                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

DESPINA ASVESTA,                          No. 08-15365
              Petitioner-Appellee,
               v.                           D.C. No.
                                         5:07-cv-05535-JF
GEORGE PETROUTSAS,
                                             OPINION
           Respondent-Appellant.
                                     
       Appeal from the United States District Court
          for the Northern District of California
        Jeremy D. Fogel, District Judge, Presiding

             Argued Submitted July 14, 2008
               Submitted August 28, 2009
                San Francisco, California

                 Filed September 4, 2009

       Before: Procter Hug, Jr., Richard A. Paez, and
            Marsha S. Berzon, Circuit Judges.

                  Opinion by Judge Paez




                           12361
12364             ASVESTA v. PETROUTSAS




                      COUNSEL

Carmenella Athena Roussos, Elk Grove, California, for the
respondent-appellant.
                       ASVESTA v. PETROUTSAS                     12365
Renee C. Day, Hoover & Bechtel, LLP, San Jose, California;
Stephen J. Cullen and Kelly A. Powers, Miles & Stockbridge
P.C., Towson, Maryland, for the petitioner-appellee.


                             OPINION

PAEZ, Circuit Judge:

   For four years, the minor child (“the child”) of George
Petroutsas, a dual citizen of Greece and the United States, and
Despina Asvesta, a Greek citizen, has been situated squarely
at the center of his parents’ tumultuous separation and
divorce, an event that has involved the courts of both the
United States and Greece. Twice the child has been spirited
from continent to continent—first by the mother, who kept the
child in Greece, away from the father in the United States,
after originally traveling there for a brief visit, and then by the
father, who secreted the child back to the United States during
a court-ordered supervised visit. Both parents have filed peti-
tions under the Hague Convention on the Civil Aspects of
International Child Abduction, an international agreement
governing the return of children removed, usually by one par-
ent in order to gain a custody advantage over the other parent,
from their “habitual residence.”

   A Greek court denied the first petition, filed by the father
after the mother traveled with the child from the United States
to Greece and kept the child there, determining that it was not
bound to return the child to the United States. After the father
took the child from Greece and returned to the United States,
the mother filed a Hague petition in the district court in this
case, seeking return of the child to Greece. The district court
granted the mother’s petition on the basis of comity, or defer-
ence, to the Greek court’s denial of Petroutsas’ Hague petition.1
  1
   The district court stayed enforcement of the judgment pending appeal.
12366                   ASVESTA v. PETROUTSAS
On appeal, we must determine whether the district court prop-
erly extended comity to the Greek court’s Hague order. We
conclude that it did not, reverse the district court’s order, and
remand for further proceedings.

I.       The Hague Convention

   The Hague Convention on the Civil Aspects of Interna-
tional Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 49 (the “Hague Convention” or the “Conven-
tion”), was adopted in 1980 by the Fourteenth Session of the
Hague Conference on Private International Law. The Conven-
tion’s goal is “to secure the prompt return of children wrong-
fully removed to or retained in any Contracting State; and . . .
to ensure that rights of custody and of access under the law
of one Contracting State are effectively respected in the other
Contracting States.” Hague Convention, art. 1. Both the
United States and Greece are signatories to the Convention.
U.S. Department of State, Bureau of Consular Affairs, Hague
Abduction Convention Country List, http://travel.state.gov/
family/ abduction/hague_issues/ hague_issues_1487.html (last
visited Aug. 5, 2009). The United States implemented the
Convention through the enactment of the International Child
Abduction Remedies Act (ICARA), 100 Pub. L. No. 300; 102
Stat. 437 (1988) (codified as amended at 42 U.S.C. § 11601
et seq).

   In drafting the Convention’s provisions, the Conference
attempted to address a particular type of “kidnapping” sce-
nario: one in which a person, usually a parent, removes a
child to, or retains a child in, a country that is not the child’s
habitual residence in order “to obtain a right of custody from
the authorities of the country to which the child has been
taken.” Elisa Pérez-Vera, Hague Conference on Private Inter-
national Law 428-29, ¶ 13 (1982) (hereinafter, “Pérez-Vera
Report“).2 The Convention seeks to eliminate the motivation
     2
   The explanatory report of Elisa Pérez-Vera, the official Hague Confer-
ence reporter, is “recognized by the Conference as the official history and
                        ASVESTA v. PETROUTSAS                      12367
for such actions by requiring the court of the “requested
State,” or the country to which the child has been removed,
to return a wrongfully removed or retained child to his or her
country of habitual residence, unless the removing party
establishes an exception or defense to return. Hague Conven-
tion, art. 12. Unless and until there is a determination that the
child need not be returned, “the judicial or administrative
authorities of the Contracting State to which the child has
been removed or in which it has been retained shall not decide
on the merits of rights of custody.” Id. art. 16. “[T]he Conven-
tion rests implicitly upon the principle that any debate on the
merits of the question, i.e. of custody rights, should take place
before the competent authorities in the State where the child
had its habitual residence prior to its removal . . . .” Pérez-
Vera Report at 430, ¶ 19.

  Articles 3, 12, and 13 are the main provisions that the
courts of contracting states must apply in adjudicating Hague
petitions. Article 12, in relevant part, requires that

     [w]here a child has been wrongfully removed or
     retained in terms of Article 3 and, at the date of the
     commencement of the proceedings before the judi-
     cial or administrative authority of the Contracting
     State where the child is, a period of less than one
     year has elapsed from the date of the wrongful
     removal or retention, the authority concerned shall
     order the return of the child forthwith.

Article 3, in turn, provides that a removal or retention is
“wrongful” when

commentary on the Convention and is a source of background on the
meaning of the provisions of the Convention available to all States becom-
ing parties to it.” Hague International Child Abduction Convention; Text
and Legal Analysis, 51 Fed. Reg. 10494, 10503 (Mar. 26, 1986).
12368                   ASVESTA v. PETROUTSAS
      (a) it is in breach of rights of custody attributed to a
      person . . . either jointly or alone, under the law of
      the State in which the child was habitually resident
      immediately before the removal or retention; and

      (b) at the time of removal or retention those rights
      were actually exercised, either jointly or alone, or
      would have been so exercised but for the removal or
      retention.

   In the event that a petitioning party shows that the child
was wrongfully removed or retained, Article 13 provides cer-
tain exceptions to Article 12’s mandate that the child be
returned to his or her habitual residence.3 Article 13(a) pro-
vides that the requested state is not bound to order the return
of the child when the petitioner “was not actually exercising
the custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or
retention.” Article 13(b) contains an exception to return when
“there is a grave risk that [the child’s] return would expose
the child to physical or psychological harm or otherwise place
the child in an intolerable situation.” By its terms, Article 13
does not require a court to refuse return of the child upon the
demonstration of one of the article’s defenses. Indeed, Ameri-
can courts have emphasized that “a federal court retains, and
should use when appropriate, the discretion to return a child,
despite the existence of a defense, if return would further the
aims of the Convention.” Friedrich v. Friedrich (Friedrich
II), 78 F.3d 1060, 1067 (6th Cir. 1996) (citing Feder v. Evans-
Feder, 63 F.3d 217, 226 (3d Cir. 1995)).

  Although these exceptions or defenses are available,
numerous interpretations of the Convention caution that
  3
    Article 20 also provides another exception to the return of a child, not
relevant to this case, when the return “would not be permitted by the fun-
damental principles of the requested State relating to the protection of
human rights and fundamental freedoms.”
                         ASVESTA v. PETROUTSAS                       12369
courts must narrowly interpret the exceptions lest they swal-
low the rule of return. In her report on the Convention, Pérez-
Vera observed that “a systematic invocation of the said excep-
tions, substituting the forum chosen by the abductor for that
of the child’s residence, would lead to the collapse of the
whole structure of the Convention by depriving it of the spirit
of mutual confidence which is its inspiration.” Pérez-Vera
Report at 435, ¶ 34. Expressing similar concerns, the U.S.
State Department has noted that “[i]n drafting Articles 13 and
20, the representatives of countries participating in negotia-
tions on the Convention were aware that any exceptions had
to be drawn very narrowly lest their application undermine
the express purposes of the Convention — to effect the
prompt return of abducted children.” Hague International
Child Abduction Convention; Text and Legal Analysis, 51
Fed. Reg. at 10509.

