In Re: Application of Ariel Adan Elena Esther Avans (2006)

As described above, when “a child has been wrongfully removed or retained” from his country of habitual residence, Article 12 of the Hague Con- vention generally requires the deciding authority (here, a district court) to “order the return of the child.” Treaty Doc., —————— 6 Compare In re Adan, 437 F. 3d 381, 395 (CA3 2006) (requiring con- sideration of ameliorative measures); Gaudin v. Remis, 415 F. 3d 1028, 1035 (CA9 2005) (same); Blondin II, 238 F. 3d 153, 163, n. 11 (CA…

As we have said on several occasions, such a determination is fact-intensive and "`necessarily varies with the circumstances of each case.'" In re: Application of Ariel Adan, 437 F.3d 381, 392 (3d Cir. 2006) (quoting Whiting, 391 F.3d at 546 ).

Typically, when the district court makes no written findings of fact, we will “extract findings from his oral decision at the hearing,” In re Application of Adan, 437 F.3d 381, 396 (3d Cir. 2006), and “we view the evidence in the light most likely to support the district court’s decision,” United States v. Gomez, 846 F.2d 557, 560 (9th Cir. 1988) (citing United States v. Alfonso, 759 F.2d 728, 740 (9th Cir. 1985)).

As we have said on several occasions, such a determination is fact-intensive and “‘necessarily varies with the circumstances of each case.’” In re: Application of Ariel Adan, 437 F.3d 381, 392 (3d Cir. 2006) (quoting Whiting, 391 F.3d at 546 ).

See Karkkainen v. Kovalchuk, 445 F.3d 280, 291 (11th Cir. 2006); In re Adan, 437 F.3d 381, 390 (3d Cir. 2006); Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir. 2004); Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir. 2003), cert. denied, 540 U.S. 1107 (2004); Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir.), cert. denied, 537 U.S. 1048 (2002); Miller v. Miller, 240 F.3d 392, 399 (4th Cir. 2001); Mozes, 239 F.3d at 1072 ; Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001);…

See Karkkainen v. Kovalchuk, 445 F.3d 280, 291 (3rd Cir.2006); In re Adan, 437 F.3d 381, 390 (3rd Cir.2006); Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir.2004); Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003), cert. denied, 540 U.S. 1107 , 124 S.Ct. 1062 , 157 L.Ed.2d 893 (2004); Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir.), cert. denied, 537 U.S. 1048 , 123 S.Ct. 603 , 154 L.Ed.2d 521 (2002); Miller v. Miller, 240 F.3d 392, 399 (4th Cir.2001); Mazes, 239 F.3…

See Karkkainen v. Kovalchuk, 445 F.3d 280, 291 (11th Cir. 2006); In re Adan, 437 F.3d 381, 390 (3rd Cir. 2006); Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir. 2004); Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir. 2003), cert. denied, 540 U.S. 1107 (2004); Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir.), cert. denied, 537 U.S. 1048 (2002); Miller v. Miller, 240 F.3d 392, 399 (4th Cir. 2001); Mozes, 239 F.3d at 1072 ; Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001)…

See In re Application of Adan, 437 F.3d 381 , 388 n.3 (3d Cir. 2006) (“Rule 10(e)(2) allows amendment of the record on appeal only to correct inadvertent omissions, not to introduce new evidence.”).

United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). 21 See In re Application of Adan, 437 F.3d 381, 387 (3d Cir.2006). 22 Fed.R.Crim.P. 12(d). 23 In re Application of Adan, 437 F.3d at 396 . 24 See id. 25 App. 366 . 7 Montalbano and the bank manager, we can only speculate about what the District Court believed happened after the police arrived.

See, e.g. , Tsai-Yi Yang , 499 F.3d at 278 ("[E]ven if the respondent meets his or her burden of proving the affirmative defense, the court retains the discretion to order the return of the child if it would further the aim of the Convention which is to provide for the return of a wrongfully removed child.") (emphasis added) (internal quotations omitted); In re Application of Adan , 437 F.3d 381 , 389 (3d Cir. 2006) ("A wrongful removal may nonetheless be justified if one of…

See In re Application of Adan, 437 F.3d 381 , 388 n.3 (3d Cir. 2006) (“[W]e will not consider new evidence on appeal absent extraordinary circumstances, such as those that render the case moot or alter the appropriateness of injunctive relief, a change in pertinent law, or facts of which a court may take judicial notice.”).

