FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BOGDAN RADU, 

Petitioner-Appellee, 

 v. 

PERSEPHONE JOHNSON SHON, 

Respondent-Appellant.

No. 22-16316 

D.C. No.

4:20-cv-00246-

RM 

OPINION

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 not 

apply to foreign law materials.

Finally, the panel held that the record provided adequate 

support for the district court’s fact findings underlying its 

clarified return order, and the law-of-the-case doctrine did 

not prevent the district court from revisiting its prior ruling 

on grave risk. The panel therefore affirmed the district 
4 RADU V. SHON

court’s grant of the petition for the children’s return with the 

ameliorative measures ordered by the district court.

Concurring, Chief Judge Murguia wrote that she 

concurred fully in the principal opinion. She wrote 

separately to express her view that, in Radu I, the panel 

should not have declined to allocate a burden of proof on the 

reasonableness of an ameliorative measure. Chief Judge 

Murguia wrote that a future panel should follow other 

circuits and hold that, when a petitioner proffers a measure 

to ameliorate the grave risk of harm, it is the petitioner’s 

burden to establish that the measure is reasonably 

appropriate and effective.

COUNSEL

Kelly A. Powers (argued) and Stephen J. Cullen, Miles & 

Stockbridge PC, Washington, D.C.; Shaun P. Kenney, The 

Kenney Law Firm PC, Tucson, Arizona; for RespondentAppellant. 

Michelle E. Irwin (argued), Fenwick & West LLP, Seattle, 

Washington; Rina Plotkin and Todd R. Gregorian, Fenwick 

& West LLP, San Francisco, California; for PetitionerAppellee.
RADU V. SHON 5

OPINION

R. NELSON, Circuit Judge:

This is the third appeal in an international child custody 

dispute between Persephone Johnson Shon and Bogdan 

Radu over their minor children. While the family was 

residing in Germany, Shon took the children to the United 

States and has refused to return them. The Hague 

Convention generally requires children to be returned to the 

state of habitual residence so that country’s courts may

adjudicate the merits of any custody disputes. We 

previously vacated and remanded the district court’s first 

order to return the children to Germany. See Radu v. Shon, 

11 F.4th 1080 (9th Cir. 2021) [Radu I], vacated, 142 S. Ct.

2861 (2022), in light of Golan v. Saada, 142 S. Ct. 1880 

(2022). Because the Supreme Court issued its decision in 

Golan while we were considering Shon’s appeal of the 

second return order, we also remanded that order for the 

district court’s reconsideration. The district court then 

granted the petition a third time. We now affirm. 

I

A

The Hague Convention on the Civil Aspects of 

International Child Abduction (Convention), Oct. 25, 1980, 

T.I.A.S. No. 11670, “address[es] ‘the problem of 

international child abductions during domestic disputes.’” 

Lozano v. Montoya Alvarez, 572 U.S. 1, 4 (2014) (quoting 

Abbott v. Abbott, 560 U.S. 1, 8 (2010)). It aims “to secure 

the prompt return of children wrongfully removed” and 

“ensure that rights of custody and of access” are respected 

across Contracting States. Convention Art. 1. All 
6 RADU V. SHON

signatories must “use the most expeditious procedures 

available” to implement these goals. Convention Art. 2. 

Contracting States must also create Central Authorities to 

facilitate cooperation. Convention Art. 6 & 7. 

Domestically, the International Child Abduction Remedies 

Act (ICARA) implements the Convention’s rules, creates 

the United States Central Authority, and gives our courts

jurisdiction to adjudicate disputes under the Convention. 22 

U.S.C. § 9001 et seq.

“The Convention’s central operating feature is the return 

remedy.” Abbott, 560 U.S. at 9. This remedy is 

“provisional” because it merely “fixes the forum for custody 

proceedings” and leaves the merits to the country of habitual 

residence. Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020) 

(internal quotation marks and citation omitted). Under the 

Convention, courts “shall order the return” of “a child [who] 

has been wrongfully removed or retained.” Convention Art. 