   With the framework of the Hague Convention in mind, we
turn to the events leading up to the present appeal.

II.   Factual and Procedural Background

   George Petroutsas, a Greek and American dual citizen, and
Despina Asvesta, a Greek citizen, married in Watsonville,
California on March 10, 2002. In January 2003, the couple
settled in Capitola, California. Two years later, Asvesta bore
a son (the “child”), the couple’s only child. According to
Petroutsas, the couple never lived together in Greece. None-
theless, the child, like his father, is a Greek and American
dual citizen and was raised to speak both English and Greek
fluently.

  By the end of 2005, the couple’s marriage had begun to
deteriorate due to the couple’s diverging goals for their life
together.4 Specifically, Asvesta wanted to return to Greece;
   4
     The parties dispute the existence of other factors, including infidelity
and abuse, that may have led to the failure of their marriage. These allega-
tions are, for the most part, irrelevant to this appeal. To the extent that
allegations of abuse are relevant, we take note of them as appropriate.
12370                ASVESTA v. PETROUTSAS
Petroutsas wanted to stay in the United States. A lengthy e-
mail from Petroutsas to Asvesta, dated November 2, 2005,
pleaded, “This place is where we must be right now, it makes
sense for us, I’m not asking you to like it here . . . . Let us
start making right moves together both personally and eco-
nomically, let me gradually open a chapter of my life in
Greece . . . let [the child] grow a little older.” The e-mail con-
cluded:

    If you don’t agree with the above, to go to Greece
    slowly, calmer and smarter than giving up every-
    thing and leaving, I have to ask you for a divorce,
    and we won’t be neither the first or last. Go to
    Greece with the child and we will see how I will
    come to Greece to visit him. I know you neither
    want or ask for this, but how you have brought these
    issues to me, this is how you have caused me to
    react.

   On November 8, 2005, with the written consent of Petrout-
sas, Asvesta and the child, not yet six months old, left for
Greece to visit family. Petroutsas’ consent stated, “I hereby
consent to Despina Asvesta Petroutsas to travel with our son
. . . between the following dates[:] November 8, 2005 —
December 8, 2005.”

   Petroutsas maintains that Asvesta told him on November 19
that she was not returning from Greece, a fact Asvesta denies.
In any event, on November 29, before his consent expired,
Petroutsas called Asvesta in Greece to advise her that he had
reported her to authorities in the United States for abducting
the child. The following day—while Asvesta and the child
were in Greece—Petroutsas filed a petition for dissolution of
marriage in the Superior Court of California, County of Santa
Cruz (the “California court”). Petroutsas also sought custody
of the child. After a hearing at which Asvesta’s counsel was
present, the California court granted Petroutsas temporary
custody of the child.
                       ASVESTA v. PETROUTSAS                      12371
   Asvesta alleges that while she was still in Greece, and
before her scheduled date of return from Greece, the Greek
police discovered a suitcase left by Petroutsas in Asvesta’s
family’s home containing a gun, handcuffs, leg cuffs, credit
cards, a pillow, telephone wires, and bullets. According to
Asvesta, the discovery of these items prompted her on
December 5, 2005, to file for divorce against Petrousas in the
Athens Multimember Court of First Instance (“Athens Mul-
timember Court”) and to file for temporary custody of the
child with the Athens One-Member Court of First Instance
(“Athens One-Member Court”). On December 9, 2005, the
Athens One-Member Court issued an injunction granting
Asvesta temporary custody of the child and scheduling a hear-
ing on the custody petition for January 9, 2006. That hearing
was later postponed.

   Back in California, on January 25, 2006, after proceedings
in which Asvesta was again represented by counsel, the Cali-
fornia court found that the child’s habitual residence was
Santa Cruz County, California, and concluded that it had
jurisdiction to hear the case.5 The court entered a permanent
modifiable order granting Petroutsas sole legal and physical
custody of the child and ordering Asvesta to return the child
to Petroutsas “immediately.”

                  Hague Proceedings in Greece

   On February 20, 2006, with the California custody order in
place, Petroutsas filed a Hague petition for the return of the
child to the United States with the United States Central Author-
ity.6 The petition alleged that Asvesta had wrongfully retained
  5
     Although the California court in its order used terms that ring of a
Hague Convention proceeding, Petroutsas did not seek relief from the Cal-
ifornia court pursuant to the Hague Convention or ICARA.
   6
     The Hague Convention requires each contracting state to designate a
“Central Authority” to “coordinate and ‘channel’ ” the cooperation among
contracting states that the Convention envisions. Pérez-Vera Report at
12372                    ASVESTA v. PETROUTSAS
the child in Greece in violation of Petroutsas’ custody rights.
The United States Central Authority transferred Petroutsas’
petition to Greece’s Central Authority. Although the record
does not detail how Greece’s Central Authority handled the
petition, it was eventually filed with the Piraeus One-Member
Court of First Instance (the “Greek Hague court”). The Ath-
ens Multimember court, where Asvesta filed her custody pro-
ceeding, stayed that matter pending resolution of the Hague
petition pursuant to Article 16 of the Convention.

   On March 23, 2006, the Greek Hague court held a hearing
on Petroutsas’ petition. Both parties voluntarily appeared.
According to Asvesta, the parties had notice of the hearing,
were represented by counsel, and were provided with the
opportunity to be heard and participate fully through counsel.
Petroutsas, on the other hand, alleges that, although a non-
lawyer representative of the Greek Ministry of Justice
appeared to pursue Petroutsas’ petition on his behalf, neither
Petroutsas nor his personal lawyer were permitted to speak or
testify. Petroutsas argues that the appointed representative
was not familiar with the facts of the case and did not ade-
quately represent his interests at the hearing.

   The following day, on March 24, 2006, the Greek court
issued an order dismissing Petroutsas’ petition for the return
of the child, concluding that it was “not bound to order the
minor’s return to the USA.”7 App. at 58. The Greek court
found the following pertinent facts:

437, ¶ 42; see also Hague Convention, art. 6. “The Central Authority of
the State where [a wrongfully removed or retained] child is shall take . . .
all appropriate measures in order to obtain the voluntary return of the
child.” Id. art. 10. If a Central Authority receives a petition concerning a
child not located in that country, “it shall directly and without delay trans-
mit the application to the Central Authority of that Contracting State
[where the child is located] and inform that Contracting State and inform
the requesting Central Authority or the applicant.” Id. art. 9.
   7
     An official translation of the Greek court’s ruling is attached as an
appendix to this opinion.
                ASVESTA v. PETROUTSAS                 12373
•   Petroutsas had assured Asvesta that their “stay in
    the USA was temporary and that soon they would
    go back to Greece for permanent settlement.”

•   Asvesta had to obtain supplemental employment
    because Petroutsas’ job as a real estate broker
    “yielded a very low income which was not
    enough to deal with his and the respondent’s live-
    lihood needs.”

•   Since 2004, Petroutsas had “bec[o]me violent
    towards the respondent, making scenes, . . . talk-
    ing bad to her, . . . swearing at her and insulting
    her before third parties, and was inexcusably
    absent from their house.”

•   After the birth of the child, Petroutsas “was indif-
    ferent to his conjugal and family obligations and
    was making bad scenes before the eyes of the
    minor.”

•   The couple had no “mental communication and
    physical contact” starting in September 2005 and
    communicated via e-mail because Petroutsas
    refused to talk to Asvesta.

•   Petroutsas had made particular demands regard-
    ing any move he would make to Greece, and told
    Asvesta that if she did not agree, he would be
    forced to ask for a divorce.

•   Petroutsas “suggested” to Asvesta that she “go to
    Greece together with their minor child and that
    he would go there to see” the child.

