PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 05-3045 IN RE: APPLICATION OF ARIEL ADAN ELENA ESTHER AVANS, Appellant Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 04-cv-05155) District Judge: Honorable William H. Walls Argued September 29, 2005 Before: ALITO* and AMBRO, Circuit Judges RESTANI,** Judge (Opinion filed: February 14, 2006) Elliot H. Gourvitz, Esquire (Argued) 150 Morris Avenue P.O. Box 476 Springfield, NJ 07081 Counsel for Appellant Walter A. Lesnevich, Esquire (Argued) Francesca Marzano-Lesnevich, Esquire Michael R. Mildner, Esquire Lesnevich & Marzano-Lesnevich 21 Main Street, Court Plaza South Hackensack, NJ 08601 Counsel for Appellee *Then Judge, now Justice, Alito heard oral argument in this case but was elevated to the United States Supreme Court on January 31, 2006. The opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d). **Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation. 2 OPINION OF THE COURT AMBRO, Circuit Judge Elena Esther Avans1 appeals from an order of the United States District Court for the District of New Jersey granting appellee Ariel Adan’s application for return of his daughter Arianna to Argentina pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention” or “Convention”), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (1980). Avans asks us to reverse the District Court’s order and dismiss the application. For the reasons stated below, we vacate the District Court’s order and remand for further proceedings consistent with this opinion. I. The factual background of this case is troubling. We say this not only because of the ominous accusations of abuse that have been directed at Adan, but also because the record on appeal is woefully incomplete. The parties’ submissions to our 1 In her brief, Avans refers to herself as “Elena Esther Mazza.” Because she has not made a motion to amend the official caption of this case to reflect a change in name, we shall refer to her as “Avans” in this opinion. 3 Court are of little help in piecing together the chain of events at issue, and the District Court did not make detailed, written findings of fact to assist us. The facts and procedural history stated herein, therefore, are taken from the District Court record, including transcripts and filings, and (to the extent they are helpful) the parties’ submissions to this Court. A. Background Avans is a naturalized U.S. citizen and former girlfriend of Adan, a citizen of Argentina. The parties met in Argentina in 1998 at a support group for recovering drug and alcohol abusers and began cohabiting shortly thereafter. According to Avans’ testimony before the District Court, Adan became violent shortly after Avans moved in with him. She alleges that Adan locked her in his bedroom, beat her, and threatened her with further harm if she ever left him. In 1999 Avans became pregnant by Adan. In March 2000, while she was still pregnant, Avans came to the United States and began living in New Jersey. Adan followed her in April 2000 and (according to Avans) the abuse resumed. She contends that Adan tried to suffocate her with a pillow, and she filed a report with the Roselle, New Jersey police department alleging that he “picked up two laundry bags and threw them over her head.” Avans gave birth to Arianna on June 15, 2000. The parties lived in New Jersey for the next three months. Avans alleges that during this time the abuse continued, 4 including Adan’s threats to drown the child if Avans ever left him. She filed another report with the Roselle police on June 30, 2000 alleging that Adan pushed her while holding Arianna and, when Avans left to walk to the police station to file a report, Adan drove after her and told her to return home because he had left Arianna alone. In September, Adan announced that he wanted Avans and Arianna to return with him to Argentina. According to Avans, Adan knelt next to Arianna’s crib and screamed in the child’s ear until Avans finally agreed to his demand. On September 15, 2000 the parties and their daughter returned to Argentina. Avans contends the abuse got worse while she was in Argentina, including an incident in March 2002 when Adan allegedly threatened Avans and Arianna with a gun, another incident from the same month when Avans claims Adan hit her at a birthday party, and a later incident when Adan purportedly chained the gate to Avans’ home shut so she could not get out. Throughout these incidents, Avans contends that she repeatedly sought the assistance of the Argentine police and court system but they did nothing, which she attributes to bribes Adan allegedly paid to police and judges. Avans eventually began living apart from Adan, and the parties reached an informal custody agreement regarding Arianna. Aside from short visits to the United States in May 2001 and May 2003, Avans and Arianna remained in Argentina. 5 Avans alleges that Adan began sexually abusing their daughter in 2003. Specifically, she contends that in June 2003 she discovered a pubic hair in her daughter’s vagina, which Adan attributed to Arianna being in a dirty bed. Avans also contends that on several occasions Arianna would return from visits with her father, sometimes after having been gone for only a few hours, with wet hair. The child allegedly told her mother that Adan took baths with her and “loves [her] with his tongue,” whereupon the child showed her mother that Adan apparently had kissed her and put his tongue inside her mouth. Avans also alleges that her daughter said that Adan “was putting something hot in her butt” that hurt. In addition, Avans alleges Adan pushed Arianna so hard that she vomited, and then proceeded to rape Avans in front of Arianna. After these incidents, Avans went to family court in Argentina, accompanied by her landlord and neighbors, and filed a complaint against Adan that resulted in a 90-day temporary restraining order against him. According to Avans, Adan violated the restraining order and the police would not enforce it. Shortly