## Facts

- A mother (a Panamanian national) and a father (a U.S. citizen) had a daughter who lived with the mother in rural Panama while the father resided in the United States and visited periodically.
- During international travel through an airport in Sydney, Australia, the father took the child from the mother and returned with the child to Montana.
- The mother filed a federal petition under the Hague Convention on the Civil Aspects of International Child Abduction and ICARA seeking the child’s return to Panama as the child’s habitual residence.
- The father opposed return under the Hague Convention’s Article 13(b) exception, claiming return would expose the child to a grave risk of harm based on (1) the mother’s living conditions and poverty, (2) alleged neurological/medical needs purportedly requiring U.S. treatment, and (3) psychological harm from separation and relocation.
- The district court found Article 13(b) satisfied and denied the petition.

## Issues

1. Whether the father proved, under Article 13(b) of the Hague Convention, that returning the child to Panama would expose her to a “grave risk” of physical or psychological harm or otherwise place her in an “intolerable situation.”
2. Whether asserted differences in living standards, speculative medical concerns, or ordinary relocation distress may be used to defeat the Hague Convention’s return remedy and convert the proceeding into a custody contest.

## Decision

- The Ninth Circuit reversed the district court’s denial of the return petition.
- The court held the father failed to carry his burden to show an Article 13(b) grave risk.
- The court ordered the child returned to Panama pursuant to the Hague Convention and ICARA.

## Legal Principles

- Article 13(b)’s grave-risk exception is narrowly construed; the opposing parent must show a risk that is grave, not merely serious, and the evidence must directly establish such risk.
- Hague Convention return proceedings are not custody determinations; evidence aimed at which parent is “better” or what country offers superior living conditions is generally immaterial.
- Poorer or less modern living conditions abroad, without proof of severe danger, abuse, or extreme neglect, do not constitute a grave risk.
- Speculative or unsupported medical claims, including hearsay and lack of proof regarding treatment availability in the habitual-residence country, do not meet the grave-risk standard.
- A child’s attachment to the abducting parent’s new location and the ordinary distress associated with return and relocation do not, standing alone, establish grave psychological harm under Article 13(b).

## Conclusion

The Ninth Circuit concluded the father’s poverty-based, medically speculative, and relocation-based objections did not meet the Hague Convention’s demanding Article 13(b) standard, and it directed the child’s prompt return to Panama so custody could be addressed in the child’s habitual-residence forum.


Cuellar v. Joyce, 596 F.3d 505 (9th Cir. 2010)