•   Petroutsas consented to Asvesta’s departure with
    the child on November 8, 2005, and gave Asvesta
    “permission to travel together with their son dur-
12374               ASVESTA v. PETROUTSAS
        ing the period of time from 8 November, 2005 to
        8 December, 2005” and that Asvesta had
        arranged to return to the United States with her
        child and her parents for the Christmas holidays.

    •   Petroutsas reported Asvesta to the authorities on
        November 29, 2005, and threatened Asvesta that
        she would go to jail and never see the child again.

    •   Petroutsas had been unfaithful to Asvesta since
        December 2004.

App. at 54-56.

   The Greek court concluded that the child had not been “il-
legal[ly]” removed to and retained in Greece by his mother
because (1) “Petroutsas . . . consented . . . to his move and
stay in Greece, giving for this purpose to [Asvesta] a related
written permission and suggesting to her to stay in Greece
together with the minor;” (2) “Petroutsas was not virtually
exercising the right of custody of the person of the minor at
the time of his move, since . . . he was indifferent to his fam-
ily obligations, he was not engaged in the minor’s care and
was indifferent to his pyschosomatic [sic] development;” and
(3) there was

    a severe danger that the minor’s return to the USA
    to [sic] expose him to mental tribulation, since he
    will be deprived of his mother’s presence, affection,
    love and care at the delicate age of 12 months, he
    will be deprived of the security and stability that he
    feels near his mother and his mental bond with her
    will be broken.

App. at 57-58.

  Petroutsas did not appeal this ruling because, he alleges, the
appointed representative from the Greek Ministry of Justice
                        ASVESTA v. PETROUTSAS                       12375
failed to do so. As a result, the Greek court’s factual findings
remain unchallenged. Petroutsas, however, did file a “cassa-
tion appeal.” According to the district court testimony of
Grigoriou Stilianos, Petroutsas’ Greek legal advisor, a cassa-
tion appeal is a limited procedural challenge that allows a
party to appeal only the legal conclusions of the lower court.8

   After the Greek Hague court denied Petroutsas’ petition, he
filed a petition in the Athens Multimember Court custody
case seeking visitation with the child in Greece. While this
petition and Asvesta’s original custody petition were pending,
the parties, through counsel, entered into a voluntary settle-
ment agreement establishing a schedule pursuant to which
Petroutsas could visit the child in Greece. Petroutsas also filed
a petition in the Piraeus One-Member Court of the First Instance9
seeking recognition of the California court’s original January
25, 2006, order that granted him temporary custody of the
child. On March 13, 2007, the court declined to do so, and its
order was affirmed by the Piraeus Court of Appeal.

  On April 23, 2007, the Athens One-Member Court finally
held a hearing to consider Asvesta’s original petition for cus-
tody of the child and Petroutsas’ petition for visitation rights.
The court awarded temporary custody to Asvesta and granted
Petroutsas supervised visitation in Greece. A month later,
however, the California court modified its prior order, granted
  8
     The cassation appeal is apparently still pending. One member of the
Greek Supreme Court, however, issued an opinion on whether to accept
the appeal. That opinion stated that the Greek court that ruled on the
Hague petition had erred as a matter of law because it did not follow the
procedural rules of evidence at the Hague hearing. Stilianos testified that
the Greek Supreme Court would likely overturn the Greek Hague court’s
order and remand for a new hearing and that the court would likely issue
a decision in the cassation appeal by April 2008.
   9
     Although Petroutsas’ Hague petition was filed in the Piraeus One-
Member Court of First Instance, this proceeding, it appears, was com-
pletely separate from the Greek Hague proceeding; two different judges
presided over the two matters.
12376                ASVESTA v. PETROUTSAS
temporary sole custody of the child to Petroutsas, and ordered
the parties to mediate their custody and visitation dispute in
Greece.

   In July 2007, during supervised visitation with his son,
Petroutsas took the child, fled from Greece to Canada and
then returned to California where, as far as the record reflects,
the child remains to this day. Petroutsas asserts that he took
the child from Greece under the authority of the California
court order that granted him sole legal and physical custody
of the child. Asvesta, on the other hand, viewed Petroutsas’
action as an abduction, reported the abduction to the Greek
police, filed charges with the Greek police against Petroutsas
for kidnapping, and filed a petition for the return of the child
to Greece under the Hague Convention in the U.S. District
Court for the Northern District of California.

           Hague Proceedings in the United States

   Asvesta filed her Hague petition on October 31, 2007,
asserting that Petroutsas had abducted the child from Greece,
the child’s habitual residence. The court issued an order to
show cause for Petroutsas to appear on November 16, 2007,
with the child; Petroutsas did not appear. After the court
issued a warrant for Petroutsas’ arrest and placed the child in
the national database for missing persons, Petroutsas appeared
with counsel and the child for a show cause hearing. Follow-
ing an evidentiary hearing and after encouraging the parties to
reach a voluntary settlement agreement, the district court
orally granted Asvesta’s petition.

    In so ruling, the court determined that the initial question
it faced was “simply, whether it should or shouldn’t recognize
and accord comity to the Hague order entered by the courts
of Greece.” The court, in its brief discussion of whether the
“Greek court faithfully applied the Hague convention,”
observed that “the Hague order entered in Greece could be
                        ASVESTA v. PETROUTSAS                       12377
criticized as giving undue weight to matters that are not prop-
erly considered under the Hague convention.”

   Nonetheless, the court stated that “[i]f all this court had
before it were the Hague order from Greece and if [Petrout-
sas] had faithfully carried out his responsibilities as a litigant
with respect to that and other orders, I think this would be a
much harder case as a legal matter than it actually is.” The
court was “compell[ed]” by Petroutsas’ failure to comply with
both the Greek Hague Convention order and the California
court’s order to mediate custody and visitation issues in
Greece, describing the circumstances as “simply a situation
where the two countries or the two courts that have exercised
jurisdiction over this child both made orders, both which have
been violated by Mr. Petroutsas.” The court concluded that
“under both circumstances [it had] no legal choice other than
to grant the petition.”

  On January 17, 2008, the district court ordered that the
child be returned to Greece, “the minor child’s habitual resi-
dence,” but simultaneously ordered a stay of the child’s return
pending appeal.

III.   Discussion

   Given the district court’s limited ruling, our sole inquiry is
whether the district court properly extended comity to the
Greek court’s denial of Petroutsas’ Hague Convention petition.10
In implementing the Hague Convention through enactment of
ICARA, Congress recognized “the need for uniform interna-
tional interpretation of the Convention,” 42 U.S.C. § 11601;
we therefore approach our task with a view to the decisions
  10
     Petroutsas also argues that the district court improperly granted
Asvesta’s petition on the basis of Petroutsas’ violation of the California
court order requiring the parties to mediate in Greece. Although Petroutsas
characterized this argument as a separate issue from the question of com-
ity, we consider it in the context of our comity analysis.
12378                ASVESTA v. PETROUTSAS
of other authoritative state and federal courts, and courts of
other contracting nations. See Gonzalez v. Gutierrez, 311 F.3d
942, 952 (9th Cir. 2002) (“one of the purposes of the Conven-
tion is to create a uniform body of international law among
foreign courts”); Mozes v. Mozes, 239 F.3d 1067, 1072 (9th
Cir. 2001) (“To achieve the uniformity of application across
countries, upon which depends the realization of the Conven-
tion’s goals, courts must be able to reconcile their decisions
with those reached by other courts in similar situations.”).

   Although we have not specifically addressed the standard
of review applicable to our review of the district court’s
extension of comity to a foreign court’s Hague decision, our
case law suggests that we review for abuse of discretion. See
Stock West Corp. v. Taylor, 964 F.2d 912, 917-18 (9th Cir.
1992) (reviewing for abuse of discretion the district court’s
extension of comity to a tribal court in declining jurisdiction);
Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1140 (9th
Cir. 2001) (adopting a de novo standard of review, rather than
abuse of discretion review, in declining to enforce a tribal
court judgment because even though “the decision to recog-
nize a foreign judgment is discretionary,” the particular issue
in that case underlying the extension of comity involved a
question of law).

