dissenting.
I concur in the majority’s conclusion that the district court erred in failing to consider the governing legal standards and relevant facts relating to Ms. Ohlander’s Fed.R.Civ.P. 41 motion to dismiss. Rather than resolve the Rule 41 issue ourselves, however, we should remand this case to the district court for an appropriate Rule 41 evaluation and an accompanying adequate development of the record in light of the new law established by this court’s opinion. Therefore, I dissent from the majority’s resolution of the motion to dismiss on the merits and its failure to remand.
A. Rule J/,1 (a)(2) Factors
The trial court denied Ms. Ohlander’s Fed. R.Civ.P. 41(a)(2) motion to dismiss for the sole reason that Ms. Ohlander was in contempt of court. In doing so, the court failed to consider the appropriate legal standards under Rule 41(a)(2). Although the trial court could properly consider Ms. Ohlander’s contemptuous conduct, it was also required to evaluate other governing legal criteria. McNickle v. Bankers Life & Cas. Co., 888 F.2d 678, 680 (10th Cir.1989) (noting trial court errs when it fails to consider applicable legal standard or facts on which exercise of discretionary judgment is based). Its failure to do so requires reversal.
Ironically, the majority has reversed the district court for refusing to grant Ms. Ohlander’s motion for the sole reason that she was' in contempt of court, yet ruled de novo that Ms. Ohlander’s motion should be granted for the sole reason that Mr. Larson initiated his own Hague Convention proceedings.1 The district court was required to evaluate fairly all Rule 41 factors; we should similarly be bound. An adequate record on remand, however, would be necessary.
In evaluating a Rule 41(a)(2) motion to dismiss, a court must consider the prejudice to the non-moving party. Clark v. Tansy, 13 F.3d 1407, 1411 (10th Cir.1993). In Tansy, we adopted the following factors to assess “legal prejudice” to the opposing party: (1) the non-moving party’s effort and expense of preparation for trial; (2) the moving party’s delay and lack of diligence in prosecuting the action; and (3) insufficient explanation for the need to allow a dismissal. Clark, 13 F.3d *1543at 1411. This list is not exhaustive; a court may also consider other relevant factors in its Rule 41(a)(2) analysis. Phillips USA Inc. v. Allflex USA Inc., 77 F.3d 354, 358 (10th Cir.1996) (noting above factors are not exclusive, but instead are guides for district court).
The record does not address Mr. Larson’s effort and expense of preparation for trial. Ms. Ohlander did not file her motion to dismiss, however, until Mr. Larson had filed a request for a final pretrial conference, suggesting that Mr. Larson had completed substantial trial preparation. If so, this would weigh against granting a motion to dismiss.
As to the second Tansy factor, the majority states that “the record shows Ms. Ohlander’s counsel was actively and diligently moving forward with the ease regardless of Ms. Ohlander’s absence.” Maj. Op. at 1538. A review of the docket sheet, the only record of Ms. Ohlander’s litigation activity, undermines this assertion. The docket reveals that Ms. Ohlander waited almost a year after initiating her action before filing her motion to' dismiss. During this time she did virtually nothing to affirmatively move her ease along; instead, she merely responded through counsel to Mr. Larson’s efforts to obtain a contempt order and the return of Julia' to Utah. Thus, if anything, the limited record before us supports the conclusion that Ms. Ohlander did not diligently prosecute this action. Indeed, her conduct in absconding with Julia in violation of the court order belies a motivation to move her case forward. A remand would be useful on this point to explore whether she or her counsel made any efforts to prosecute the case that do not now appear in the record.
The majority also opines that because Ms. Ohlander filed her motion to dismiss after Mr. Larson filed his application with the United States Central Authority, “the timing of Ms. Ohlander’s motion could not constitute excessive delay sufficient to legally prejudice Mr. Larson.” Maj. Op. at 1538. The logic of this statement is unclear. The filing of her motion in no way reflects her pre-filing diligence in prosecuting her ease once she removed the child from the United States in violation of the district court’s order. Indeed, Mr. Larson’s application with the United States Central Authority is absolutely irrelevant to an evaluation of whether Ms. Ohlander diligently pursued her separately filed action before the United States District Court.
Finally, Ms. Ohlander did not provide a sufficient explanation of her need for dismissal. Ms. Ohlander gave three reasons for her Rule 41 motion, all derived from her fleeing with the child in violation of the district court’s order and her defiance of the district court’s subsequent order that the child be returned to Utah. None of Ms. Ohlander’s reasons warrant dismissal of her action. The majority forthrightly acknowledges that granting Ms. Ohlander’s motion based on her first two reasons (that her petition was moot, and the child was no longer in the state of Utah) would create a perverse incentive for others to use United States courts to obtain physical control of their children and then unlawfully flee the United States. Thus, these reasons coneededly provide no support for Ms. Ohlander’s motion.
