The Tenth Circuit Court of Appeals published its opinion in West v. Dobrev on Wednesday, October 30, 2013.
Petitioner Livia West and Respondent Stanislav Dobrev were married in the United States and their two children were born here. The family moved to France and after about a year, West filed for divorce. The French court ordered the children to remain in the usual home of West. Dobrev moved back to the United States. The French court gave West permission to move with the children to Belgium for employment and the divorce was finalized.
Two years later, Dobrev took the children to the United States for a vacation but then filed suit in Utah state court for “Emergency Jurisdiction and Custody.” West filed a petition in Utah federal district court for the return of the children under Article 3 of the Hague Convention.
The Utah federal district court, after holding a preliminary hearing, granted Petitioner West’s petition for return of her two minor children to their residence in Belgium, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, The International Child Abduction Remedies Act (ICARA). The district court also awarded Petitioner fees, costs, and expenses.
Respondent Dobrev appealed, claiming a denial of due process based on the district court’s refusal to provide him an evidentiary hearing to challenge its finding that Belgium was the habitual residence of the children under the convention. The Tenth Circuit found that Dobrev never contested whether Belgium was the children’s habitual residence.
The court held that Dobrev failed to meet his burden of establishing by clear and convincing evidence an exception to West’s prima facie case for return of the children under the Convention. Dobrev received a meaningful opportunity to be heard at the preliminary hearing; he was not entitled to a fishing expedition.
The court also found no abuse of discretion in the district court’s award of fees and costs and affirmed the district court in all respects.