   The Second Circuit in Diorinou v. Mezitis, 237 F.3d 133,
138-39 (2d Cir. 2001), however, suggested that the context in
which comity is extended or denied determines the standard
of review. There, the court noted that a district court’s appli-
cation of principles of comity in deciding whether (1) to
abstain from hearing a case in favor of a foreign proceeding
or (2) to enforce a foreign judgment should be reviewed for
abuse of discretion, as our own cases suggest. Id. at 130. It
held, however, that it would review de novo the district
court’s application of the doctrine of comity in that case
because the district court had applied the doctrine in “con-
sider[ing] whether to accept the adjudication of a foreign tri-
bunal on a cause of action or a particular issue . . . .” Id. at
                         ASVESTA v. PETROUTSAS                        12379
139. Although it is not clear from the district court’s order
here, it appears that in extending comity to the Greek court’s
decision, the district court determined that the Greek court’s
adjudication of a particular issue or issues in Petroutsas’ peti-
tion was binding on issues that were dispositive of Asvesta’s
petition.11 Diorinou therefore suggests that we review de novo
the district court’s decision to extend comity to the Greek
court’s denial of Petroutsas’ petition.

   Although we believe that the uncertainty of our standard
review is worth noting, we need not decide here whether to
review the district court’s determination de novo or for an
abuse of discretion. Under either standard of review, we con-
clude that the district court should not have extended comity
to the Greek court’s Hague decision.

   Petroutsas asserts that the district court improperly
extended comity to the Greek court’s earlier Hague Conven-
tion determination. He argues that the Greek court’s ruling is
not worthy of comity because it improperly focused on mat-
ters relevant to the merits of a custody determination and
made findings plainly unsupported or contradicted by the evi-
dence.12 We agree with Petroutsas. The Greek court’s analysis
   11
      We conclude that the district court employed the doctrine of comity
in this fashion because it is clear that it was not invoking comity to abstain
from adjudicating Asvesta’s Hague petition or to enforce the Greek court’s
denial of Petroutsas’ petition. Further, the district court could not have
properly determined that the Greek court’s adjudication of Petroutsas’
cause of action under the Hague Convention was directly binding on its
own consideration of Asvesta’s separate cause of action. In denying
Petroutsas’ petition, the Greek court considered whether Asvesta’s reten-
tion of the child in Greece, rather than Petroutsas’ subsequent removal of
the child to the United States, constituted wrongful removal or retention.
The district court, therefore, could only properly determine that the Greek
court’s rulings on certain issues, such as its Article 3 determination, were
binding on certain issues in Asvesta’s petition.
   12
      In support of his appeal, Petroutsas requests that we take judicial
notice of the U.S. State Department’s “Report on Compliance with the
Hague Convention on the Civil Aspects of International Child Abduction”
(2007). Because it was filed with the district court, the request for judicial
notice is unnecessary, and we therefore deny the request.
12380                   ASVESTA v. PETROUTSAS
of the merits of Petroutsas’ Hague petition misapplies the pro-
visions of the Convention, relies on unreasonable factual find-
ings, and contradicts the principles and objectives of the
Hague Convention. We therefore hold that the district court
improperly extended comity to the Greek court’s Hague deci-
sion, reverse the judgment, and remand with directions to the
district court to conduct its own Hague convention analysis.13

  A.     International Comity and the Hague Convention

   The district court granted Asvesta’s Hague petition and
ordered the child returned to Greece after extending “comity”
to the Greek court’s 2006 Hague Convention decision.

   [1] “The extent to which the United States, or any state,
honors the judicial decrees of foreign nations is a matter of
choice, governed by ‘the comity of nations.’ ” Wilson v. Mar-
chington, 127 F.3d 805, 808 (9th Cir. 1997) (quoting Hilton
v. Guyot, 159 U.S. 113, 163 (1895)). “Comity is ‘the recogni-
tion which one nation allows within its territory to the legisla-
tive, executive or judicial acts of another nation.’ ”
Dependable Highway Express, Inc. v. Navigators Ins. Co.,
498 F.3d 1059, 1067 (9th Cir. 2007) (quoting Hilton, 159
U.S. at 164). Extension of comity to a foreign judgment is
“neither a matter of absolute obligation, on the one hand, nor
of mere courtesy and good will, upon the other.” Id. (internal
quotation omitted).

  As this court recognized in Marchington, “Hilton [v.
Guyot] provides the guiding principles of comity[:]”

       [W]here there has been opportunity for a full and fair
       trial abroad before a court of competent jurisdiction,
  13
    We therefore need not address Petroutsas’ additional argument that
the district court also erred in extending comity to the Greek court’s order
because the Greek court allegedly denied Petroutsas his right to procedural
due process.
                    ASVESTA v. PETROUTSAS                12381
    conducting the trial upon regular proceedings, after
    due citation or voluntary appearance of the defen-
    dant, and under a system of jurisprudence likely to
    secure an impartial administration of justice between
    the citizens of its own country and those of other
    countries, and there is nothing to show either preju-
    dice in the court, or in the system of laws under
    which it was sitting, or fraud in procuring the judg-
    ment, or any other special reason why the comity of
    this nation should not allow it full effect, the merits
    of the case should not, in an action brought in this
    country upon the judgment, be tried afresh, as on a
    new trial or an appeal, upon the mere assertion of the
    party that the judgment was erroneous in law or in
    fact.

Hilton, 159 U.S. at 202-03; see also Marchington, 127 F.3d
at 810 & n.4.

   [2] The few United States courts that have addressed the
extension of comity to Hague Convention orders of foreign
courts “have observed that comity ‘is at the heart of the
Hague Convention.’ ” Diorinou, 237 F.3d at 142 (quoting
Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 1999)). The
Second Circuit has noted that, where comity is at issue, a
court properly begins its analysis “with an inclination to
accord deference to” a foreign court’s adjudication of a
related Hague petition. Diorinou, 237 F.3d at 145. We agree.
Such an approach is consistent with the Convention drafters’
primary concern “with securing international cooperation
regarding the return of children wrongfully taken by a parent
from one country to another.” Gonzalez, 311 F.3d at 944.
Diorinou’s approach is also consistent with the relatively nar-
row grounds, set forth in Hilton, upon which courts may rely
in withholding comity.

   [3] We recognize that Hilton cautions that “[t]he merits of
[a foreign judgment] should not, in an action brought in this
12382                ASVESTA v. PETROUTSAS
country upon the judgment, be tried afresh.” 159 U.S. at
202-03. However, the two federal courts of appeal that have
considered whether to extend comity to foreign Hague Con-
vention judgments—the Second Circuit in Diorinou and the
Third Circuit in Carrascosa v. McGuire, 520 F.3d 249 (3d
Cir. 2008)—both looked closely at the merits of the foreign
court’s decision in determining whether comity could prop-
erly be extended to its judgment.

   In Diorinou, the Second Circuit observed that “[a]lthough
deference as a matter of comity often entails consideration of
the fairness of a foreign adjudicating system . . ., a case-
specific inquiry is sometimes appropriate.” 237 F.3d at 143.
In doing so, it cited Hilton’s statement that comity may be
withheld if “other special reason[s]” exist. Id. (quoting 149
U.S. at 202). Diorinou also cited commentary in the Restate-
ment of Foreign Relations that states generally that “[a] par-
ticular case may disclose such defects as to make the
particular judgment not entitled to recognition.” Id. (quoting
Restatement (Third) of Foreign Relations § 428 cmt. b
(1987)) (internal quotation marks omitted).