App. P. 10(e)(2) “allows amendment of the record on appeal only to correct inadvertent omissions, not to introduce new evidence.” See In re Application of Adan, 437 F.3d 381 , 388 n.3 (3d Cir. 2006) (emphasis added); see also id. (“[W]e will not consider new evidence on appeal absent extraordinary circumstances, such as those that render the case moot, or alter the appropriateness of injunctive relief, a change in pertinent law, or facts of which a court may take judicial no…

While the District Court did not issue any written findings in relation to Gordon's motion to suppress or request for a Franks hearing, the record is sufficiently clear that we may "extract findings from [the court's] oral decision at the hearing,” In re Application of Adan, 437 F.3d 381, 396 (3d Cir. 2006). 2 .

We note that, in all our Hague Convention cases in which we examined a district court’s determination as to where a child was habitually resident, the child had lived in the purported habitual residence countries, See Tsai-Yi Yang, 499 F.3d at 266-67; Karkkainen, 445 *325 F.3d at 285-86; In re Application of Adan, 437 F.3d 381, 386 (3d Cir. 2006); Whiting, 391 F.3d at 542-43 ; Feder, 63 F.3d at 218-20 . 25 .

Cf. In re Application of Adan, 437 F.3d 381, 391 (3d Cir.2006) (“[T]he Convention does not allow the state to which a child has been wrongfully taken actually to decide who should have custody, and thus a determination by the host country that a party had custody rights in the country of origin for purposes of determining whether removal was wrongful under the Convention has no bearing on the merits of a subsequent custody determination in the country of origin once the chil…

Cf. In re Application of Adan, 437 F.3d 381, 391 (3d Cir. 2006) (“[T]he 5 Convention does not allow the state to which a child has been wrongfully taken 6 actually to decide who should have custody, and thus a determination by the 7 host country that a party had custody rights in the country of origin for purposes 8 of determining whether removal was wrongful under the Convention has no 9 bearing on the merits of a subsequent custody determination in the country of 10 origin…

Article 13(b) of the treaty provides that return need not be ordered where “there is a grave risk that ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” *509 So as not to impair the Convention’s general policy, this exception is “narrowly drawn,” Asvesta v. Petroutsas, 580 F.3d 1000, 1020 (9th Cir.2009) (quoting In re Adan, 437 F.3d 381, 395 (3d Cir.2006)), and all facts supporting the exception mus…

Article 13(b) of the treaty provides that return need not be ordered where “there is a grave risk that . . . return would expose the child to physi- 3088 CUELLAR v. JOYCE cal or psychological harm or otherwise place the child in an intolerable situation.” So as not to impair the Convention’s general policy, this exception is “narrowly drawn,” Asvesta v. Petroutsas, 580 F.3d 1000, 1020 (9th Cir. 2009) (quoting In re Adan, 437 F.3d 381, 395 (3d Cir. 2006)), and all facts sup- …

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.” In re Adan, 437 F.3d 381, 395 (3d Cir.2006) (citing Feder, 63 F.3d at 226 ); see also Blondin, 189 F.3d at 246 ; Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.2001) (observing that “grave risk of harm” arises in “situations in which the child faces a real risk of being hurt, physically…

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.” In re Adan, 437 F.3d 381, 395 (3d Cir. 2006) (citing Feder, 63 F.3d at 226 ); see also Blondin, 189 F.3d at 246 ; Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001) (observing that “grave risk of harm” arises in “situa- tions in which the child faces a real risk of being hurt, physi-…

See Gaudin v. Remis, 415 F.3d 1028, 1036-37 (9th Cir. 2005); Whallon v. Lynn, supra, 230 F.3d at 459-60 ; compare Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005); Baran v. Beaty, 526 F.3d 1340, 1345-46 (11th Cir. 2008); Simcox v. Simcox, 511 F.3d 594, 604-08 (6th Cir. 2007); In re Application of Adan, 437 F.3d 381, 395-97 (3d Cir. 2006); Walsh v. Walsh, 221 F.3d 204, 219-20 (1st Cir. 2000).

