Gaudin v. Remis

• Decision Date: 18 July 2005
• Docket Number: No. 03-15687.,03-15687.
• Parties: Catherine Jane Von Kennel GAUDIN, Petitioner-Appellant, v. John R. REMIS, Jr., Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

415 F.3d 1028

Catherine Jane Von Kennel GAUDIN, Petitioner-Appellant, v. John R. REMIS, Jr., Respondent-Appellee.

No. 03-15687.

United States Court of Appeals, Ninth Circuit.

Submitted Filed July 18, 2005.^*

Filed July 18, 2005.

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Paul A. Lynch, Lynch Ichida Thompson Kim & Hirota, Honolulu, HI, for the petitioner.

Chunmay Chang, Honolulu, HI, for the respondent.

Appeal from the United States District Court for the District of Hawaii, Samuel P. King, Senior Judge, Presiding. D.C. No. CV-00-00765-SPK/LEK.

Before THOMPSON, O'SCANNLAIN, and BERZON, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We are invited to decide whether two minor children, abducted by their father in Canada and brought to the United States, should be returned to Canada under the International Child Abduction Remedies Act and the Hague Convention on the Civil Aspects of International and Child Abduction.

I

The facts in this case are set out in prior opinions of this court, see Gaudin v. Remis, 282 F.3d 1178 (9th Cir.2002) ("Gaudin I"); Gaudin v. Remis, 379 F.3d 631 (9th Cir.2004) ("Gaudin II"), and so we recapitulate the case's lengthy history only as is necessary for our decision today. Catherine Gaudin and John Remis have two children, who in 2000 were living with Gaudin in Canada. Remis, concerned about the way Gaudin was raising the children, took them to Hawaii, refused to return them, and filed for custody in Hawaii Family Court. In July 2000, the Family Court awarded temporary custody of the children to Remis.

Gaudin then filed a petition in federal court under the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11603(b), and the Hague Convention on the Civil Aspects of International and Child Abduction (the "Hague Convention" or the "Convention"), October 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501, seeking return of the children to Canada. Remis did not dispute that he had removed the children from Canada, but he argued that the children should not be returned because of the Convention's exception for cases in which the children would face a grave risk of psychological harm if returned to the non-abducting parent. See Hague Convention art. 13 ¶ 1(b), 19 I.L.M. at 1502.

Remis submitted several pieces of evidence in support of his argument to the district court. Chief among them were the declaration of a clinical psychologist who examined the children, a letter from the same psychologist written after further examination, and a report from a guardian ad litem appointed by the Hawaii Family Court.

The psychologist's initial report stated that she had "significant concerns" about the children's mental health and opined that returning the children to their mother "would result in significant damage to their mental health." She reported the children's statements that they "are under severe stress when living with their mother and that the stress is increasing because their mother's religious obsessions are increasing." The children also objected to many of their mother's rules: they were not allowed to watch television, play sports, or use the Internet; could not participate in after-school activities because they interfered with Bible study; were not allowed to sleep in the same bedroom "because they might laugh"; were not allowed to celebrate holidays; were not allowed to attend sleepovers or birthday parties at their friends' homes; had to spend six hours traveling to and attending a church service with their mother each week; and had to wear to school "extremely large or strange-looking" clothing made by their mother.

The psychologist's follow-up letter, written several months after the initial declaration, reported that the boys continued to express anger at their mother. When one of the boys talks about his mother, the psychologist reported, "[r]age flashes from his eyes." The same boy "said that he would not be able to stand it emotionally if he were returned to his mother." The other boy's anger was less but still "considerable."

The report of the guardian ad litem, written around the same time as the psychologist's letter, described the guardian's conversations with the boys, during which they made similar complaints to those contained in the psychologist's declaration. The report described the impressions of Remis's secretary, who had spent time with the boys while they were visiting Remis's office: she described how "when the boys joked, they joked about how they would torture girls or electrocute them." They told the secretary that if she ever gave birth to a girl, they would tie her up and electrocute her. They also told the secretary that they hated their mother and did not want to return to her. The guardian ad litem also reviewed written reports from the boys' teachers, who confirmed that the boys had been socially isolated and had worn strange clothing to school, including "baggy pants" and "clown pajamas."

