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In Didur v Viger, (10th Cir. 2006) No. 05-3440 D.C. No. 05-CV-2188-JWL) the Tenth Circuit Court of Appeals reversed the district court and remanded for further proceedings. It pointed out that the district court denied the petition on the basis that the respondent, Thomas Viger, met his burden of establishing by clear and convincing evidence a grave risk of harm to J.D. if the child were returned to Ms. Didur’s custody in Canada. The Court found that the parties had agreed that on the [grave risk] issue, petitioner was willing to proceed on a proffer from respondent of the facts that respondent believed he could prove. By agreeing to proceed on a proffer, petitioner was not agreeing that the respondent could actually prove those facts. The district court mischaracterized the July 18 hearing as an adversarial hearing where Ms. Didur had the opportunity to challenge the truthfulness of Mr. Viger’s accusations. The record reflected otherwise. The district court also determined that Ms. Didur had waived her right to challenge the admissibility of Mr. Viger’s evidence because she had not specifically objected to the district court’s decision to admit the evidence under the relaxed standards of the Hague Convention. The Court of Appeals disagreed. It found that Ms. Didur objected to the entire process employed by the magistrate judge in disregarding the parties’ agreement and treating the proffered evidence as fact without giving her the opportunity to challenge it. Necessarily included in this objection was an objection to the magistrate judge’s decision that all of the evidence was properly admissible for a merits determination. It held that the magistrate judge’s merits decision, as adopted by the district court, constituted a procedural error that required it to reverse the denial of Ms. Didur’s petition and remand for further proceedings to allow Ms. Didur to present rebuttal evidence and/or to challenge the admissibility of the proffered evidence presented by Mr. Viger. Note: The Court rendered an order and judgment which is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel but which may be cited under the terms and conditions of 10th Cir. R. 36.3.

In Didur v Viger, (10th Cir. 2006) No. 05-3440 D.C. No. 05-CV-2188-JWL) the Tenth Circuit Court of Appeals reversed the district court and remanded for further proceedings. It pointed out that the district court denied the petition on the basis that the respondent, Thomas Viger, met his burden of establishing by clear and convincing evidence a grave risk of harm to J.D. if the child were returned to Ms. Didur’s custody in Canada. The Court found that the parties had agreed that on the [grave risk] issue, petitioner was willing to proceed on a proffer from respondent of the facts that respondent believed he could prove. By agreeing to proceed on a proffer, petitioner was not agreeing that the respondent could actually prove those facts. The district court mischaracterized the July 18 hearing as an adversarial hearing where Ms. Didur had the opportunity to challenge the truthfulness of Mr. Viger’s accusations. The record reflected otherwise. The district court also determined that Ms. Didur had waived her right to challenge the admissibility of Mr. Viger’s evidence because she had not specifically objected to the district court’s decision to admit the evidence under the relaxed standards of the Hague Convention. The Court of Appeals disagreed. It found that Ms. Didur objected to the entire process employed by the magistrate judge in disregarding the parties’ agreement and treating the proffered evidence as fact without giving her the opportunity to challenge it. Necessarily included in this objection was an objection to the magistrate judge’s decision that all of the evidence was properly admissible for a merits determination. It held that the magistrate judge’s merits decision, as adopted by the district court, constituted a procedural error that required it to reverse the denial of Ms. Didur’s petition and remand for further proceedings to allow Ms. Didur to present rebuttal evidence and/or to challenge the admissibility of the proffered evidence presented by Mr. Viger. Note: The Court rendered an order and judgment which is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel but which may be cited under the terms and conditions of 10th Cir. R. 36.3.