Le-vines to return his children pending a hearing, or alternatively, that the court grant him immediate rights of access, including telephone contact with the children and a schedule for the children to have time with him until a hearing on the merits; that trial be set in advance of the children’s school year; and other relief.
The Levines filed a sworn Answer on August 22, 2000. Among numerous defenses raised, the Levines asserted that March should be disentitled from bringing his petition before the court under the fugitive disentitlement doctrine. They also asserted that Mexico is not the habitual residence of the children, as required for the return of children under articles 3 and 12 of the Hague Convention. They further asserted exceptions to return of children under articles 13(b) and 20 of the treaty, i.e., that return of the children to March would present a grave risk of psychological and physical harm as well as place them in an intolerable situation, and that return of the children would violate human rights and fundamental freedoms. In addition, they asserted that full faith and credit were due to various state and Mexican court decisions under a variety of legal theories, including “abstention.”
On August 30, 2000, March moved for summary judgment or partial summary judgment on the question whether the Le-vines wrongfully removed or wrongfully retained the children under the ICARA. The next day, the Levines moved to dismiss the petition based on March’s inability to establish that Mexico was the children’s habitual residence, and the fugitive disentitlement doctrine.
Both parties appealed. A panel of this Court ordered a temporary stay of the district court’s order until the Levines filed a substantive motion seeking a stay. After the Levines filed such a motion, this Court granted a stay of the district court’s order pending resolution of the instant appeal and cross-appeal.
Regarding the merits, on appeal before this Court the Levines argue that the district court erred when it declined to disen-title March from pursuing his petition under the fugitive disentitlement doctrine based on various state court orders of contempt. They also contend that the district court erred when it refused to allow discovery or a hearing on the merits prior to ruling on the petition, or otherwise permit them to develop their affirmative defenses. They further argue that the district court erred when it granted summary judgment in favor of March. Finally, in their combined brief replying to March’s response to their appeal and responding to March’s cross-appeal, the Levines assert that the Younger abstention doctrine is applicable to this case.
On cross-appeal, March argues that the district court erred when it failed to address his argument that the Levines have no standing to assert any defenses. He also argues that the district court erred when it considered certain audiotapes as admissible evidence for purposes of ruling on his petition.
II.
In addressing the questions raised in this appeal, we must keep in mind the following general principals inherent in the Hague Convention and the ICARA:
First, a court in the abducted-to nation has jurisdiction to decide the merits of an abduction claim, but not the merits of the underlying custody dispute. Second, the Hague Convention is generally intended to restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.
Friedrich v. Friedrich,
A.
As a preliminary matter, we need not address the Levines’ abstention argument. Having invoked the jurisdiction of
B.
The Levines also argue as a threshold matter that the district court erred in declining to disentitle March from bringing his petition based on his fugitive status from various state court contempt orders.
Having carefully reviewed the parties’ briefs in light of the applicable law, we hold that the district court did not abuse its discretion when it declined to disentitle March for the reasons set forth in its opinion. See March,
In arguing that March should have been disentitled from accessing the district court to seek return of his children, the Levines point to various state court contempt orders entered in both Illinois and Tennessee. The Illinois contempt orders arose during grandparent visitation proceedings, and stem primarily from March’s failure to appear with the children.
At the outset, we note that, however labeled, none of these contempt orders were “criminal” contempts because the fines at issue were avoidable by performance of the required acts and no definite sentences were imposed. See Hicks ex rel. Feiock v. Feiock,
To the extent that civil contempts have formed the basis for disentitlement, such cases are inapposite to the facts here because they involved appellate-level application of the doctrine to an appellant who was a fugitive from contempt orders entered by the district court in the case sub judice. United States v. Barnette,
It is worth re-emphasizing the Degen Court’s guidance to courts in deciding whether to disentitle a claimant: there must be “restraint in resorting to inherent power” and its use must “be a reasonable response to the problems and needs that provoke it.” Degen,
[Ajpplying the fugitive disentitlement doctrine would impose too severe a sanction in a case involving parental rights. Parenthood is one of the greatest joys and privileges of life, and, under the Constitution, parents have a fundamental interest in their relationships with their children. To bar a parent who has lost a child from even arguing that the child was wrongfully removed to another country is too harsh.