before the February 2004 return date on the temporary restraining order, Avans brought her daughter to the United States. Adan agrees with Avans’ chronology of their relationship but contests her allegations of abuse. He contends that Avans was under the influence of drugs and could not take care of Arianna. He states that he paid all expenses related to Arianna’s 6 care and upbringing in Argentina, and denies having ever raped Avans or bribed police officers or judges. He also denies having sexually assaulted Arianna or abusing Avans, although the transcript of his hearing testimony reveals that he did not specifically deny particular acts of abuse. He admits using marijuana and alcohol while he lived with Avans, but states that she used them as well. His brief before our Court dismisses Avans’ remaining allegations as “gossip that is irrelevant to the issues at bar.” Appellee’s Br. at 6. B. Legal Proceedings in the United States Adan eventually traced a Western Union wire transfer to Avans and discovered she and Arianna had returned to New Jersey. Although the record is unclear on the precise date, Adan came to New Jersey sometime in the spring of 2004 looking for his daughter. In April 2004 Avans obtained a temporary restraining order against Adan from the Superior Court in Union County, New Jersey. Adan filed the application that is the subject of this appeal in the United States District Court for the District of New Jersey in October 2004. The District Court held a hearing on June 6 and 7, 2005, at which it heard testimony from Avans and Adan consistent with the factual background recounted above. At this hearing, the Court also learned that Adan had filed a criminal complaint against Avans in Argentina for kidnaping Arianna, and that the Argentine authorities had issued a warrant for her arrest and 7 were seeking extradition. The Court also heard testimony from Avans that Arianna had been seeing a therapist in New Jersey regarding sexual behaviors the child had exhibited, and received into evidence a photograph that Adan took of Arianna and sent to Avans in which the girl is wearing her underwear over her head like a mask. On June 7, 2005 the District Court issued a one-sentence order granting Adan’s petition for return of the child and ordering Avans to return Arianna to Argentina immediately. Although the Court made no formal written findings of fact, the District Judge did make some oral comments regarding the credibility of the witnesses and their testimony in the course of announcing his decision. He concluded that “the respondent [Avans] is a little more credible” than Adan and that “the petitioner [Adan] lied or was not being truthful when he denied that he had ever verbally threatened [Avans] or abused her, if we use that term in the context of verbal abuse.” The Court described Adan as effusive and just running all over the field in giving answers to questions which did not deal with [the alleged abuse]. But when he was asked those questions [related to the alleged abuse], he sort of more or less clammed up and gave us very bald, sterile [answers,] 8 which was great[ly] at odds with the . . . man whom I saw constantly running off at the mouth, to use the vernacular, on the stand in a very hyper manner, which is quite consistent with the manner in which he is portrayed by the respondent [and is] not inconsistent with what she claims he did. Nonetheless, the District Court concluded that Avans had not demonstrated by clear and convincing evidence that Arianna would be subject to physical or psychological harm if returned to Argentina, as required by the Convention. With respect to the allegations of sexual abuse, the District Judge concluded that Arianna’s statement that her father “was putting something hot in her butt” that hurt was “no proof whatsoever of sexual abuse [because] [t]hat can be anything.”2 As for Avans’ discovery of a pubic hair in Arianna’s vagina, the Judge found “that without anything else means nothing, particularly since there has been no evidence . . . of having [the] child readily examined by a competent medical person to determine whether there had been true sexual abuse or whether, as the petitioner says, the child had 2 During the hearing, the Judge interrupted Avans’ testimony on this issue, stating that “as a parent and a grandparent that can mean a lot of things . . . so I don’t know what that means. . . . [T]hat means nothing to me.” 9 been lying on a dirty bed.” The Judge also did not place much reliance on Arianna’s statement that her father “love[d] [her] with his tongue,” finding the statement “not significant because . . . it’s not unusual in this country at least for parents and grandparents to at times in playing with young toddlers to kiss them with tongues on the cheeks and then sometimes the tongue may have gone too far.” From the transcript, it does not appear that the District Court made any findings regarding the allegations that Adan abused Avans and raped her in front of Arianna, and the Court did not mention the allegations that Adan took frequent baths with the child and screamed in her ear, or regarding the photograph of Arianna wearing her underwear over her face. The District Court also found that the March 2002 gun incident would have been a “substantial factor” in proving a grave risk of harm to Arianna, but discounted its importance because it happened about 23 months before Avans removed Arianna from Argentina. Based on this analysis, the District Court concluded that Avans’ allegations did not constitute “a showing of a grave risk” to Arianna if she was returned to Argentina. The Court further concluded that, even if there was a grave risk of harm to Arianna, he would still be inclined to exercise his discretion to order Arianna returned, as “this matter is best determined by Argentinian courts because it is all interwoven with a struggle, as I said, for custody and determination of domestic abuse, which is not the purpose of the Convention.” 10