   Diorinou draws upon these “other” categories in Hilton and
the Restatement of Foreign Relations to justify its analysis of
the merits of a Greek court’s adjudication of a Hague petition
filed by a father, Mezitis, seeking the return of his two dual-
citizen children to the United States from Greece, where they
had been retained by their mother, Diorinou. The Greek court
had rejected Mezitis’ petition, concluding that (1) Diorinou
had not wrongfully retained the children in Greece because,
the Second Circuit surmised, Mezitis was not exercising “ac-
tual care” of the children within the meaning of Article 3 of
the Convention at the time of the retention; (2) Mezitis con-
sented to Diorinou’s retention of the children in Greece and
therefore the court, pursuant to Article 13(a) of the Conven-
tion, was not obligated to return the child to the United States;
and (3) the children’s return to the United States would
expose them to a grave risk of harm and, therefore, the court
                    ASVESTA v. PETROUTSAS                 12383
was not obligated to return the children under Article 13(b) of
the Convention. 237 F.3d at 133.

   As in this case, some time after the Greek court denied the
petition, the father took the children to the United States. The
mother then filed a petition in a United States district court
under the Convention for return of the children to Greece. Id.
at 136. In granting the mother’s petition, the district court
extended comity to the Greek court’s determination that the
mother had not wrongfully retained the children in Greece,
and in light of that determination, concluded that the chil-
dren’s habitual residence was Greece. Id. at 142 (noting that
a country may not be a child’s habitual residence if, under the
Convention, the child had been wrongfully removed to or
retained in that country).

   The Second Circuit affirmed the district court’s extension
of comity, but only after emphasizing its misgivings with cer-
tain aspects of the Greek court’s decision. Id. at 147. Specifi-
cally, the court was concerned with the Greek court’s finding
that the father consented to the children’s stay in Greece when
the father had initiated a custody proceeding in New York
only a week after leaving a family vacation as a result of mar-
ital problems. Id. at 136, 145. The court also expressed doubt
about the Greek court’s finding that the children would face
a grave risk of harm if returned to the United States, observ-
ing that the Greek court’s application of Article 13(b)’s grave
risk exception was in tension with the Hague Conference’s
intent that exceptions to return be drawn narrowly. Id.

   Despite these concerns, the court extended comity to the
Greek court’s judgment. Significantly, after reviewing the
record before the Greek court, the Second Circuit determined
that the Greek court’s finding that the mother had not wrong-
fully retained the children in Greece was “entirely support-
able,” because it was clear that the father was not exercising
his custodial rights at the time of the retention. See id. The
Greek court’s dubious determinations regarding Article 13
12384                ASVESTA v. PETROUTSAS
exceptions to return were therefore immaterial to the outcome
of the case.

   The Third Circuit in Carrascosa, on the other hand,
declined to extend comity to a Spanish court’s Hague order.
520 F.3d at 263. In so doing, the court, like the Second Circuit
in Diorinou, examined the merits of the Spanish court’s anal-
ysis under the Convention. In this case, a mother had taken
her child to Spain in violation of a parenting agreement
between her and the child’s father that forbade either parent
to take the child out of the country without the other’s con-
sent. Id. at 256. When the father filed a Hague petition in
Spain for the child’s return, a Spanish court determined that
the parenting agreement implicitly assigned full custody of
the child to the mother. Id. at 257. On the basis of this finding,
the Spanish court denied the petition, apparently concluding
that the parenting agreement barred the father from establish-
ing that he had custodial rights over the child, an element nec-
essary to a showing of wrongful removal under Article 3. See
id. at 258. A New Jersey court, however, ordered the mother
to return the child and eventually held her in contempt and
jailed her for failing to comply with the order. The mother
petitioned for a writ of habeas corpus in the district court,
arguing that the district court should extend comity to the
Spanish court’s determination that her removal of the child to
Spain was not wrongful and rule that she was not required to
comply with the U.S. court’s order to return the child. Id. at
251.

   The district court rejected this argument. The Third Circuit
affirmed the district court and its reasoning that the Spanish
court “ignored the mandates of the Hague Convention by
impermissibly making custody determinations and failing to
address and apply New Jersey law,” even though it was undis-
puted that the child’s habitual residence was New Jersey. Id.
at 258, 260. The Third Circuit, refusing to extend comity to
the Spanish court, concluded that the Spanish court’s decision
“departed from the fundamental premise of the Hague Con-
                    ASVESTA v. PETROUTSAS                 12385
vention and violated principles of international comity by not
applying New Jersey law.” Id. at 263.

   The Ontario Court of Appeal in Pitts v. De Silva, 2008
ON.C. LEXIS 34 (Jan. 10, 2008), adopted an approach similar
to that of Diorinou and Carrascosa in determining whether it
should accord deference to the Tenth Circuit’s affirmance of
a district court’s Hague Convention judgment that refused
under Article 13 to return a child to Canada. The Ontario
court observed that “[t]he combination of comity, on the one
hand, and of the need to preserve the Hague Convention’s
effectiveness, on the other, calls for courts to avoid interfer-
ing, as much as possible, with foreign interpretations of the
Convention.” 2008 ON.C. Lexis 34 at *24. Nonetheless, the
court determined that in some instances, deference could be
properly withheld if the foreign decision “evinces a clear mis-
interpretation of the Hague Convention or fails to meet a
minimum standard of reasonableness.” Id. As in Diorinou and
Carrascosa, the Ontario Court of Appeals considered whether
the district court, which the Tenth Circuit had affirmed, con-
ducted a proper analysis under Article 13. Id. at 27. Conclud-
ing that it had, the Ontario court extended deference to the
Tenth Circuit’s decision. Id. at 28.

   [4] We agree that, in the context of the Hague Convention,
a court’s decision to extend comity to a foreign judgment may
be guided by a more searching inquiry into the propriety of
the foreign court’s application of the Convention, in addition
to the considerations of due process and fairness outlined spe-
cifically in Hilton. Generally, the issue of comity arises when
a foreign court has entered a judgment after applying its own
substantive and procedural laws, see, e.g., Hilton, 159 U.S. at
114-20; in these cases, Hilton’s admonition to avoid a re-
examination of the merits of a foreign court’s judgment seems
most relevant. Here, however, we consider whether the dis-
trict court properly extended comity to a foreign court that
applied the Hague Convention—a legal framework agreed
upon and implemented by all contracting nations. In this con-
12386                ASVESTA v. PETROUTSAS
text, we are in a better position to examine the merits of a for-
eign court’s Hague decision in deciding whether that decision
warrants deference. Although we recognize that our careful
examination of the merits of another contracting nation’s
Hague adjudication could, in some circumstances, undermine
the mutual trust necessary for the Convention’s continued
success, we also recognize that its success relies upon the
faithful application of its provisions by American courts and
the courts of other contracting nations. For this reason, we fol-
low the path charted by Diorinou, Carrascosa, and Pitts and
conclude that we may properly decline to extend comity to the
Greek court’s determination if it clearly misinterprets the
Hague Convention, contravenes the Convention’s fundamen-
tal premises or objectives, or fails to meet a minimum stan-
dard of reasonableness.

  B.    The District Court’s Consideration of Petroutsas’
        Failure to Comply with the California and Greek
        Court Orders

   Before applying these principles to the Greek court’s
Hague determination, we first address Petroutsas’ argument
that the district court committed reversible error by granting
Asvesta’s petition, at least in part, on the basis of Petroutsas’
failure to comply with two orders: the California state court’s
order to mediate custody and visitation issues in Greece and
the Greek court’s Hague order. Petroutsas argues that his
compliance with these orders was irrelevant to the district
court’s Hague Convention inquiry.

   We agree that the district court did rely to a considerable
extent on Petroutsas’ failure to comply with the California
and Greek court orders in granting Asvesta’s petition. The
court specifically noted that Petroutsas had violated the Cali-
fornia court’s order by failing to mediate custody and visita-
tion issues in Greece, and had “ultimately treated [the Greek
court’s Hague order] as if it didn’t exist.” by bringing the
                         ASVESTA v. PETROUTSAS                        12387
child back to the United States in 2006.14 The court opined
that it would be a “much harder case as a legal matter” if
Petroutsas had complied with these orders.