Walsh v. Walsh,
Here, even if the contempts were criminal in nature and March was clearly a fugitive from them, had the district court disentitled March from even arguing his ICARA petition because he did not return a beaded evening bag and a baby blanket it would have been an unreasonable response and an abuse of discretion. An ICARA petitioner should not be disentitled on such patently insignificant grounds. The district court therefore properly rejected the Levines’ vindictive attempt to deprive March of his day in court. Maliti-is hominum est obviandum.
C.
The Levines also argue that the district court erred in granting summary judgment in favor of March. Again, having reviewed the parties’ briefs in light of the applicable law, we also hold that the district court did not err in granting summary judgment in favor of March for the reasons set forth in its opinion. March,
When a motion for summary judgment is made and supported by competent admissible evidence, the nonmovant may not rest on his pleadings, but must come forward with affidavits or other admissible evidence setting forth “specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250,
Under the treaty and the ICARA, once the petitioner establishes wrongful removal or retention, as here, the respondent must establish by clear and convincing evidence the narrow exceptions under articles 13b and 20. Hague Convention, arts. 13b, 20; 42 U.S.C. § 11603(e)(2)(A); Friedrich, 18 F.3d at 1067. In dicta, the Friedrich court stated:
[W]e believe that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute-e.#., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.
Id. at 1069.
The Levines principally argued, pursuant to article 13(b) of the treaty, that the children should not be returned to March because to return them would present a grave risk of psychological and physical harm to Samson and Tzipora and place them in an intolerable situation. The Le-vines rely in large part on a default judgment they obtained in a wrongful death action against March after the disappearance of their daughter.
We find the circumstances surrounding the entry of this default, like the circum
Even assuming that the default judgment would be upheld on appeal, that it should be given preclusive effect in these proceedings, and that it is sufficient to show that there is some risk of harm to the children in being returned to March, this default judgment is not clear and convincing evidence that there is a grave risk of harm to the children in being returned to their father. Our review of the record, like that of the district court, shows no allegations by the Levines over the many years that they pursued visitation with the children that March has harmed them or would harm them. Nor have the Levines made any showing of serious abuse much less neglect of the children by March. At best, the default judgment might raise a tenuous inference that he might hurt his children. Even that inference, however, does not rise to the level of an imminent risk of grave harm. Further, the children are not being returned to any other type of circumstances that would place them in imminent harm, such as to a war zone,-or to an area of rampant disease or famine. The Levines also have not shown the Mexican authorities incapable of or unwilling to protect the children. Indeed, the Levines were successful in obtaining the assistance of the Mexican authorities to enforce a visitation order. This demonstrates that the foreign authorities will hear and consider the Levines’ arguments should they seek relief under the visitation and custody laws of Mexico.
The Hague Convention and the ICARA were specifically designed to discourage those who would remove or retain children in the hopes of seeking a “home court advantage” by ensuring that children wrongfully removed or retained would be returned to their place of habitual residence so that custody determinations are made there. By invoking the treaty’s exceptions in this case, what the Levines truly seek is a determination regarding the adequacy of March as a parent in light of his wife’s disappearance. This falls squarely within the “forbidden territory” of deciding the merits of the parties’ custody dispute. Friedrich, 78 F.3d at 1065. The district court properly recognized the Levines’ argument for what it is, and declined to enter this forbidden territory.
The Levines argue that the district court erred when it granted summary judgment in favor of March without allowing discovery or an evidentiary hearing. They also complain that they were not allowed to develop their treaty defenses under articles 13 and 20 of the Hague Convention prior to the court’s grant ,of summary judgment in favor of March.