The majority concludes that Ms. Ohlander’s third reason for dismissal, Mr. Larson’s application to the Swedish Authority and his subsequent petition to the Swedish court, “provided the most persuasive reason to dismiss the United States district court proceeding.” Maj. Op. at 1539. Punishing Mr. Larson for enlisting the aid of the only sovereignty with physical control of his child, however, ignores the practical and emotional dilemma with which Mr. Larson was faced. Litigating this matter in the United States could not provide Mr. Larson what he sought most: contact with his child. With his child in Sweden, albeit unlawfully, Mr. Larson had no real alternative but to seek Swedish assistance.2 Otherwise, he was faced with the devastating potential of a lingering loss of contact with his daughter. In addition, Mr. *1544Larson had strategic litigation reasons for filing in Sweden when he did. The Hague Convention allows a parent who has fled even unlawfully with a child to assert a settled environment defense to a petition for return of a child if the petition is not filed within one year from the date the child is taken. Hague Convention on the Civil Aspects of International Child Abduction, Dec. 23,1981, art. 12, 51 Fed.Reg. 10494, 10499 (1986). Mr. Larson, therefore, had only one year to file if he wanted to prevent Ms. Ohlander from creating this defense by her unlawful flight. Under these circumstances, Mr. Larson’s filing in Sweden does not in any way compel the dismissal of the United States action.
B. Additional Factors
1. Appropriate Forum
The majority maintains that Sweden was “the jurisdiction where the claims and defenses of both Ms. Ohlander and Mr. Larson could be more fairly adjudicated.” Maj. Op. at 1540. Specifically, the majority bases its preference for a Swedish adjudication on the presence of all the parties, including Julia, in Sweden, and its view that only in Sweden could Ms. Ohlander assert a “settled environment” defense.
Placing weight on the presence of all parties in the Swedish proceedings is inappropriate. The precipitating reason for all parties’ participation in the Swedish action was Ms. Ohlander’s unlawful flight from the United States with Julia. Had Ms. Ohlander obeyed the district court’s order and remained in Utah with Julia during the pendency of the United States proceedings, all parties would have been physically present for the United States proceedings. Instead, Ms. Ohlander chose to participate through counsel rather than to personally attend the United States trial. Her unlawful absence from the United States trial should not accrue to her benefit.
The majority’s view that the settled environment defense is available only in Sweden is similarly flawed. Article 12 of the Hague Convention creates the settled environment defense only when “a period of less than one year has elapsed from the date of the wrongful removal or retention.” Hague Convention, art. 12, 51 Fed.Reg. at 10499. Because Mr. Larson filed in Sweden within one year of Ms. Ohlander’s removal of Julia, the defense was unavailable to Ms. Ohlander in the Swedish action. Similarly, if Mr. Larson had complied with the majority’s ruling and filed in the United States within one year of Julia’s removal, the defense would have been unavailable in the United States action. Furthermore, the majority erroneously asserts that denying Ms. Ohlander’s motion to dismiss renders the settled environment defense unavailable to her in the Utah action. The availability of the settled environment defense hinges on the filing and timing of Mr. Larson’s own petition, not on whether Ms. Ohlander’s motion to dismiss is granted or denied.
2. Hague Convention Procedures
The majority also states that Mr. Larson “chose to assert his claims in a court of another jurisdiction,” Maj. Op. at 1539 (emphasis added), and that he would have been better served by filing a cross-petition in the United States District Court. Mr. Larson did not, however, have a choice where to file his petition once Ms. Ohlander took Julia to Sweden. Section 11603(b) of the International Child Abduction Remedies Act, the enabling legislation for the Hague Convention, provides:
Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.
42 U.S.C. § 11603(b) (emphasis added). At the time Mr. Larson filed his petition in January 1995, Julia was in Sweden, not Utah. At that point in time, the enabling legislation *1545for the Hague Convention itself compelled Mr. Larson to file in Sweden because of Julia’s presence there; it was the only nation with jurisdiction.
Mr. Larson was careful to limit his Swedish petition to the issue of Ms. Ohlander’s taking of Julia in February 1994. The petition specifically informed the Swedish court of the Hague Convention proceedings pending in the United States District Court for the District of Utah, and that Mr. Larson was not intending to confer jurisdiction on the Swedish courts over the Hague Convention matters that were properly before the United States District Court. Mr. Larson also requested that the Swedish courts await the district court’s ruling on those matters.