12. Article 13 provides exceptions. Relevant here, the court 

“is not bound to order the return” of a child if the party 

opposing return establishes that “there is a grave risk that 

[the child’s] return would expose the child to physical or 

psychological harm.” Convention Art. 13(b). Under Article 

13(b), courts have “the discretion to grant or deny return.” 

Golan v. Saada, 142 S. Ct. 1880, 1892 (2022). That 

discretion allows for the consideration of measures that 

would ameliorate the grave risk. See id. at 1893.

B

Radu and Shon married in 2011 in the United States. 

Their older child, O.S.R., was born in the United States in 

2013, and their younger child, M.S.R., was born in Germany 

in 2016. Both children are citizens of the United States but 

not Germany. From 2016 to 2019, Radu, Shon, and their 
RADU V. SHON 7

children lived in Germany. Shon took O.S.R. and M.S.R. 

from Germany to the United States in June 2019. Shon and 

the children have since lived with Shon’s parents in Arizona, 

despite Radu’s wishes for the children to be brought back to 

Germany. 

1

Radu petitioned for the children to be returned to 

Germany in federal district court in Arizona in June 2020. 

The district court held an evidentiary hearing and granted 

Radu’s petition. The court found a grave risk of 

psychological harm if the children were returned to Germany 

in the custody of Radu. The court determined, however, that 

those risks would be mitigated if the children returned to 

Germany in Shon’s temporary custody. So the court ordered

Shon to return with the children and retain full custody until 

the German courts resolved the merits of the custody dispute. 

At that time, Gaudin v. Remis made the consideration of 

ameliorative measures mandatory. See 415 F.3d 1028, 1035 

(9th Cir. 2005) (“Courts applying ICARA have consistently 

held that, before denying the return of a child because of a 

grave risk of harm, a court must consider alternative 

remedies that would allow both the return of the children to 

their home country and their protection from harm.” 

(internal quotation marks and citation omitted)). 

Shon appealed. We vacated and remanded for the 

district court to determine whether the sole-custody measure

would be enforceable in Germany. See Radu I, 11 F.4th at

1089–90.

2

On remand, the district court held a second hearing at

which Shon presented expert testimony and the parties 
8 RADU V. SHON

testified. Shon’s expert, a Germany-licensed attorney, stated 

that the temporary sole-custody order would not be 

enforceable because Germany does not recognize 

ameliorative measures. He also testified that a German court 

may take up to six months to decide custody because the 

children would not be considered habitually resident in 

Germany until then. Furthermore, because the children are 

not German citizens, he testified that neither Shon nor Radu 

could initiate German custody proceedings or obtain 

protective measures from abroad. 

Shon testified that her savings would not cover travel or 

living expenses in Germany but conceded that her parents, 

who had assisted her financially during this case, had paid 

for her plane tickets for her previous return from Germany. 

She was also afraid of being arrested upon returning to 

Germany but did not know of any pending legal matters at 

that time. Radu testified that he would pay for airfare and 

housing for Shon and their children pending the custody 

determination. He promised to maintain a separate 

household and to cooperate with Shon. He also testified that 

Germany has a child-protection agency that could ensure the 

children’s safety if Shon became unavailable. 

The district court then contacted the State Department, 

Office of Children’s Issues’ country officer for Germany, 

who contacted the German Central Authority for the court. 

The court did not receive a binding statement on the time

needed for a German court to determine custody. But the 

German Central Authority cited Section 155 of the Act on 

Proceedings in Family Matters and Matters of NonContentious Jurisdiction, which provides for handling of 

custody issues “in an expedited manner.” The German 

Central Authority also confirmed that Germany has youth 
RADU V. SHON 9

welfare offices that may conduct home visits or take custody

of children if necessary. 

In a second return order, the district court concluded that 

the enforceability of the sole-custody remedy was uncertain. 