We adopt the district court’s opinion on this point also. We take a few moments to elaborate, however, since this is apparently a question of first impression.
We review for an abuse of discretion a claim that summary judgment was prematurely entered because additional discovery was needed. Vance ex rel. Hammons v. United States,
“The general rule is that summary judgment is improper if the non-movant is not afforded a sufficient opportunity for discovery.” Vance,
At the same time, however, the plain language of Rule 56 “does not specifically require or even expressly authorize receipt of oral evidence and other types of evidence in a hearing setting.” 11 James Wm. Moore et al., Moore’s Federal Practice § 56.15[1][a], at 56-200 to 56-201 (3d ed.2000). Moreover, “oral testimony is not favored in summary judgment proceedings due to the well founded reluctance to turn a summary judgment hearing into a trial.” Id. at 56-202. Further, a court has discretion to hear evidence on motions by oral testimony or on affidavits. Fed.R.Civ.P. 43(e). Here, the court properly elected the latter.
[T]his type of case is appropriate for resolution by summary judgment. Indeed, the language of the Convention supports resolution by such means. Article 11 provides that a court, when faced with a petition under the Convention, should “act expeditiously in proceedings for the return of children.” Courts are to place these cases on a “fast track” in order to expedite these proceedings and carry out the purposes of the Convention.
The language of the Convention also authorizes courts to “take notice directly of the law of, and of judicial and administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.”
There is no requirement under the Hague Convention or under the ICARA that discovery be allowed or that an evidentiary hearing be conducted. Thus, under the guidance of the Convention and the statutory scheme, the court is given the authority to resolve these cases without resorting to a full trial on the merits or a plenary evidentiary hearing.
March,
We agree. The petition for return of children at issue here is not a run-of-the-mill case that falls within the general rule so that it may be said that the district court abused its discretion. Rather, this case involves a petition under a unique treaty and its implementing legislation, neither of which expressly requires a hearing or discovery. In fact, the treaty requires not only expeditious action by courts under article 11, as the district court properly noted, but use of “the most expeditious procedures available.” Hague Convention, art. 2. Indeed, the drafters of the treaty stressed the emergency nature of these cases: “Its nature is one of emergency because it seeks a speedy and immediate solution to the cases involved.” Elisa Pérez Vera, RepoH of the Special Commission, in 3 Actes et documents de la Quatorzieme Session 172, 179 ¶ 25 (Permanent Bureau of the Hague Conference on Private International Law ed. and trans. 1980) (official English translation).
In addition to the requirement of expeditious action, the treaty has a number of provisions to help ensure that return proceedings are handled in such a manner and that return of children to their country of habitual residence is likely. For example, the treaty sets forth generous rules regarding authentication of documents and judicial notice. Hague Convention, art. 14. The treaty further provides rights to petitioners when a decision is not rendered within a mere six weeks of filing their petition. Hague Convention, art. 11. Importantly, the treaty also provides that a court may order return of a child at any time, notwithstanding proof of treaty defenses. Hague Convention, art. 18 (“The
Likewise, the ICARA repeatedly uses the word “prompt” to describe the nature of proceedings for the return of a child wrongfully removed or retained. 42 U.S.C. § 11601(a)(4). Like the treaty itself, the implementing legislation also provides a generous authentication rule. 42 U.S.C. § 11605 (“[N]o authentication of such application, petition, document, or information shall be required in order for the application, petition, document, or information to be admissible in court.”). Such a provision serves to expedite rulings on petitions for return of children wrongfully removed and retained. Expeditious rulings are critical to ensure that the purpose of the treaty- — prompt return of wrongfully removed or retained children— is fulfilled. Hague Convention, art. 1.