See Gaudin v. Remis, 415 F.3d 1028, 1036-37 (9th Cir.2005); Whallon v. Lynn, supra, 230 F.3d at 459-60 ; compare Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir.2005); Baran v. Beaty, 526 F.3d 1340, 1345-46 (11th Cir.2008); Simcox v. Simcox, 511 F.3d 594, 604-08 (6th Cir.2007); In re Application of Adan, 437 F.3d 381, 395-97 (3d Cir.2006); Walsh v. Walsh, 221 F.3d 204, 219-20 (1st Cir.2000).

Since this certification was not before either the Bankruptcy Court or the 1 The Complaint is misnumbered so that there are two separate claims labeled “Twenty-Third Claim for Relief.” 5 District Court, we will not consider it on appeal.2 See In re Application of Adan, 437 F.3d 381 , 388 n.3 (3d Cir. 2006) (“[W]e will not consider new evidence on appeal absent extraordinary circumstances, such as those that render the case moot or alter the appropriateness of injunctive reli…

The cases speak of the “shared intent” of the parents, e.g., In re Application of Ariel Adan, 437 F.3d 381, 392 (3d Cir. 2006); Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005), but that formula does not work when as in this case the parents are estranged essen- tially from the outset, the birth of the child (or indeed before).

The cases speak of the “shared intent” of the parents, e.g., In re Application of Ariel Adan, 437 F.3d 381, 392 (3d Cir.2006); Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir.2005), but that formula does not work when as in this case the parents are estranged essentially from the outset, the birth of the child (or indeed before).

Ordinarily, we do "not consider new evidence on appeal absent extraordinary circumstances, such as those that render the case moot or alter the appropriateness of injunctive relief, a change in the pertinent law, or facts of which a court may take judicial notice.” In re Application of Adan, 437 F.3d 381, 389 (3d Cir.2006).

Id. ¶ 15. return had custody rights in that country . . . at the time the child was removed.” Tsai-Yi Yang, 499 F.3d at 275 (quoting In re Application of Adan, 437 F.3d 381, 391 (3d Cir. 2006)).

Standard of Review Under federal decisions, “for all issues arising under the Convention, a District Court’s determination of facts is reviewed for clear error and its application of those facts to the law, as well as its interpretation of the Convention, are reviewed de novo.” In re Application of Adan, 437 F.3d 381, 390 (3d Cir.2006); see also Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.2001) (“Blondin II”); Shalit v. Coppe, 182 F.3d 1124, 1127 (9th Cir.1999); Friedrich v…

The Third Circuit Court of Appeals explained that a grave risk of harm exception encompasses “situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation,” but not “situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences.” In re Application of Adan, 437 F.3d 381, 395 (3d Cir.2006).

See, e.g., Blondin I, 189 F.3d at 248 (declaring that "it is important that a court considering an exception under Article 13(b) take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation”); Gaudin, 415 F.3d at 1035-37 (similar); Adan, 437 F.3d at 395 (similar).

III. “[F]or all issues arising under the [Hague] Convention, a [lower court’s] determination of facts is reviewed for clear error and its application of those facts to the law, as well as its interpretation of the Convention, are reviewed de novo.” Wigley v. Hares, 82 So. 3d 940, 940 (Fla. 4th DCA 2011) (first quoting In re Application of Adan, 437 F.3d 381, 390 (3d Cir. 2006); and then citing Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001); Shalit v. Coppe, 182 F.3d 112…

Pa. 2010)(quoting In re Application of Adan, 437 F.3d 381, 395 (3d Cir. | 2006)). 56) Clear and convincing evidence is an intermediate standard of proof and is | applied in cases where the individual interests at stake are both particularly | important and more substantial than mere loss of money.

Saada 22 v. Golan, 833 F. App’x 829 (2d Cir. 2020), cert. granted, 142 S. Ct. 638 (2021); In re Adan, 437 F.3d 381, 395 (3d Cir. 2006).

