UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BOGDAN RADU, No. 22-16316

Petitioner-Appellee, D.C. No. 4:20-cv-00246- v. RM PERSEPHONE JOHNSON SHON, OPINION Respondent-Appellant.

Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding

Argued and Submitted November 21, 2022 San Francisco, California

Filed March 13, 2023

Before: Mary H. Murguia, Chief Judge, and Ryan D. Nelson and Danielle J. Forrest, Circuit Judges.

Opinion by Judge R. Nelson; Concurrence by Chief Judge Murguia 2 RADU V. SHON

SUMMARY *

Hague Convention

The panel affirmed the district court’s order granting, on a second remand, Bogdan Radu’s petition against Persephone Johnson Shon for the return, pursuant to the Hague Convention, of the parties’ two children to Germany. The district court held an evidentiary hearing and granted Radu’s petition. The district court found a grave risk of psychological harm if the children were returned to Germany in the custody of Radu, but it determined that those risks would be mitigated if the children returned in Shon’s temporary custody. The district court ordered Shon to return with the children and retain full custody until the German courts resolved the merits of the parties’ custody dispute. On appeal, in Radu I, the panel vacated and remanded for the district court to determine whether the sole-custody measure would be enforceable in Germany. On remand, the district court held a second hearing. In a second return order, the district court concluded that the enforceability of the sole-custody remedy was uncertain but was no longer necessary. Based on new evidence that a German court would take months to resolve custody, the district court held that ordering Shon to return with the children to Germany, where the default rule was joint custody, sufficiently ameliorated the risk of psychological harm. Shon again appealed. The panel remanded for * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RADU V. SHON 3

reconsideration in light of Golan v. Saada, 142 S. Ct. 1880 (2022), which clarified that, where there is a grave risk that a child’s return would expose the child to physical or psychological harm, consideration of ameliorative measures is discretionary rather than mandatory. On remand, the district court ordered return based on the existing record. Following Golan, the district court exercised discretion to consider ameliorative measures. The district court again stated that ordering Shon to return to Germany with the children would ameliorate the risk of psychological harm. Shon filed the current appeal. On a limited remand, the district court issued a clarifying order. Agreeing with other circuits, the panel held that, in cases governed by the Hague Convention, the district court has discretion as to whether to conduct an evidentiary hearing following remand and must exercise that discretion consistent with the Convention. The panel held that, on the second remand, the district court did not abuse its discretion in declining to hold a third evidentiary hearing when the factual record was fully developed. The panel held that, in making determinations about German procedural issues, the district court neither abused its discretion nor violated Shon’s due process rights by communicating with the State Department and, through it, the German Central Authority. The panel further held that the Federal Rules of Evidence and its hearsay rules do