The Ninth Offers a Party a Hint on a “Non-Issue”

It’s hardly uncommon to see a reviewing court remanding a case to give some pointers to the trial court and even to the parties or their counsel.  But it’s usually across-the-board advice or a warning against future misconduct.

I thought the advice offered in Duarte v. Bardales, case no. 06-56808 (9th Cir. July 1, 2008 [order denying rehearing and rehearing en banc]) was a little different and arguably partisan.  In the original opinion, the Ninth had reversed the trial court’s denial of a motion to vacate, under Federal Rule of Civil Procedure 59(e), of a judgment denying Duarte’s “petition for the return of her children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (‘ICARA’).”  In opposing the petition for rehearing and rehearnig en banc. Bardales apparently raised the prospect that the children would be “subject to a potentially abusive environment if returned to the custody of the mother, Duarte, in Mexico.”  Because the petition had been denied in the trial court due to Duarte’s failure to appear, the trial court had never reached this issue, but is certain to encounter it on remand, which led the Ninth to offer this:

The matter of abuse is not before us and was not reached by the district court. Thus, it is a non-issue but, nevertheless, a matter of concern. The proper place to assert such claim is in the district court under appropriate provisions of the Hague Convention and the affirmative defense of “Grave Risk” which Bardales has asserted in district court but which was never reached by the district judge.

We remind Bardales and his counsel that the Hague Convention, Article 13(b) provides: “The requested State is not bound to order the return of the child if the person . . . which opposes its return establishes that (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Bardales will have the opportunity to establish by appropriate evidence that returning the children to the mother in Mexico will put the children at great risk of physical or psychological harm and that, therefore, the children should remain in California.

Perhaps concern over the welfare of the children is what led the court to address this “non-issue.”