The report also described the impressions of Gaudin's pastor in Quebec, who reported that the sons are very close to their mother and engage in activities together such as hiking and fishing. He admitted that Gaudin's style of dress was eccentric but stated that "everyone thinks highly of her" and that he would trust her to watch his own children.

The report stated that the children "report that life with their father is fun" and indicated their desire to stay with him. The guardian ad litem recommended that Remis receive sole physical and legal custody of the children, but noted that her "recommendation is limited by the fact that [she] has had no input from Ms. Gaudin because Ms. Gaudin has chosen not to communicate with" the guardian.

Gaudin, in turn, primarily relied upon her own affidavit that stated that she was a good parent and letters from a neighbor and her pastor stating that she cared for the children. She also alleged that Remis has a drug problem, that he inappropriately sleeps with the children while in the nude, and that he had recently made a sexual advance toward one of her children by another relationship.

On December 11, 2000, the district court denied the petition. The court agreed with Gaudin that Remis had wrongfully taken the children from Canada, but credited the reports of the guardian ad litem and the psychologist and so concluded that the children would suffer a "grave risk of psychological harm" if returned to Gaudin.

Gaudin appealed to this court. While that appeal (the "Gaudin I appeal") was pending, the Hawaii Family Court awarded permanent custody of the children to Remis. It also concluded that the children would face a "grave risk of psychological harm" if they were returned to their mother. (The Hawaii Supreme Court recently affirmed the state-court custody judgment, though it did not directly address the grave-risk issue.)

On October 12, 2001, after briefing was concluded in the Gaudin I appeal, Remis moved to dismiss for mootness. He alleged that Gaudin had moved permanently to Hawaii, purchased a new home there, secured a Hawaiian real estate broker's license, and married her attorney in this case, who is licensed to practice in Hawaii. Remis argued that neither ICARA nor the Hague Convention could afford her any relief because both parents and the children were permanently located in Hawaii.

In our decision of March 2002, we held that ICARA and the Convention cannot be invoked when the petitioner moves permanently to the same country in which the abductor and the children are located. See Gaudin I, 282 F.3d at 1183. The parties disputed whether Gaudin had actually moved permanently to Hawaii, however, and so we remanded to the district court for it to make that determination. The district court found that she had indeed moved permanently, but Gaudin appealed and another panel of this court reversed, holding that "domicile [is] the appropriate measure of whether one has moved permanently to a new jurisdiction" and that Gaudin's temporary immigration status prevented her from establishing domicile in the United States. Gaudin II, 379 F.3d at 637-38.

The case is therefore not moot. The Gaudin II panel has transferred the case back to this panel for further proceedings pursuant to our instruction in Gaudin I, see 282 F.3d at 1184. Essentially, then, we are back where we were four years ago, before the mootness issue arose: we must consider the merits of the district court's decision of December 2000.

II

A

On January 28, 2005, after the case was transferred to this panel, Remis again moved to dismiss the appeal and response and reply briefs were filed. First, then, we must consider that motion. Remis argues that the appeal should be dismissed on grounds of res judicata. The Hawaii Family Court held, in its custody orders of September 20, 2001, that the children should not be returned to Gaudin pursuant to ICARA because "the return of the parties' minor children ... would expose them to a `grave risk of psychological harm'...." The Hawaii Supreme Court affirmed the orders on November 16, 2004, holding that ICARA permitted the Family Court to assume jurisdiction over the custody action. Remis argues that the Family Court's decision, affirmed by the Hawaii Supreme Court, now binds this court.

We have held, however, that ordinary principles of claim and issue preclusion do not apply to claims under ICARA and the Convention. See Holder v. Holder, 305 F.3d 854, 863-64 (9th Cir.2002). We noted in Holder that 42 U.S.C. § 11603(g)

provides that federal courts adjudicating Hague Convention petitions must accord full faith and credit only to the judgments of those state or federal courts that actually adjudicated a Hague Convention claim in accordance with the dictates of the Convention and ICARA.

Id. at 864 (emphasis added). Gaudin did not bring her ICARA claim before the Hawaii courts; instead, she chose to exercise her right to seek relief under ICARA in federal court while simultaneously...