But that was no longer necessary because the district court

had considered the risk of psychological harm over too long 

of a time period. Based on the new evidence that a German 

court would take months to resolve custody, the 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. We stayed the appeal pending the 

Supreme Court’s resolution of Golan and eventually 

remanded for reconsideration in light of Golan’s 

clarification that consideration of ameliorative measures is 

discretionary rather than mandatory. See 142 S. Ct. at 1892–

93. 

3

The district court did not hold another hearing on the 

second remand but ordered return based on the existing 

record. Following Golan, the district court exercised 

discretion to consider ameliorative measures. Relying on the 

second return order’s analysis, the district court again stated

that ordering Shon to return to Germany with the children 

would ameliorate the risk of psychological harm. It denied 

Shon’s request for a new evidentiary hearing, partially

because there was no new evidence about Radu’s 

interactions with the children and partially because a hearing 

would contravene the Convention’s directive for expeditious 

resolution. 
10 RADU V. SHON

The present appeal arises from the third return order. 

Given the parties’ uncertainty about aspects of the ordered 

remedy, and unresolved logistical issues, we ordered a 

limited remand while retaining jurisdiction to avoid further 

delay. See Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146, 

1150 (9th Cir. 2006) (ordering “a limited remand to the 

district court”). 

We directed the district court to clarify (1) its current 

Article 13(b) grave-risk finding and ameliorative measure(s)

ordered, (2) whether Radu must pay for airfare, (3) whether 

Radu must pay for separate living arrangements, (4) the 

custody arrangements (sole or joint) while Shon was 

temporarily residing in Germany, (5) the custody 

arrangements if Shon is no longer able to legally reside in 

Germany before a German court decides custody, (6) the 

need to notify German child protective services upon the 

children’s arrival, and (7) whether, if necessary, German 

child protective services have jurisdiction to oversee the 

children’s wellbeing.

The district court answered those questions. First, it

explained that the grave risk of psychological harm arose

only if the children remained in Radu’s sole custody for a 

longer time, and that no harm would arise if Shon and Radu 

had joint custody or if Radu had sole custody for a limited 

duration. Radu v. Shon, No. CV-20-00246-TUC-RM, 2023 

WL 142908, at *2 (D. Ariz. Jan. 10, 2023). Second, Shon 

must pay for her and the children’s airfare back to Germany. 

Id. at *3. Third, Radu must pay for separate living 

arrangements because Shon would take unpaid leave and 

could not work in Germany. Id. Fourth, the parties would 

have joint custody, as German law provides, pending a final 

custody determination. Id. Fifth, in the event Shon could 

not remain until the merits decision, the children would enter 
RADU V. SHON 11

Radu’s physical custody. Id. Sixth, the court determined 

that notifying German child protective services was 

unnecessary. Id. Seventh, the court judicially noticed the 

existence of jugendamt, the German child protective services 

agency, and explained that the record suggests that the 

agency would have authority over the children once they 

arrive in Germany. Id.

We asked for supplemental briefs about the clarification 

order’s effect. The issues currently before us are whether the 

district court should have conducted an evidentiary hearing

during the second remand or the limited remand, refrained 

from contacting the State Department, or ultimately 

determined that the record supported its ameliorative 

measure. 

II

The Convention is in force between the United States 

and Germany. See Holder v. Holder, 305 F.3d 854, 859 (9th 

Cir. 2002). We have jurisdiction under 28 U.S.C. § 1291

and “review the district court’s factual determinations for 

clear error, and the district court’s application of the 

Convention to those facts de novo.” Flores Castro v. 

Hernandez Renteria, 971 F.3d 882, 886 (9th Cir. 2020). 

III

A

Shon contends that the district court should have held a 

new evidentiary hearing during the second remand or the 

limited remand. She relies on Gaudin’s instruction that

“[t]he questions before the district court on remand will be 

whether a grave risk of harm now exists, and if so, whether 

that risk can be minimized through an alternative remedy,” 
12 RADU V. SHON

415 F.3d at 1036, for her position that a new hearing is 

necessary to determine the current conditions. 

