Sinclair v Sinclair (6th Cir. Mich. 1997)No. 96-1015
21 International Abduction [US 1997]
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UNPUBLISHED OPINION
United States Court of Appeals, Sixth Circuit.
Richard Charles Patrick SINCLAIR, Plaintiff-Appellee,
v.
Lana Marie SINCLAIR, Defendant-Appellant.
No. 96-1015.
Decided July 30, 1997.
Before MERRITT, BOGGS, and DAUGHTREY, Circuit Judges.
ORDER
001 Lana Marie Sinclair appeals a district court judgment
granting her ex-husband’s petition filed under the Hague
Convention on the Civil Aspects of International Child
Abduction and the International Child Abduction Remedies
Act, 42 U.S.C. 11601-610. This case has been referred
to a panel of the court pursuant to Rule 9(a), Rules of the
Sixth Circuit. Upon examination, this panel unanimously
agrees that oral argument is not needed. Fed. R.App.
P.34(a).
002 Richard Charles Patrick Sinclair, a resident of
Canada, filed his petition and an ex parte motion for a
temporary restraining order in the district court seeking
the return of his two youngest minor children over whom he
had custody pursuant to a Canadian judgment. Mr. Sinclair
alleged that Ms. Sinclair abducted the two youngest of their
four children from Canada and brought them to her parents’
house in the Western District of Michigan. The district
court issued a temporary restraining order the following day
and federal marshals took the two children into protective
custody. After an in camera interview with the children,
the district court continued a preliminary hearing at the
request of Ms. Sinclair and her attorney, and returned
custody of the children to Mr. Sinclair pending the hearing.
When the hearing was reconvened, the district court heard
evidence presented by the parties, rendered its opinion from
the bench, and entered a judgment for Mr. Sinclair.
003 Ms. Sinclair filed a timely notice of appeal pro se,
and the district court granted her leave to proceed in forma
pauperis. However, the district court denied Ms.
Sinclair’s motion for a transcript at government expense.
Thereafter, this court ordered that the district court
proceedings be transcribed at government expense.
004 In her brief on appeal, Ms. Sinclair contends that the
district court: (1) ignored evidence that her children
needed protection from abuse suffered in Canada; and (2)
refused to hear testimony from two key witnesses. Appellee
is also proceeding pro se and has notified the court that he
does not intend to submit a brief on appeal.
005 This court reviews the district court’s findings of
fact for clear error and its conclusions of law de novo.
See Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th
Cir.1996) (Friedrich II). Pursuant to 42 U.S.C.
1603(e)(1)(A), Mr. Sinclair had the burden of proving by a
preponderance of the evidence that the children were
wrongfully removed from Canada. See Friedrich Il, 78 F.3d
at 1064; Prevot v. Prevot, 59 F.3d 556, 560 (6th Cir.1995),
cert. denied, 116 S.Ct. 1048 (1996); Friedrich v.
Friedrich, 983 F.2d 1396, 1400 (6th Cir1993) (Friedrich I).
However, Ms. Sinclair admitted all of the elements of a
prima facie case, but asserted that an exception to the
requirement that the children be returned to Mr. Sinclair is
applicable in this case. In particular, Ms. Sinclair
argued that return of the children to Mr. Sinclair would
expose them to a grave risk of physical or psychological
harm or otherwise place them in an intolerable situation.
See Prevot, 59 F.3d at 561; Friedrich I, 983 F.2d at 1400.
Pursuant to 42 U.S.C. 11603(e)(2)(A), Ms. Sinclair had the
burden of proving by clear and convincing evidence that this
exception applies. See Prevot, 59 F.3d at 560-61,
Friedrich I, 983 F.2d at 1400 Here, the district court’s
conclusion that Ms. Sinclair did not carry her burden of
showing that return of the children to Canada would expose
them to a grave risk of harm or an intolerable situation is
supported by the record and is not clearly erroneous.
Further, Ms. Sinclair’s contention that the district court
refused to hear the testimony of two important witnesses
lacks merit. See Cooley v. Carmike Cinemas, Inc., 25 F.3d
1325, 1330 (6th Cir.1994).
006 For the foregoing reasons, the judgment of the
district court is affirmed. Rule 9(b)(3), Rules of the
Sixth Circuit.