After the United States District Court entered its findings and conclusions, the United States Central Authority notified Sweden of the United States ruling and asked that the Swedish court limit its decision to the issue presented in Mr. Larson’s petition. In a memo to Sweden’s Central Authority, a representative of the Office of Children's Issues stated:
The only unresolved Hague Convention issue for the Swedish courts to rule upon is the final resolution of Ms. Ohlander’s most recent removal of the child from Utah on February 1, 1994. There is no doubt that Sweden is the “requested State” for the adjudication of that issue, and that the Swedish courts have exclusive jurisdiction to make a final resolution of that matter in accordance with the provisions of the Hague Convention. Regarding that removal, the U.S. Court, as a judicial authority of the “requesting State,” has made findings in accordance with Article 15 of the Convention, namely that the removal was in breach of Mr. Larson’s actually-exercised rights of custody under Utah law, and that Mr. Larson neither consented to nor acquiesced in the removal. These findings, coupled with the judicially established fact that the child was habitually resident in Utah in November 1993, where she continued to live until the date of said removal, clearly establish that this was a new wrongful removal within the meaning of Article 3 of the Convention.
Memorandum from Mr. James L. Schuler, Office of Children’s Issues, United States Central Authority, to Central Authority of Sweden 2 (August 14,1995).
The Hague Convention procedures thus not only required Mr. Larson to file in Sweden, where the child was located, but also allowed him to limit his petition to the one issue not before the United States District Court. By following Hague Convention procedures and limiting his Swedish petition, he did not voluntarily -create the potential for conflicting international decisions.
3. Conflicting Decisions
The majority’s desire to avoid conflicting decisions of sovereign states is a worthy goal. Nevertheless, no law, national or international, can be expected to resolve such conflicts in all cases, particularly cases involving a mother and father warring over their offspring. To base the outcome of this case on a potentially conflicting decision of Sweden is to unjustifiably abandon the rights of a United States citizen in the name of international comity. It is indeed ironic to do so when the substantive decision of the district court was not in conflict with any extant Swedish decision at the time of its promulgation. To the contrary, the Swedish decision favorable to Ms. Ohlander created the conflict in the decisions of two sovereign nations. The Swedish decision was issued after and in conflict with the district court decision.3 See United States ex rel. Saroop v. Garcia, 109 F.3d 165, 169-70 (3d Cir.1997) (“As a condition to honoring a foreign country’s judicial decrees, the *1546Court also requires reciprocity on the part of the foreign nation.”); Remington Rand Corp.-Del. v. Business Sys. Inc., 830 F.2d 1260, 1273 (3d Cir.1987) (noting comity must be “two-way street” and reciprocity is consideration of “extreme importance”).
Because no Hague Convention decisions had been rendered by any Swedish courts at the time the district court ruled on the motion to dismiss, it is furthermore inappropriate for this court to base its ruling on the conflict in decisions. See Maj. Op. at 1541 (“By failing to dismiss the United States action we would allow to stand two conflicting decisions regarding Julia’s state of habitual residence.... ”). Instead, our review should be limited to those factors before the district court at the time it ruled. New factual matters should only be considered by the district court in the exercise of its discretion on remand.
Jp. Consideration of Ms. Ohlander’s Contempt
The district court’s consideration of Ms. Ohlander’s contempt of court was entirely appropriate. Although the district court considered this to the exclusion of other relevant criteria, its actions in doing so are understandable, if not correct. Ms. Ohlander availed herself of the services of the district court to obtain temporary custody of the child. She then fled this country in direct violation of the very order by which she obtained physical control of the child. Her conduct can neither be ignored nor rewarded. Although this should not control the district court’s decision to the exclusion of other governing factors, it may fairly be given significant weight in the court’s overall analysis.
C. Treatment of Larson’s Defenses as Counterclaims
The majority rejects Mr. Larson’s request that his response to Ms. Ohlander’s petition be treated as a counterclaim or, for Hague Convention purposes, a petition.4 Maj. Op. at 1538-39. Rule 8(c) of the Federal Rules of Civil Procedure allows a court to treat a defense as a counterclaim, “if justice so requires.” In Mr. Larson’s response to Ms Ohlander’s petition, he alleges that the United States was, and at all times had been, the country of Julia’s habitual residence as defined under the Hague Convention, and prays for his daughter’s return to his physical care and control. The essence of Mr. Larson’s response is generally equivalent to the relief he would request were he to file his own formal Hague Convention petition.5 Treating Mr. Larson’s response as a counterclaim would place the respondent’s removal of the child and any proper settled environment defense before the district court, thus eradicating the majority’s concern that such issues could not be decided without Mr. Lar*1547son’s own petition in the district court. See Hague Convention, arts. 3 & 12, 51 Fed.Reg. at 10,498-10,499; 42 U.S.C. § 11603(b), (e). In light of Rule 41(a)(2) factors and the Hague Convention’s objective of protecting children from the law of “grab and run,” (Maj. Op. at 1534-35), the interests of justice are indeed served by construing Mr. Larson’s response as a counterclaim.