Neither ICARA nor the Convention specify when a court 

must hold an evidentiary hearing. ICARA instructs courts 

to “decide the case in accordance with the Convention.” 22 

U.S.C. § 9003(d). And the Convention directs courts to “act 

expeditiously in proceedings for the return of children.” 

Convention Art. 11. It also permits a court to “order the 

return of the child at any time” notwithstanding the other 

provisions. Convention Art. 18 (emphasis added). We 

accordingly review the district court’s decision not to hold a 

new evidentiary hearing for abuse of discretion. Under that 

standard, we affirm the district court unless it commits a 

legal error in interpreting the Convention, or clearly errs in 

determining the facts from the record. See United States v. 

Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc). 

Any categorical rule requiring new hearings would 

contravene the Convention’s directive for expeditious 

resolution. The district court is far better situated to 

determine the exact procedures necessary—whether a 

hearing or supplemental briefing, for example—to aid its 

resolution of the case. A per se rule would impede that 

flexibility with minimal upside. Under some circumstances, 

a refusal to hold a new hearing could constitute an abuse of 

discretion. But the district court here declined a third 

evidentiary hearing because the evidence of Radu’s 

treatment of the children—on which the court based its 

ameliorative measure and grave-risk finding—had not 

changed; Radu had not had contact with the children since

the earlier hearings. Under these circumstances, another
RADU V. SHON 13

hearing would add little to a well-developed record and 

needlessly delay proceedings.1

Our sister circuits agree. In March v. Levine, the 

question presented was whether the district court improperly 

granted summary judgment to a father petitioning for his 

children’s return without allowing discovery or a hearing on 

the merits. See 249 F.3d 462, 468 (6th Cir. 2001). The Sixth 

Circuit affirmed. Recognizing that Convention cases are 

unique, the court explained that “neither [the Convention nor 

ICARA] expressly requires a hearing or discovery”; instead 

they require “expeditious action.” Id. at 474. The court also 

found persuasive that “courts in other Contracting States to 

the treaty have also upheld summary proceedings on 

review.” Id. at 475 (discussing Australian court 

proceedings). 

The Tenth Circuit reached the same conclusion in West 

v. Dobrev, reasoning that Article 18’s permission to order 

return at any time provides trial courts “a substantial degree 

of discretion in determining the procedures necessary to 

resolve a petition filed pursuant to the Convention and 

ICARA.” 735 F.3d 921, 929 (10th Cir. 2013). 

We find these decisions persuasive and conclude that 

Gaudin does not require otherwise. There, we said that the 

lapse of time made it “unnecessary for us to evaluate the 

merits of the district court’s finding that a grave risk of 

psychological harm” existed five years ago. Gaudin, 415 

F.3d at 1036. This was because the court should “consider 

1 Shon asserts that she would have presented a child psychology expert 

at the new hearing. When Shon previously tried to introduce that expert 

at the second hearing, she did not object to the district court’s exclusion 

of the expert. 
14 RADU V. SHON

the effect of any possible remedies in light of circumstances 

as they exist in the present.” Id. We did not, however,

specify the way the district court should consider present 

circumstances or mandate a new evidentiary hearing upon 

every remand. 

We now hold that, in cases governed by the 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.

2 The district 

court did not abuse its discretion in declining to hold a third 

evidentiary hearing when the factual record was fully 

developed.

B

Shon next asserts that the district court’s 

communications with the State Department and the German 

Central Authority were ex parte, resulted in hearsay 

evidence, and violated Shon’s due process rights. 

We once “treat[ed] questions of foreign law as questions 

of fact to be pleaded and proved.” de Fontbrune v. Wofsy, 

838 F.3d 992, 994 (9th Cir. 2016). But Federal Rule of Civil 

Procedure 44.1 clarified that an interpretation of foreign law 

“must be treated as a ruling on a question of law.” 

