Category Archives: 10th Cir.

10th Circuit Affirms Denial of Evidentiary Hearing Demanded by Hague Respondent

LIVIA S. WEST, Petitioner-Appellee, v. STANISLAV D. DOBREV, Respondent-Appellant. No. 12-4159 No. 12-4205 UNITED STATES COURT OF APPEALS TENTH CIRCUIT FILED: October 30, 2013

” ICARA provides “[t]he court in which an action is brought under [§ 11603(b)] shall decide the case in accordance with the Convention.”6 42 U.S.C. § 11603(d). The Convention does not provide a means by which to determine “the merits of . . . child custody claims.” Id. § 11601(b)(4). Rather, the Convention seeks “to prevent parents from abducting children in order to avoid the jurisdiction of courts with whose [custody] rulings they do not or believe they will not agree.” Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir. 2002) (internal parenthesis omitted). The principal aims of the Convention are to “prevent an international version of forum-shopping,” “defeat attempts to re-litigate custody matters,” Navani v. Shahani, 496 F.3d 1121, 1128-29 (10th Cir. 2007), and “facilitate custody adjudications, promptly and exclusively” in the child’s country of residence, Chafin v. Chafin, 133 S. Ct. 1017, 1028 (2013) (Ginsburg, J., concurring) (emphasis added).

Consistent with these aims, Article 11 of the Convention provides “[t]he judicial . . . authorities of Contracting States shall act expeditiously in proceedings for the return of children.”1988 WL 411501, at *4 (emphasis added). Article 18 adds the provisions of the Convention “do not limit the power of a judicial . . . authority to order the return of the child at any time. Id. at *5 (emphasis added). Unfortunately for Respondent, this surely means a district court has a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA. Specifically, neither the Convention nor ICARA, nor any other law of which we are aware including the Due Process Clause of the Fifth Amendment, requires “that discovery be allowed or that an evidentiary hearing be conducted” as a matter of right in cases arising under the Convention. March v. Levine, 249 F.3d 462, 474 (6th Cir. 2001). Where circumstances warrant, both the Convention and ICARA provide the district court with “the authority to resolve these cases without resorting to a . . . plenary evidentiary hearing.” Id.”