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In Asvesta v Petroutsas, 580 F.3d 1000 (9th
Cir 2009) a Greek court denied the first Hague petition, filed by the
father after the mother traveled with the child from the United States
to Greece and kept the child there, determining that it was not bound to
return the child to the United States. After the father took the child
from Greece and returned to the United States, the mother filed a Hague
petition in the district court in this case, seeking return of the child
to Greece. The district court granted the mother's petition on the basis
of comity, or deference, to the Greek court's denial of Petroutsas'
Hague petition. The Ninth Circuit held that the district court did not
properly extend comity to the Greek court's Hague order, reversed the
district court's order, and remanded for further proceedings. George
Petroutsas, a Greek and American dual citizen, and Despina Asvesta, a
Greek citizen, married in California on March 10, 2002. In January 2003,
the couple settled in Capitola, California. Two years later, Asvesta had
a son, the couple's only child. The child, like his father, was a Greek
and American dual citizen. By the end of 2005, the couple's marriage had
begun to deteriorate. Asvesta wanted to return to Greece; Petroutsas
wanted to stay in the United States. A lengthy e-mail from Petroutsas to
Asvesta, dated November 2, 2005, concluded: If you don't agree with the
above, to go to Greece slowly, calmer and smarter than giving up
everything and leaving, I have to ask you for a divorce, and we won't be
neither the first or last. Go to Greece with the child and we will see
how I will come to Greece to visit him. I know you neither want or ask
for this, but how you have brought these issues to me, this is how you
have caused me to react. On November 8, 2005, with the written consent
of Petroutsas, Asvesta and the child left for Greece to visit family.
Petroutsas' consent stated, "I hereby consent to Despina Asvesta
Petroutsas to travel with our son ... between the following dates[:]
November 8, 2005-December 8, 2005." On November 29, before his consent
expired, Petroutsas called Asvesta in Greece to advise her that he had
reported her to authorities in the United States for abducting the
child. The following day, while Asvesta and the child were in Greece,
Petroutsas filed a petition for dissolution of marriage in the Superior
Court of California. Petroutsas also sought custody of the child. After
a hearing at which Asvesta's counsel was present, the California court
granted Petroutsas temporary custody of the child. On December 5, 2005,
Avesta filed for divorce against Petrousas in the Athens Multimember
Court of First Instance and to file for temporary custody of the child
with the Athens One-Member Court of First Instance. On December 9, 2005,
the Athens One-Member Court issued an injunction granting Asvesta
temporary custody of the child and scheduling a hearing on the custody
petition for January 9, 2006. Back in California, on January 25, 2006,
after proceedings in which Asvesta was again represented by counsel, the
California court found that the child's habitual residence was Santa
Cruz County, California, and concluded that it had jurisdiction to hear
the case. The court entered a permanent modifiable order granting
Petroutsas sole legal and physical custody of the child and ordering
Asvesta to return the child to Petroutsas "immediately." (Petroutsas did
not seek relief from the California court pursuant to the Hague
Convention or ICARA." On February 20, 2006, with the California custody
order in place, Petroutsas filed a Hague petition for the return of the
child to the United States with the United States Central Authority. The
petition alleged that Asvesta had wrongfully retained the child in
Greece in violation of Petroutsas' custody rights. The United States
Central Authority transferred Petroutsas' petition to Greece's Central
Authority. It was eventually filed with the Piraeus One-Member Court of
First Instance (the "Greek Hague court").
On March 23, 2006, the Greek Hague court held a
hearing on Petroutsas' petition. Both parties voluntarily appeared.
According to Asvesta, the parties had notice of the hearing, were
represented by counsel, and were provided with the opportunity to be
heard and participate fully through counsel. Petroutsas alleged that,
although a non-lawyer representative of the Greek Ministry of Justice
appeared to pursue Petroutsas' petition on his behalf, neither
Petroutsas nor his personal lawyer were permitted to speak or testify.
