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Case Commentary: Colchester v. Lazaro, 16 F.4th 712 (9th Cir. 2021)

James D. Garbolino
November 16, 2022

Grave Risk | Domestic Violence | Discovery | Experts | Findings

In this case, a district court had denied a mother’s request for the court to appoint a forensic psychologist to examine her child, to assess whether domestic violence presented a grave risk of psychological harm. Questions for the Ninth Circuit’s review were whether her request should have been granted and whether the district court made sufficient findings to support its order of return of the child to Spain.


The district court abused its discretion by refusing to permit examination of child by psychologist. The court erroneously adopted the father’s conclusory findings of fact and failed to analyze the evidence presented at trial. The Ninth Circuit reversed and ordered a new trial.


In 2020, a Spanish court awarded sole custody of the parties’ daughter to the mother. The mother removed the child to Seattle, and the father filed a Hague petition for return in state court. The mother removed the case to federal court and made two discovery requests, one for documentation and the second for a psychological examination of the child. The mother argued that the psychological examination was necessary to develop reliable evidence as to the child’s emotional condition because the father abused both child and mother. The district court denied the discovery requests without explanation.

The mother’s trial evidence included medical records, testimony from a Spanish psychologist who conducted a preliminary video-examination of the child before the she was removed from Spain, and other witness testimony. The court declined to allow the child to testify or to be examined in chambers. The mother’s testimony described numerous instances of the father punching and throwing her to the ground when she was pregnant, hitting her with household objects, striking her in the head, shoving her into walls, screaming at her, and subjecting her to control by withholding financial support. On one occasion the father dropped the child outside a kitchen window and forbid her from reentering the house until dinnertime. Some of the incidents detailed by the mother were corroborated by text and photo messages, emails to domestic violence organizations, an audio recording, and testimony of the paternal grandmother.

The Spanish psychologist who examined the child testified at the hearing that the child was possibly abused by the father, but she limited her opinion because she was not able to interview the child in person due to the mother’s flight from the father and COVID-19 lockdown measures.

The district court rejected the mother’s defenses, ordered the child returned to Spain, and ordered that the mother be entitled to supervised visits limited to two days per month. The order of return omitted any mention of abuse and incorporated by reference the father’s proposed findings of fact and conclusions of law. The court’s findings did not address any of the grave-risk evidence the mother presented at the trial.


Although neither the Hague Convention nor ICARA[1] provides for the right to the appointment of a psychologist, denial of the opportunity to present such expert testimony can be an abuse of discretion. The mother argued that a psychological expert was essential to establishing her defense of grave risk. She cited to a recent Hague case where a district court in Washington, despite finding credible evidence of the father inflicting violence on the mother, rejected her grave risk defense due to failure to present sufficient evidence—namely testimony from a forensic psychologist—that their children suffered a grave risk of psychological harm as the result of being witnesses to domestic violence.[2]

The Ninth Circuit noted that courts hearing Hague cases involving a grave risk defense routinely grant requests for orders compelling psychological examination of children.

Indeed, the Seventh Circuit held in Khan v. Fatima[3] that it was reversible error for a district court to refuse a respondent mother’s request for a psychological evaluation of her child where there was credible evidence that the petitioning father had physically and psychologically abused her in the child’s presence. “The failure to allow psychological evidence,” along with inadequate findings of fact, made “the evidentiary hearing . . . inadequate.”[4]

The court distinguished cases cited by the father for the proposition that it was not error to deny the appointment of a psychologist to evaluate grave risk. Those cases involved voluminous evidence in the record or insufficient evidence to establish domestic violence. The district court’s decision failed to explain its decision to deny the mother’s request for a psychological evaluation. The Ninth Circuit reiterated its critique of the district court’s adopting a party’s verbatim findings of fact: by adopting the father’s findings, the district court abdicated its responsibility to properly examine the trial evidence tendered and to assess the credibility of parent testimony.[5]

[1]. Int’l Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001 et. seq.
[2]. Colchester v. Lazaro, 16 F.4th 712, 720 (9th Cir. 2021) (citing Garcia v. Duarte Reynosa, Nos. 2:19-cv-01928-RAJ, 2020 WL 777247, at *4 (W.D. Wash. Feb. 18, 2020)).
[3]. 680 F.3d 781, 787–88 (7th Cir. 2012).
[4]. Id. at 788.
[5]. Colchester, 16 F.4th at 728 (citing FTC v. Enforma Nat. Prods., Inc., 362 F.3d 1204, 1215 (9th Cir. 2004)).