“The applicant need only provide some preliminary evidence that he or she actually exercised custody of the child, for instance, took physical care of the child.” In re Adan, 437 F.3d 381, 391 (3d Cir. 2006) (citing Hague Convention Analysis, 51 Fed.

The applicant need only provide some preliminary evidence that he or she actually exercised custody of the child, for instance, took physical care of the child.’ ” In re Application of Adan, 437 F.3d 381, 391 (3d Cir.2006) (quoting Text and Legal Analysis, 51 Fed.Reg. 10,494, 10,507 (Mar. 26, 1986) (hereinafter “Hague Convention Analysis”)).

See also In re: Application of Ariel Adan, 437 F.3d 381, 390 (3rd Cir.2006).

Ed. 2d 1014 (2007); In re Application of Adan, 437 F.3d 381 , 389 n. 3 (3d Cir. 2006) (“[W]e will not consider new evidence on appeal absent extraordinary circumstances, such as those that render the case moot or alter the appropriateness of injunctive relief, a change in pertinent law, or facts of which a court may take judicial notice.”); Gass v. V.I.

It "does not allow the state to which a child has been wrongfully taken actually to decide who should have custody." In re App. of Adan, 437 F. 3d 381, 391 (3d Cir.2006).

The applicant need only provide some preliminary evidence that he or she actually exercised custody of the child, for instance, took physical care of the child.’ ” In re Application of Adan, 437 F.3d 381, 391 (3d Cir.2006) (quoting Hague Convention Analysis, 51 Fed.Reg. at 10,507); see McManus v. McManus, 354 F.Supp.2d 62, 68 (D.Mass.2005) (“The undisputed evidence establishes that [the mother] had physical custody of the children in Northern Ireland and was solely responsib…

However, when a child is too young to have an intent regarding habitual residence, the inquiry becomes “shared parental intent.” In re Application of Adan, 437 F.3d 381, 392 (3d Cir.2006); Whiting v. Krassner, 391 F.3d 540, 547-48 (3d Cir. 2004). 106.

See id.

See id.

See In re Application of Ariel Adan, 437 F.3d 381 , 388 n.3 (3d Cir 2006). 3 The parties agree that Moore has satisfied the first two elements of her prima facie case: Moore engaged in protected activity before and while she applied for the promotion, and DHS did not promote her to DO. 5 sufficiently suggest causation for purposes of a retaliation claim.

See In re Application of Adan, 437 F.3d 381 , 388 n. 3 (3d Cir.2006) (“we will not consider new evidence on appeal absent extraordinary circumstances.”); see also LeBeau v. Spirito, 703 F.2d 639, 643 (1st Cir.1983) (stating that ‘“findings’ and ‘holdings’ as to the merits of the case [in reviewing the *118 denial of a preliminary injunction motion] are not final but should be understood to be merely statements of probable outcomes based on the record as it existed before the…

See In re Application of Adan, 437 F.3d 381, 395 (3d Cir.2006); Danaipour v. McLarey, 286 F.3d 1,16 (1st Cir.2002); U.S. Dep’t of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10,-494, 10,510 (Mar. 26, 1986).

See In re Application of Adan, 437 F.3d 381, 389 (3d Cir.2006).) In any event, his general arguments, that, for instance, the underlying action was “not complicated,” or his arguments relating to the merits of the case, are an insufficient basis for us to disturb the fee award.

See In re Adan, 437 F.3d 381 , 397 n. 7 (3d Cir.2006).

See In re Application of Adan, 437 F.3d 381 , 389 n. 3 (3d Cir.2006) ("[W]e will not consider new evidence on appeal absent extraordinary circumstances.”). 2 .

See In re Application of Adan, 437 F.3d 381 , 389 n. 3 (3d Cir.2006) (“[W]e will not consider new evidence on appeal absent extraordinary circumstances.”).

See Wigley v. Hares, 82 So.3d 932, 940 (Fla. 4th DCA 2011) (quoting In re Application of Adan, 437 F.3d 381, 390 (3d Cir.2006)). .