   [5] We understand the district court’s concern with Petrout-
sas’ failure to abide by the various court orders in light of the
contentious dispute between Petroutsas and Asvesta and the
tactics both parties employed in battling for the custody of
their son. However, we agree with Petroutsas that, in the con-
text of this case, the parties’ conduct was not the proper focus
of the court’s inquiry. Rather, the question before the court
was whether it should extend comity to the Greek court’s
decision—an inquiry that properly focuses on the process and
judgment of the foreign court. See Hilton, 159 U.S. at 202-03.

   [6] The district court, however, explicitly acknowledged
that the question of comity was the only question before it.
We therefore view the court’s references to Petroutsas’
actions in its oral ruling as part of its comity analysis—not as
a separate basis for granting the petition—and decline to
reverse the district court solely on the basis of its consider-
ation of Petroutsas’ conduct. Rather, we turn to the merits of
the district court’s overall comity analysis, unencumbered by
any consideration of Petroutsas’ actions.
  14
    We do not reach the question of whether the district court correctly
found that Petroutsas did, in fact, violate the California state court’s medi-
ation order and the Greek court’s Hague ruling. The court’s concern with
Petroutsas’ compliance with the Hague order seems unwarranted. The
Greek court simply denied Petroutsas’ Hague petition and refused to order
the return of the child to the United States; it did not grant custody to
Asvesta or forbid the child to be taken back to the United States. Rather,
by denying the petition, it allowed the Greek courts to resolve Asvesta’s
and Petroutsas’ underlying custody dispute. See Hague Convention, art.
16. As a result, Petroutsas’ actions in bringing the child back to the United
States would not have violated the Greek Hague order; if anything, he may
have violated the Athens One-Member Court order that granted him only
supervised visitation with the child.
12388                   ASVESTA v. PETROUTSAS
  C.    The Greek Court’s Hague Determination

   The district court properly extended comity to the Greek
court’s decision unless, as discussed above, that decision
clearly misinterpreted the Hague Convention, departed from
the Convention’s fundamental premises, or failed to meet a
minimum standard of reasonableness.

   As noted in our discussion of the standard of review above,
we assume that the district court determined that comity
required it to accept the Greek court’s resolution of certain
issues in Petroutsas’ petition as binding on its own resolution
of Asvesta’s petition. Although it is not clear from the district
court’s ruling, the briefing of the parties, both before the dis-
trict court and before us,15 suggests that the district court
determined that principles of comity required it to find that
the child’s habitual residence was Greece and that Petroutsas
therefore had removed the child in violation of the custody
rights that the Greek courts had granted to Asvesta. The dis-
trict court, however, did not identify the specific Greek court
rulings to which it extended comity and upon which it relied
in ruling that Greece was the child’s habitual residence.16 The
Greek court, though, denied Petroutsas’ petition on the basis
of several grounds: (1) the mother’s removal and retention of
  15
      Before the district court, Petroutsas argued that Asvesta could not
claim that Greece was the child’s habitual residence because the child’s
presence there resulted from Asvesta’s wrongful retention. Asvesta, for
her part, argued that the Greek court had already determined that Asvesta
had not wrongfully retained the child in Greece, and that the district court
should grant comity to that determination.
   16
      The one issue that both the district court and the Greek court had to
resolve in adjudicating Asvesta’s and Petroutsas’ petitions, respectively,
was the child’s habitual residence. Had the Greek court made a habitual
residence determination and concluded that it was Greece, the basis for the
district court’s habitual residence determination would be more apparent
from the record. As we discuss below, however, the Greek court’s deci-
sion does not mention, let alone address, which country was the child’s
habitual residence.
                    ASVESTA v. PETROUTSAS                 12389
the child in Greece was not “illegal;” (2) Petroutsas consented
to the child’s move to and stay in Greece, (3) Petroutsas was
not exercising his right of custody of the child at the time of
the removal; and (4) the child’s separation from Asvesta if
returned to the United States would pose a grave risk of harm
to the child. Because the particular ground or grounds upon
which the district court relied are not clear, we consider each
ground relied upon by the Greek court, as well as the Greek
court’s decision as a whole, in order to determine whether the
district court’s extension of comity was proper.

    1.   The Greek Court’s Overall Hague Convention
         Analysis

   We begin by observing that the overall structure and focus
of the Greek court’s analysis deviates from the approach set
forth in the Convention. First, the Convention is clear that a
court considering a Hague petition should not consider mat-
ters relevant to the merits of the underlying custody dispute
such as the best interests of the child, as these considerations
are reserved for the courts of the child’s habitual residence.
See Pérez-Vera Report, at 430, ¶ 19. The Convention instead
requires courts to perform more objective inquiries, such as
the determination of the child’s habitual residence and
whether the child was wrongfully removed or retained.

   Here, the Greek court strayed from the objective inquiries
prescribed by the Convention and focused on matters largely
irrelevant to its ultimate decision. Much, if not most, of the
court’s factual findings center on the breakdown of the cou-
ple’s relationship and Petroutsas’ treatment of Asvesta,
including his alleged infidelity, failure to be the sole bread-
winner for the family, and refusal to speak to Asvesta in the
last months of their marriage. See App. at 54-56. The Greek
court noted several incidents between Asvesta and Petroutsas
in which the child may have been involved, including situa-
tions in which Petroutsas made “bad scenes before the eyes of
the minor” and threatened Asvesta that she would never see
12390                    ASVESTA v. PETROUTSAS
the child again. App. at 55, 56. Although these incidents could
be relevant to the Greek court’s analysis of the grave risk
exception under Article 13 of the Convention, the court’s
vague factual findings do not indicate how the child, not yet
a year old at the time, would have been affected by the inci-
dents. While Asvesta may have experienced trying circum-
stances in her marriage to Petroutsas, these circumstances are
not the proper focus of a Hague Convention inquiry.

   Further, the Greek court’s analysis is largely untethered
from the relatively structured inquiry required by the Hague
Convention. Although the court determined, in a conclusory
fashion, that Asvesta’s removal of the child to Greece was not
“illegal,” it is unclear whether this constituted a determination
under Article 3 that the removal or retention was not wrong-
ful, or whether the Greek court skipped the Article 3 determi-
nation and relied solely on Article 13 exceptions to return to
justify its denial of Petroutsas’ petition. The Greek court’s
finding that Petroutsas failed to exercise his custodial rights
at the time of removal was the only element of the Article 3
inquiry that the court addressed in its decision. That determi-
nation, however, could have served either as a basis for find-
ing that Asvesta’s removal of the child was not wrongful
under Article 3(b) or as an exception to return under Article
13(a).17

   While we understand that our concerns with the clarity of
the Greek court’s analysis may result from translation errors
or differences between Greek and American analytical styles,
  17
     For the purposes of our analysis, we give the Greek court the benefit
of the doubt by assuming that it conducted an Article 3 inquiry and deter-
mined that Asvesta’s actions were not wrongful because Petroutsas was
not exercising his custodial rights at the time of the removal and retention.
To do otherwise would assume that the Greek court completely over-
looked Article 3, which “as a whole constitutes one of the key provisions
of the Convention, since the setting in motion of the Convention’s
machinery for the return of the child depends upon its application.” Pérez-
Vera Report at 444, ¶ 64.
                     ASVESTA v. PETROUTSAS                 12391
we believe our concerns are warranted in light of the Hague
Convention’s straightforward analytical framework and its
clear focus on objective inquiries such as the determination of
wrongful removal under Article 3. The overall lack of clarity
and improper focus of the Greek court’s ruling provides a dis-
turbing backdrop to each of the various grounds the Greek
court ultimately relied upon to deny Petroutsas’ petition.

    2.    Article 3: Wrongful Retention

   [7] As discussed above, we assume that the Greek court
denied Petroutsas’ petition because, in part, he failed to show
that he was exercising his custodial rights to the child at the
time of removal and therefore could not establish that Asvesta
had wrongfully retained the child in Greece. Article 3 of the
Convention provides that a petitioning party can demonstrate
wrongful retention only when the retention of the child is in
breach of the petitioning party’s custodial rights under the law
of the child’s habitual residence and, at the time of retention,
the petitioning party was exercising those rights. Here, the
Greek court’s Article 3 ruling was marked by serious defects,
principally, its failure to make the underlying determination
of the child’s habitual residence, and also its legally erroneous
and factually unsupported finding that Petroutsas failed to
exercise his custody rights.