Petroutsas argued that the appointed representative was not familiar
with the facts of the case and did not adequately represent his
interests at the hearing. The following day, on March 24, 2006, the
Greek court issued an order dismissing Petroutsas' petition for the
return of the child, concluding that it was "not bound to order the
minor's return to the USA." The Greek court concluded that the child had
not been "illegal[ly]" removed to and retained in Greece by his mother
because (1) "Petroutsas ... consented ... to his move and stay in
Greece, giving for this purpose to [Asvesta] a related written
permission and suggesting to her to stay in Greece together with the
minor;" (2) "Petroutsas was not virtually exercising the right of
custody of the person of the minor at the time of his move, since ... he
was indifferent to his family obligations, he was not engaged in the
minor's care and was indifferent to his pyschosomatic [sic]
development;" and (3) there was a severe danger that the minor's return
to the USA to [sic] expose him to mental tribulation, since he will be
deprived of his mother's presence, affection, love and care at the
delicate age of 12 months, he will be deprived of the security and
stability that he feels near his mother and his mental bond with her
will be broken. On April 23, 2007, the Athens One-Member Court finally
held a hearing. The court awarded temporary custody to Asvesta and
granted Petroutsas supervised visitation in Greece. A month later, the
California court modified its prior order, granted temporary sole
custody of the child to Petroutsas, and ordered the parties to mediate
their custody and visitation dispute in Greece. In July 2007, during
supervised visitation with his son, Petroutsas took the child, fled from
Greece to Canada and then returned to California where, the child
remained. Petroutsas asserted that he took the child from Greece under
the authority of the California court order that granted him sole legal
and physical custody of the child. Asvesta, viewed Petroutsas' action as
an abduction, and filed a petition for the return of the child to Greece
under the Hague Convention in the U.S. District Court on October 31,
2007, asserting that Petroutsas had abducted the child from Greece, the
child's habitual residence.
Following an evidentiary hearing the district
court orally granted Asvesta's petition. The court determined that the
initial question it faced was "simply, whether it should or shouldn't
recognize and accord comity to the Hague order entered by the courts of
Greece." The court was "compell[ed]" by Petroutsas' failure to comply
with both the Greek Hague Convention order and the California court's
order to mediate custody and visitation issues in Greece, describing the
circumstances as "simply a situation where the two countries or the two
courts that have exercised jurisdiction over this child both made
orders, both which have been violated by Mr. Petroutsas." The court
concluded that "under both circumstances [it had] no legal choice other
than to grant the petition."
The Ninth Circuit held that it need not decide
here whether to review the district court's determination de novo or for
an abuse of discretion because under either standard of review, it
concluded that the district court should not have extended comity to the
Greek court's Hague decision. The Ninth Circuit agreed with Petroutsas
that the Greek court's analysis of the merits of Petroutsas' Hague
petition misapplied the provisions of the Convention, relied on
unreasonable factual findings, and contradicted the principles and
objectives of the Hague Convention. The Court therefore held that the
district court improperly extended comity to the Greek court's Hague
decision, reversed the judgment, and remanded with directions to the
district court to conduct its own Hague convention analysis.
The Ninth Circuit noted that "The extent to
which the United States, or any state, honors the judicial decrees of
foreign nations is a matter of choice, governed by 'the comity of
nations.' " Wilson v. Marchington, 127 F.3d 805, 808 (9th Cir.1997)
(quoting Hilton v. Guyot, 159 U.S. 113, 163, 16 S.Ct. 139, 40 L.Ed. 95
(1895)). As the court recognized in Marchington, "Hilton [v. Guyot ]
provides the guiding principles of comity[:]" [W]here there has been
opportunity for a full and fair trial abroad before a court of competent
jurisdiction, conducting the trial upon regular proceedings, after due
citation or voluntary appearance of the defendant, and under a system of
jurisprudence likely to secure an impartial administration of justice
between the citizens of its own country and those of other countries,
and there is nothing to show either prejudice in the court, or in the
system of laws under which it was sitting, or fraud in procuring the
judgment, or any other special reason why the comity of this nation
should not allow it full effect, the merits of the case should not, in
an action brought in this country upon the judgment, be tried afresh, as
on a new trial or an appeal, upon the mere assertion of the party that
the judgment was erroneous in law or in fact. It pointed out that the
Second Circuit has noted that, where comity is at issue, a court
properly begins its analysis "with an inclination to accord deference
to" a foreign court's adjudication of a related Hague petition. Diorinou,
237 F.3d at 145. It agreed holding that such an approach is consistent
with the Convention drafters' primary concern "with securing
international cooperation regarding the return of children wrongfully
taken by a parent from one country to another." Diorinou's approach was
also consistent with the relatively narrow grounds, set forth in Hilton,
upon which courts may rely in withholding comity. The two federal courts
of appeal that have considered whether to extend comity to foreign Hague
Convention judgments, the Second Circuit in Diorinou and the Third
Circuit in Carrascosa v. McGuire, 520 F.3d 249 (3d Cir.2008), both
looked closely at the merits of the foreign court's decision in
determining whether comity could properly be extended to its judgment.