Accordingly, like any legal issue, “the court may consider 

any relevant material or source, including testimony, 

whether or not submitted by a party or admissible under the 

2 Contrary to Shon’s argument, we did not direct the district court to hold 

a hearing on the limited remand. Even if the district court wrongly 

interpreted our order as forbidding an evidentiary hearing, we did not 

require one. Nor was one needed when the existing evidence already 

sufficiently addressed the factual issues identified in our limited remand 

order. Thus, any error would have been harmless.
RADU V. SHON 15

Federal Rules of Evidence.” Fed. R. Civ. P. 44.1. Moreover,

“the court is not limited by material presented by the parties; 

it may engage in its own research and consider any relevant 

material thus found.” Fed. R. Civ. P. 44.1 advisory 

committee’s note to 1966 amendment. That said, “expert 

testimony accompanied by extracts from foreign legal 

materials has been and will likely continue to be the basic 

mode of proving foreign law.” Universe Sales Co., Ltd. v. 

Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir. 1999). 

Courts nonetheless have an “independent obligation to 

adequately ascertain relevant foreign law, even if the parties’ 

submissions are lacking.” de Fontbrune, 838 F.3d at 997. 

Though international comity requires American courts to 

“carefully consider a foreign state’s views about the meaning 

of its own laws,” that deference has its limits. Animal Sci. 

Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865, 

1873 (2018). “The appropriate weight in each case . . . will 

depend upon the circumstances; a federal court is neither 

bound to adopt the foreign government’s characterization 

nor required to ignore other relevant materials.” Id. 

Understanding the laws and procedures of another

country can be difficult—especially when trying to make 

such determinations expediently, as the Convention directs. 

And the State Department and foreign Central Authorities 

are proper and useful resources when evaluating a foreign 

legal landscape. See Convention Art. 7. A sister circuit, for 

instance, has directed a district court “to make any 

appropriate or necessary inquiries of the [foreign 

government] . . . and to do so, inter alia, by requesting the 

aid of the United States Department of State, which can 

communicate directly with that foreign government.” 

Blondin v. Dubois, 189 F.3d 240, 249 (2d Cir. 1999). 

Indeed, we contemplated the district court’s ability to seek 
16 RADU V. SHON

assistance from the State Department when we remanded the 

first return order. See Radu I, 11 F.4th at 1090–91. 

Shon does not contest any foreign legal conclusion but 

challenges the methods the court used to determine German 

procedural issues. Though a legal conclusion on foreign law 

is reviewed de novo, see de Fontbrune, 838 F.3d at 1000, we 

have indicated that a district court’s selection of methods to 

evaluate foreign law is discretionary. See Tobar v. United 

States, 639 F.3d 1191, 1200 (9th Cir. 2011) (noting that the 

district court could “inquire further into the content of 

Ecuadorian law” “in its discretion”). Accordingly, we 

review the district court’s methods of foreign law research 

for abuse of discretion. This deferential standard is 

necessary to preserve the flexibility that Rule 44.1 affords 

courts to research foreign law. And our de novo review of 

the ultimate legal conclusion ensures that foreign legal issues 

are treated like domestic ones.

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. “[I]ndependent judicial research” on a legal 

question “does not implicate the judicial notice and ex parte 

issues spawned by independent factual research.” de 

Fontbrune, 838 F.3d at 999; see also G&G Prods. LLC v. 

Rusic, 902 F.3d 940, 948 (9th Cir. 2018) (“formal notice” of 

court’s intent to research foreign law not required). Nor do 

the Federal Rules of Evidence and its hearsay rules apply to 

foreign law materials, much as legal research on domestic 

law cannot trigger evidentiary objections. See de Fontbrune, 

838 F.3d at 999.

Of course, “both trial and appellate courts are urged to 

research and analyze foreign law independently,” Twohy v. 
RADU V. SHON 17

First Nat. Bank of Chi., 758 F.2d 1185, 1193 (7th Cir. 1985); 

see also de Fontbrune, 838 F.3d at 997, and with due 

consideration for the parties’ submissions. But here, the 

district court did not view itself bound by information 

received from the State Department; it properly considered 

and weighed that information alongside the testimony of the 

parties and Shon’s expert. Shon—who does not challenge 

any of the legal conclusions that the district court reached—

fails to persuade that the district court abused its discretion 

in the way it reached them. 