   First, the Greek court completely failed to determine the
child’s habitual residence in its Hague Convention analysis,
even though the resolution of this issue is central to a court’s
Article 3 inquiry and is perhaps the most important inquiry
under the Convention. Asvesta’s arguments that the Greek
Hague court did make such a determination are without foun-
dation. Although the Greek court made factual findings that
may have been relevant to a habitual residence determination,
the Greek court never concluded that Greece, rather than the
United States, was the child’s habitual residence; in fact, it
never mentioned the term “habitual residence” in its analysis.
Notably, had the Greek court determined that Greece was the
12392                ASVESTA v. PETROUTSAS
child’s habitual residence, such a determination would have
obviated the need to make an Article 3 determination, as the
Convention would not have required the court to return the
child to California if it was not the child’s habitual residence.

   The Greek court’s failure to determine the child’s habitual
residence greatly undermines its wrongful retention analysis.
In Mozes, we emphasized that “ ‘[h]abitual residence’ is the
central—often outcome-determinative—concept on which the
entire system is founded.” See 239 F.3d at 1072. The identifi-
cation of the child’s habitual residence is crucial to a Hague
inquiry because “[t]he relevant custody rights are those recog-
nized by the State of habitual residence, and it is the State of
habitual residence to which the child should be returned and
where the ultimate merits of the custody fight are to be decid-
ed.” Linda Silberman, Hague Convention on International
Child Abduction: A Brief Overview and Case Law Analysis,
28 Fam. L. Q. 9, 20 (1994).

   [8] In particular, the habitual residence determination is
central to a court’s wrongful removal inquiry under Article 3,
because the law of the habitual residence is used to determine
whether the petitioning party has custody rights to the child,
whether those rights have been violated by the removal or
retention of the child, and arguably, whether those rights were
sufficiently “exercised” by the petitioning party at the time of
the removal. See Friedrich II, 78 F.3d at 1065 (noting that
“American courts are not well suited to determine the conse-
quences of parental behavior under the law of a foreign coun-
try” and observing the difficulty of “the task of deciding, prior
to a ruling by a court in the abducted-from country, if a par-
ent’s custody rights should be ignored because he or she was
not acting sufficiently like a custodial parent”).

  [9] The Greek court’s failure to make a habitual residence
determination consequently casts doubt on its entire Article 3
determination. Without knowing whether the habitual resi-
dence of the child was the United States or Greece, the court
                     ASVESTA v. PETROUTSAS                 12393
could not have known the appropriate law to apply in deter-
mining whether Petroutsas had custodial rights to the child,
whether he was exercising those rights, or whether Asvesta
had violated his rights by removing and retaining the child in
Greece.

   In addition to the Greek court’s failure to address the key
question of habitual residence, its stated basis for determining
that Asvesta’s actions were not wrongful under Article 3 was
its finding that Petroutsas was, at the time of the removal, “in-
different to his family obligations, . . . not engaged in the
minor’s care, and was indifferent to his psychosomatic [sic]
development.” App. at 58. We have difficulty, however, in
discerning the evidentiary basis for this finding. Other than
the court’s finding that Petroutsas “was making bad scenes
before the eyes of the minor,” App. at 55, the Greek court
made no factual findings regarding Petroutsas’ lack of care
for the child, but rather focused on Petroutsas’ treatment of
Asvesta. While Petroutsas may not have treated Asvesta as he
should have, his behavior toward her does not bear directly on
his treatment of the child or his exercise of his custodial
rights.

   The lack of appropriate factual findings on Petroutsas’ fail-
ure to exercise his custody rights is even more concerning
when the Greek court’s reasoning is considered in light of the
minimal showing that is required under Article 3(b). Pérez-
Vera notes that Article 3(b) requires that “the applicant pro-
vide only some preliminary evidence that he actually took
physical care of the child, a fact which normally will be rela-
tively easy to demonstrate.” Pérez-Vera Report at 448-49, ¶
73 (observing that because Article 13(b), which provides an
exception or defense to return, requires the non-petitioning
person to show that the petitioning parent was not exercising
custodial rights, “we may conclude that the Convention, taken
as a whole, is built upon the tacit presumption that the person
who has care of the child actually exercises custody over it.”).
12394                ASVESTA v. PETROUTSAS
   Indeed, we and other courts have held that a petitioner’s
burden under Article 3(b) is minimal. For example, in Mozes,
we determined that the petitioning father had been “exercising
his parental rights and responsibilities up until the time [the
mother] sought custody.” 239 F.3d at 1085. There, the father
“had remained in regular contact with his family, visited them
several times, and ‘provided all finances needed to support his
wife and children in California.’ ” Id. (quoting Mozes, 19 F.
Supp. 2d 1108, 1111 (C.D. Cal. 1998)). Nothing in the record
suggests that Petroutsas’ conduct toward the child here did
not rise to the same level of care.

   The Sixth Circuit in Friedrich II explained that requiring a
petitioning party to meet a high bar in demonstrating the
actual exercise of custody rights contradicted the Conven-
tion’s objective to reserve custody determinations for the
country of habitual residence. 78 F.3d at 1065. Friedrich II
held that

    if a person has valid custody rights to a child under
    the law of the country of the child’s habitual resi-
    dence, that person cannot fail to “exercise” those
    custody rights under the Hague Convention short of
    acts that constitute clear and unequivocal abandon-
    ment of the child. Once it determines that the parent
    exercised custody rights in any manner, the court
    should stop—completely avoiding the question
    whether the parent exercised the custody rights well
    or badly.

Id. at 1066. In justifying this approach, the court explained
that a foreign court’s “decision about the adequacy of one par-
ent’s exercise of custody rights is dangerously close to . . . the
merits of the custody dispute” and that foreign courts are not
well-suited to determine “if a parent’s custody rights should
be ignored because he or she was not acting sufficiently like
a custodial parent.” Id. Here, the Greek court’s analysis of
whether Petroutsas exercised his custody rights goes beyond
                        ASVESTA v. PETROUTSAS                        12395
the threshold determination required by the Convention and,
in doing so, delves into matters more appropriately reserved
for the courts of the child’s habitual residence.

   [10] The Greek court’s Article 3 determination is thus
marked by numerous flaws, most notably, the court’s com-
plete failure to address a key provision of the Convention—a
failure that tainted its wrongful retention analysis as a whole.
We therefore conclude that the Greek court’s wrongful reten-
tion determination resulted from a clear misapplication of the
provisions of the Hague Convention.

       3.   Article 13(a): Consent

   [11] The Greek court also denied Petroutsas’ petition on the
basis of its finding that Petroutsas consented to the child’s
removal and stay in Greece.18 Under Article 13(a), a contract-
ing nation “is not bound to order the return of the child if the
person . . . which opposes its return establishes that the person
. . . having the care of the person of the child . . . had con-
sented to or subsequently acquiesced in the removal or reten-
tion.” Two pieces of evidence provided the basis for the
Greek court’s conclusion that Petroutsas consented: (1) a
statement in the November 2, 2005, e-mail from Petroutsas to
Asvesta, “Go to Greece with the child and we will see how
I will come to Greece to visit him,” and (2) a later writing,
notarized on November 11, 2005, in which Petroutsas gave
permission to Asvesta to travel with the child from November
8, 2005, to December 8, 2005.

   [12] We conclude that the Greek court’s factual determina-
tion is completely unsupported, and is indeed contradicted by,
this evidence. First, the statement in the November 2 e-mail
does not unequivocally demonstrate that Petroutsas consented
  18
     Although the Greek court did not expressly refer to Article 13(a) in
its decision, we infer that its analysis was conducted pursuant to that sec-
tion.
12396               ASVESTA v. PETROUTSAS
to the child’s indefinite stay in Greece. The statement could
be read to express consent either for the child to travel to
Greece temporarily or for the child to move to Greece perma-
nently. Read in the context of the entire e-mail, in which
Petroutsas pleads for Asvesta to stay in the United States for
the time being, it seems more plausible that Petroutsas did not
consent to the child’s indefinite or permanent relocation to
Greece.