We further note that courts in other Contracting States to the treaty have also upheld summary proceedings on review. For example, an Australian court has held that the Convention’s primary purpose “is to provide a summary procedure for the resolution of the proceedings and, where appropriate, a speedy return [of children] to the country of their habitual residence.” In the Marriage of Gazi, (1992) 16 Fam. L.R. 180, ¶ 9, available at http://scale-text.law.gov.au/htmllfamdecl0/92/0l FM000720.htm (last visited March 22, 2001). The Australian court therefore ruled that the trial court “properly adopted a summary form of procedure.” Id. (opining that allowing cross-examination of deponents of affidavits may be appropriate in rare cases; noting that it was apparent that the trial court had considered all relevant material before it, including affidavits).
Finally, we note that although the district court ruled that it would decide the motions before it without discovery, it nonetheless entered a voluminous amount of evidence into the record from both parties. Indeed, over 1,300 pages were filed with the district court and made part of the record on appeal. Moreover, review of the district court’s opinion reveals that the court carefully considered the evidence both parties offered and independently sought information on its own volition. In sum, given the unique nature of this treaty, we hold that the district court did not abuse its discretion when it granted summary judgment in favor of March prior to discovery or an evidentiary hearing.
E.
Given our affirmance of the district court’s rulings, we need not reach the issues raised in March’s cross-appeal.
III.
The district court’s order that the children be immediately returned to their father in Mexico is AFFIRMED, and our prior order issuing a stay of the district court’s order pending resolution of these appeals is VACATED. Because Samson and Tzipora have been separated from their father for almost one year now, we further order that our mandate issue forthwith pursuant to Fed. R.App. P. 41(a), and that the district court take appropriate action to ensure that the children are reunited with their father with all due speed.
Notes
.This exception provides that a court is not bound to return a child if the person opposing return establishes that "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.” Hague Convention, art. 13(b).
. This provision states that return of a child "may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” Hague Convention, art. 20.
. This is acknowledged by the Levines. Final Br. on Behalf of Appellants at 28.
. March moved with his children from Tennessee to Illinois in 1996 after his wife's disappearance. Shortly after he relocated to Illinois, the Levines sought grandparent visitation there. In 1999, March relocated to Mexico.
. The Hague Convention requires a court to consider social background information of the children provided by the Central Authority of the children's country of habitual residence. Hague Convention, art. 13. Here, the district court requested a variety of such information. It also conducted separate in camera interviews of Samson and Tzipora with the assistance of a licensed clinical psychologist.
. Most of the Illinois contempt orders were entered after March moved to Mexico. An earlier contempt order was vacated on appeal. See In re Visitation of March, No. 96-D-15334, slip op. at 20-21, 26-27 (Ill.App.Ct. 1st Dis. June 30, 1998) (holding that March’s due process rights were violated when the court conducted a hearing without notice to March; that the court improperly granted the grandparents equal, if not superior, visitation rights over those of the natural father; that an injunction preventing March from removing the children from Illinois was improperly entered without notice to him; and vacating the contempt for violation of the injunction).
. In his sworn declaration pursuant to 28 U.S.C. § 1746, March avers that he is unable to purge himself of the contempt despite his sincere desire to do so because he has looked for the items and has been unable to find them. He also avers that he personally testified to this and submitted sworn affidavits to this effect before the Tennessee court who imposed the contempt orders.
. At the time, March was living and working in Mexico trying to support his family while defending against the wrongful death claim. March avers that his finances and the necessity of caring for his children did not allow him to travel to Nashville, Tennessee, for the deposition.
. This Court has recently noted that the plain language of Rule 56(0 requires an affidavit, and that other Circuits have strictly construed the Rule. Cacevic v. City of Hazel Park,
. According to the Legal Analysis of the Hague Convention prepared by the Department of State, the Perez Vera Report "is recognized ... as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention.” Legal Analysis of the Hague Convention on the Civil Aspects of International Child Abduction, 51 Fed.Reg. 10,494, 10,503 (March 26, 1986); see also Whallon v. Lynn,