C

Finally, Shon challenged several factual findings 

underlying the district court’s third return order and asserted 

that the law-of-the-case doctrine prohibited the court from 

revisiting its grave-risk finding. We review factual findings 

for clear error, which occurs if “the finding is illogical, 

implausible, or without support in inferences that may be 

drawn from the facts in the record.” Doe v. Snyder, 28 F.4th 

103, 106 (9th Cir. 2022) (internal quotation marks and 

citation omitted). “While a district court has no obligation 

under the Convention to consider ameliorative measures that 

have not been raised by the parties, it ordinarily should 

address ameliorative measures raised by the parties or 

obviously suggested by the circumstances of the case . . . .” 

Golan, 142 S. Ct. at 1893. 

On remand, the district court clarified that the minor 

children would be at a grave risk of psychological harm only 

if they returned to Germany and remained in Radu’s sole 

custody for years due to the cumulative nature of 

psychological harm. Radu, 2023 WL 142908, at *2. If Shon 

could not remain in Germany past the expiration of her 

tourist visa (around ninety days), then the court found no 
18 RADU V. SHON

issue with Radu taking physical custody of the children for 

a short time until the final custody determination is made by 

German authorities. Id. Because no exception to return 

would apply under those circumstances, the court ordered 

the children’s return. 

Many of the specific findings that Shon first 

challenged—such as the enforceability of sole custody as an 

ameliorative measure and her parents’ willingness to travel 

to Germany—are immaterial under the clarified return order, 

which does not rely on these facts. As to the findings that 

remain at issue, the record provides adequate support. See 

Landis v. Wash. State Major League Baseball Stadium Pub. 

Facilities Dist., 11 F.4th 1101, 1105 (9th Cir. 2021) (“This 

is deferential review; we reverse only if we are left with a 

definite and firm conviction that a mistake has been 

committed.” (internal quotation marks and citation 

omitted)).

First, the record supports the district court’s 

determination that the time frame in which a German court 

would determine custody would be a few months rather than 

years. The district court found that a merits decision would 

be made within months. Radu, 2023 WL 142908, at *2. 

Shon’s German law expert’s testimony supports this finding. 

He testified that a German court would likely require the 

children to live in Germany for up to six months before 

determining custody but that the court would also have 

discretion to make an earlier decision. And the district court 

cited a German statute providing that the determination of 

custody issues “shall have priority” and “shall be handled in 

an expedited manner.” That the waiting period is likely to 

be months instead of years is supported by the record. 
RADU V. SHON 19

Second, the hearing testimony supports the court’s 

determination that Shon could return with the children. 

When asked during the hearing if she would accompany the 

children, Shon answered, “Of course.” She also said that she 

could take humanitarian leave of up to six months from her 

job with her manager’s approval. Although Shon expressed

some financial concerns, the district court relied on other 

evidence, such as her employment, lifestyle, and ability to 

obtain her parents’ financial support. That the district court 

ordered Radu to pay for a separate household for Shon and 

the children, Radu, 2023 WL 142908, at *3, further 

minimizes these concerns. Shon’s ability to remain in 

Germany until the final custody decision is no longer 

relevant: The district court clarified that no grave risk arises 

if the children enter Radu’s physical custody for the 

remaining time. 

Third, based on the lack of any evidence or testimony 

about pending criminal charges in Germany, the court drew 

the supported inference that none existed. 

Finally, the law-of-the-case doctrine did not prevent the 

district court from revisiting its prior ruling on grave risk. 