   Further, Petroutsas’ later written consent for Asvesta to
travel with the child directly contradicts the Greek court’s
finding of that Petroutsas consented to the child’s indefinite
stay in Greece. In that writing, Petroutsas specified the time
during which he consented to Asvesta traveling with their
son: between November 8, 2005, and December 8, 2005.
Petroutsas filed his Hague petition in Greece for the return of
the child well after this time period elapsed. The Greek
court’s apparent dismissal of this evidence in favor of the ear-
lier e-mail was unwarranted, because Petroutsas’ explicit con-
sent for Asvesta to travel with their son for a finite period of
time occurred later in time and closer in proximity to
Asvesta’s removal and retention of the child in Greece than
the earlier and more vague November 2 e-mail.

   Finally, for the Greek court to conclude that Petroutsas
gave consent for purposes of Article 13(a), it also had to
determine that Petroutsas gave consent as a person “having
the care of the person of the child” at the time of the removal
or retention. The Greek court’s consent determination, there-
fore, is arguably at odds with its determination that Petroutsas
was not exercising his right of custody at the time of
Asvesta’s removal or retention of the child. See Pérez-Vera
Report at 448-49, ¶ 73 (noting that Article 3(b) requires that
“the applicant provide only some preliminary evidence that he
actually took physical care of the child” in order to show the
exercise of custodial rights).

  [13] Although we are reluctant to disregard the factual find-
ings of a foreign court, the lack of evidentiary support for the
                   ASVESTA v. PETROUTSAS               12397
Greek court’s finding of consent renders its Article 13(a)
determination unreasonable.

    4.   Article 13(b): Grave Risk of Harm

  We turn finally to the Greek court’s third ground for deny-
ing Petroutsas’ petition—its determination that the child
would face a grave risk of harm if he were returned to the
United States. Specifically, the Greek court found that the
child faced

    a severe danger that [his] return to the USA to [sic]
    expose him to mental tribulation, since he will be
    deprived of his mother’s presence, affection, love
    and care at the delicate age of 12 months, he will be
    deprived of the security and stability that he feels
    near his mother and his mental bond with her will be
    broken.

App. at 58. This determination was made, apparently, pursu-
ant to Article 13(b)’s exception to the return of the child
where “there is a grave risk that his or her return would
expose the child to physical or psychological harm or other-
wise place the child in an intolerable situation.” Again, we
find the Greek court’s determination to be wholly unsup-
ported.

   [14] First, the Greek court, in reaching this conclusion,
determined—or assumed—that the child’s separation from his
mother at a young age would be more traumatic than his sepa-
ration from his father. In doing so, the Greek court stepped
out of its role as a Hague Convention tribunal by inquiring
into the best interests of the child. Although we express no
views on the wisdom of such a determination, it is a determi-
nation pertinent only to the merits of the underlying custody
dispute which must be resolved not by a Hague court, but
rather the courts of the child’s habitual residence.
12398               ASVESTA v. PETROUTSAS
   Further, the Greek Hague court’s determination that the
child faced a grave risk of harm if returned to the United
States relied on an impermissibly broad interpretation of Arti-
cle 13(b). United States courts have consistently recognized
that, like the other exceptions to return of a child under the
Convention, Article 13(b)’s exception for grave risk should be
“narrowly drawn.” In re Adan, 437 F.3d 381, 395 (3d Cir.
2006) (citing Feder, 63 F.3d at 226); see also Blondin, 189
F.3d at 246; Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.
2001) (observing that “grave risk of harm” arises in “situa-
tions in which the child faces a real risk of being hurt, physi-
cally or psychologically, as a result of repatriation”).

   Courts of other contracting nations have also adopted a nar-
row view of Article 13(b)’s grave risk exception. See Frie-
drich II, 78 F.3d at 1068. For example, the Supreme Court of
Canada held in Thomson v. Thomson, [1994] 3 S.C.R. 551,
that a petitioner may demonstrate grave risk of harm only
when the harm “amounts to an intolerable situation.” In the
United Kingdom, the parent opposing return must show harm
that is “something greater than would normally be expected
on taking a child away from one parent and passing him to
another.” In re A., [1988] F.L.R. 365, 372.

   In Diorinou, as previously noted, the Second Circuit
reviewed the reasoning of a Greek court decision that based
an Article 13(b) determination on reasoning similar to that
employed by the Greek court in this case. The Greek court
had stated that “if the children were forced to leave their
mother, there would be grave danger of exposing them to psy-
chological harm and place them in an intolerable situation.”
237 F.3d at 144 (internal quotation marks omitted). Although
the Second Circuit ultimately extended comity to the Greek
court’s decision on the strength of its Article 3 determination,
our sister circuit emphasized that it was “dubious” about the
Greek court’s reasoning, noting that Article 13(b) was “to be
narrowly construed to preclude return only in extreme circum-
stances.” Id. at 145 (citing Friedrich I, 73 F.3d at 1068-69).
                    ASVESTA v. PETROUTSAS                 12399
   Here, as in Diorinou, the Greek court failed to support its
conclusion with evidence that the child, if returned to the
United States, would have experienced “something greater
than would normally be expected on taking a child away from
one parent and passing him to another.” In re A., [1988]
F.L.R. 365, 372. Although the Greek court opined that the
child would suffer more trauma as a result of his young age,
allowing an exception to return in cases involving young chil-
dren wrongfully removed or retained by their mothers would
swallow the Convention’s rule of return.

   [15] By basing its analysis largely on matters properly
reserved for the courts of the child’s habitual residence and by
construing Article 13(b)’s grave risk exception so broadly, the
Greek court’s Article 13(b) determination contravened the
intent of the Convention’s drafters. As a result, this determi-
nation cannot properly support the Greek court’s denial of
Petroutsas’s petition.

IV.   Conclusion

   Although we are reluctant to ignore a foreign court’s deci-
sion under the Hague Convention, our concern with the Greek
court’s analysis goes beyond a mere difference of opinion on
the proper application of established law to the facts of the
case or a different view of the facts in light of the evidence
presented. The Greek court’s misapplication of key provisions
of the Convention and its unreasonable factual findings under-
mine its decision to deny Petroutsas’ petition. Further, key
aspects of the decision contravene underlying principles of the
Convention, such as the avoidance of the consideration of the
merits of custody disputes and the need to draw exceptions to
return narrowly. Unlike the Greek court’s analysis in
Diorinou, no ground upon which the Greek court relied here
is “entirely supportable” under the Convention. Rather, like
the Third Circuit in Carrascosa, we believe that the Greek
court’s decision departed from the fundamental premises of
the Hague Convention, both its underlying goal of returning
12400               ASVESTA v. PETROUTSAS
children to their habitual residence and its spirit of mutual
cooperation and trust among contracting nations.

   [16] Because we conclude that the Greek court’s failure to
comply with the Hague Convention was so egregious, we
hold that, even reviewing for abuse of discretion, the district
court erred in extending comity to the Greek court’s denial of
Petroutsas’ petition and to the specific grounds underlying
that denial. As the district court declined to conduct its own
analysis of the merits of Asvesta’s Hague petition, specifi-
cally the habitual residence determination, we remand the
matter to the district court so that it may do so.

  REVERSED and REMANDED.
       ASVESTA v. PETROUTSAS         12401




            APPENDIX
Asvesta v. Petroutsas No. 08-15365
12402   ASVESTA v. PETROUTSAS
ASVESTA v. PETROUTSAS   12403
12404   ASVESTA v. PETROUTSAS
ASVESTA v. PETROUTSAS   12405
12406   ASVESTA v. PETROUTSAS
ASVESTA v. PETROUTSAS   12407
12408   ASVESTA v. PETROUTSAS
ASVESTA v. PETROUTSAS   12409
12410   ASVESTA v. PETROUTSAS