In Diorinou,the Second Circuit affirmed the district court's extension
of comity, but only after emphasizing its misgivings with certain
aspects of the Greek court's decision. The Third Circuit in Carrascosa,
declined to extend comity to a Spanish court's Hague order. 520 F.3d at
263. In so doing, the court, like the Second Circuit in Diorinou,
examined the merits of the Spanish court's analysis under the
Convention. The Third Circuit, refusing to extend comity to the Spanish
court, concluded that the Spanish court's decision "departed from the
fundamental premise of the Hague Convention and violated principles of
international comity by not applying New Jersey law." The Ontario Court
of Appeal in Pitts v. De Silva, 2008 ON.C. LEXIS 34 (Jan. 10, 2008),
adopted an approach similar to that of Diorinou and Carrascosa in
determining whether it should accord deference to the Tenth Circuit's
affirmance of a district court's Hague Convention judgment that refused
under Article 13 to return a child to Canada. The Court followed the
path charted by Diorinou, Carrascosa, and Pitts and concluded that it
may properly decline to extend comity to the Greek court's determination
if it clearly misinterprets the Hague Convention, contravenes the
Convention's fundamental premises or objectives, or fails to meet a
minimum standard of reasonableness.
The Greek court's decision did not mention, let
alone address, which country was the child's habitual residence. It
strayed from the objective inquiries prescribed by the Convention and
focused on matters largely irrelevant to its ultimate decision. Much, if
not most, of the court's factual findings center on the breakdown of the
couple's relationship. The Greek court's analysis was largely untethered
from the relatively structured inquiry required by the Hague Convention.
The Greek court's finding that Petroutsas failed to exercise his
custodial rights at the time of removal was the only element of the
Article 3 inquiry that the court addressed in its decision. That
determination, however, could have served either as a basis for finding
that Asvesta's removal of the child was not wrongful under Article 3(b)
or as an exception to return under Article 13(a). The Greek court's
Article 3 ruling was marked by serious defects, principally, its failure
to make the underlying determination of the child's habitual residence,
and also its legally erroneous and factually unsupported finding that
Petroutsas failed to exercise his custody rights. The Greek court's
Article 3 determination was marked by numerous flaws, most notably, the
court's complete failure to address a key provision of the Convention-a
failure that tainted its wrongful retention analysis as a whole. The
Greek court's wrongful retention determination resulted from a clear
misapplication of the provisions of the Hague Convention. The Greek
court also denied Petroutsas' petition on the basis of its finding that
Petroutsas consented to the child's removal and stay in Greece. The
Ninth Circuit concluded that the Greek court's factual determination was
completely unsupported, and was contradicted by the evidence. Petroutsas'
later written consent for Asvesta to travel with the child directly
contradicts the Greek court's finding of that Petroutsas consented to
the child's indefinite stay in Greece. In that writing, Petroutsas
specified the time during which he consented to Asvesta traveling with
their son: between November 8, 2005, and December 8, 2005. Petroutsas
filed his Hague petition in Greece for the return of the child well
after this time period elapsed. The lack of evidentiary support for the
Greek court's finding of consent rendered its Article 13(a)
determination unreasonable. The Greek court found that the child faced a
severe danger that [his] return to the USA to [sic] expose him to mental
tribulation, since he will be deprived of his mother's presence,
affection, love and care at the delicate age of 12 months, he will be
deprived of the security and stability that he feels near his mother and
his mental bond with her will be broken. The Greek court's determination
was wholly unsupported and relied on an impermissibly broad
interpretation of Article 13(b). United States courts have consistently
recognized that, like the other exceptions to return of a child under
the Convention, Article 13(b)'s exception for grave risk should be
"narrowly drawn." Courts of other contracting nations have also adopted
a narrow view of Article 13(b)'s grave risk exception. Here, as in
Diorinou, the Greek court failed to support its conclusion with evidence
that the child, if returned to the United States, would have experienced
"something greater than would normally be expected on taking a child
away from one parent and passing him to another." In re A., [1988] F.L.R.
365, 372. Although the Greek court opined that the child would suffer
more trauma as a result of his young age, allowing an exception to
return in cases involving young children wrongfully removed or retained
by their mothers would swallow the Convention's rule of return. By
basing its analysis largely on matters properly reserved for the courts
of the child's habitual residence and by construing Article 13(b)'s
grave risk exceptionso broadly, the Greek court's Article 13(b)
determination contravened the intent of the Convention's drafters. As a
result, the determination could not properly support the Greek court's
denial of Petroutsas's petition. It concluded that the Greek court's
failure to comply with the Hague Convention was so egregious that, even
reviewing for abuse of discretion, the district court erred in extending
comity to the Greek court's denial of Petroutsas' petition and to the
specific grounds underlying that denial.
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