“[T]he law-of-the-case doctrine ‘merely expresses the 

practice of courts generally to refuse to reopen what has been 

decided, not a limit to their power.’” Christianson v. Colt 

Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting 

Messinger v. Anderson, 225 U.S. 436, 444 (1912)). It 

“applies most clearly where an issue has been decided by a 

higher court.” Askins v. U.S. Dep’t of Homeland Sec., 899 

F.3d 1035, 1042 (9th Cir. 2018). We did not decide the 

grave-risk issue in the first appeal because Radu did not 

challenge the district court’s finding, but we noted that “the 

facts here do seem to be a borderline case whether an Article 

13(b) finding is warranted.” Radu I, 11 F.4th at 1089. Even 
20 RADU V. SHON

though the district court found grave risk in its first return 

order, it was free to revisit this ruling based on updated 

evidence about the likely time frame for German courts to 

decide the merits of the custody dispute. See Radu, 2023 

WL 142908, at *2. As we have discussed, Gaudin instructs 

district courts to decide whether grave risk exists based on 

the current circumstances. 415 F.3d at 1036.

IV

The district court did not err in refusing to hold a new 

evidentiary hearing or in consulting the State Department. 

Adequate evidence supports the factual findings that Shon 

challenges. We thus affirm the district court’s grant of the

petition for the children’s return with the ameliorative 

measures ordered by the district court.

3

AFFIRMED.

3 Shon’s motion to stay the lower court action is denied as moot.
RADU V. SHON 21

MURGUIA, Chief Judge, concurring: 

I concur fully in the principal opinion. I write separately 

to express my view that, in Radu I, we should not have 

“decline[d] to allocate a burden of proof on the 

reasonableness of” an ameliorative measure. Radu v. Shon, 

11 F.4th 1080, 1089 (9th Cir. 2021) [Radu I], cert. granted, 

judgment vacated, 142 S. Ct. 2861 (2022). When we did so, 

we noted: “Congress is capable of assigning burdens of 

proof and has already done so under [the International Child 

Abduction Remedies Act (“ICARA”)]. We need not add 

judicial constraints absent from ICARA or the [Hague 

Convention on the Civil Aspects of International Child 

Abduction (“Convention”)].” Id. (citation omitted). 

It is true that the Convention and ICARA provide that 

the petitioner has the burden to establish a prima facie case 

of wrongful removal. See Golan v. Saada, 142 S. Ct. 1880, 

1888–89 (2022). And both the Convention and ICARA then 

shift the burden onto the respondent to prove that, if 

returned, the removed children would be subject to a grave 

risk of physical or psychological harm. See id. But neither 

the Convention nor ICARA mentions measures that could 

ameliorate such a grave risk. Id. at 1892. Rather, 

ameliorative measures are a “judicial construct.” Danaipour 

v. McLarey, 286 F.3d 1, 21 (1st Cir. 2002) (citation omitted). 

After further consideration, I now believe that when a 

petitioner proffers a measure to ameliorate the grave risk of 

harm, it should be the petitioner’s burden to establish that the 

measure is reasonably appropriate and effective. Three of 

our sister circuits have adopted this view, and we should 

have adopted it in Radu I. See Simcox v. Simcox, 511 F.3d 

594, 611 (6th Cir. 2007); Acosta v. Acosta, 725 F.3d 868, 

877 (8th Cir. 2013); Danaipour, 286 F.3d at 21. Placing this 
22 RADU V. SHON

burden on the petitioner does not preclude district courts 

from considering, on their own, potential ameliorative 

measures not raised by the parties that are “obviously 

suggested by the circumstances of the case.” Golan, 142 S. 

Ct. at 1893. It only assists district courts’ decisionmaking 

and guides their discretion as to the measures raised by a 

petitioner seeking to mitigate a grave risk of harm.

This issue is no longer squarely presented in this case, 

and accordingly, we cannot resolve it. But because the 

Supreme Court vacated Radu I in light of Golan, a future 

panel may—and, in my view, should—properly allocate the 

burden of proof in an appropriate case.