D. Conclusion
The majority has reversed the district court for refusing to dismiss Ms. Ohlander’s petition on the basis of her contempt of court and instead has ruled de novo that Ms. Ohlander’s motion should have been granted. In doing so, the majority has considered facts not before the district court at the time it ruled. It has further allowed those very facts (i.e., conflicting international decisions) to control the outcome of this appeal, to the exclusion of other governing criteria.
This case should be remanded to the district court for full consideration of Rule 41(a)(2) criteria.6 The trial court failed to consider critical factors governing Ms. Ohlander’s motion. Consequently, the record of such factors is incomplete. An appellate court may decide a matter rather than remand if the underlying facts are undisputed and judicial economy and efficiency would be furthered thereby. Park County Resource Council, Inc. v. United States Dept. of Agric., 817 F.2d 609, 617-18 (10th Cir.1987), overruled on other grounds by Village of Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992). Such is not the ease here. A remand is required when the record needs further development. See Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir.1994) (remanding when record inadequate to evaluate trial court’s consideration of required criteria).
In this ease, the record is simply insufficient to enable this court to apply adequately the legal criteria governing Rule 41(a)(2) motions to dismiss. In addition, the majority has set forth a set of novel factors it believes must be evaluated in this case. The trial court had absolutely no notice that consideration of such factors would be required in this case. If the majority is going to require a trial court to consider novel factors, that court should be given an opportunity to exercise its discretion, address those factors on remand and develop a meaningful record. At that time, the district court could carefully consider the mandate of the Convention’s Article 12 which provides that a forum may stay or dismiss a Hague Convention proceeding when the subject child has been taken to another State. Hague Convention, art. 12, 51 Fed.Reg. at 10,499.
In the context of this ease, an appellate ruling as a matter of law is inappropriate. I would reverse and remand for further proceedings on Ms. Ohlander’s Rule 41 motion to dismiss.
. As discussed on pages 1534-35, the only other factor the majority articulates in favor of Ms. Ohlander's motion is its conclusory statement, lacking support in the record, that there was no excessive delay and lack of diligence on Ms. Ohlander’s part in bringing her motion. Stripped of this unsupported assertion, it is evident that the majority's outcome rests only on the desire to avoid a potentially conflicting decision from another sovereign state.
. As noted on pages 1535-36, his filing in Sweden was also mandated by the United States enabling legislation for the Hague Convention, the International Child Abduction Remedies Act, which provides jurisdiction only to courts “in the *1544place where the child is located at the time the petition is filed.” 42 U.S.C. § 11603(b).
. Before the Sweden Supreme Administrative Court created the international conflict in decisions, the United States Central Authority entreated the Swedish courts:
It is only through [ ] cooperation that the Hague Convention can successfully resolve these international conflicts over children, as it was designed to do. The present case offers a perfect illustration: A Hague Convention judgment from Sweden which respects the prior Hague Convention judgment from the U.S. will put an end to the international jurisdictional competition between these States and will allow for a final and long-overdue custody adjudication, thus providing for the best interests of the child and finally allowing her to develop stable, secure family relationships. On the other hand, a Hague Convention judgment from Sweden which disregards the prior Hague Convention judgment from the United *1546States would only perpetuate and escalate the already intolerable conflict, as the parties would then possess contradictory Hague Convention judgments in their favor from their respective States, which would be the most unstable and insecure situation imaginable. Such a situation would guarantee that whichever parent has possession of the child would not dare allow the other parent access to the child, and the parent without possession of the child would have no option but to resort to force in order to have any contact with the child.
Memo from Mr. James L. Schuler, Office of Children's Issues, to Central Authority of Sweden 2-3 (August 14, 1995).
. Rule 41(a)(2) provides: “If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court.” Fed:R.Civ.P. 41(a)(2).
. For example, Ms. Ohlander's petition before the district court requested the following relief:
Petitioner requests that the child be immediately returned to her custody, and that she be permitted to return to Sweden, which is the' country of habitual residence of both Petitioner and the child, and that temporarily, pending further hearing on this Petition, she be permitted to retain custody of the child within the jurisdiction of this Court pending this Court’s final determination.
Petition for Return of Child to Petitioner at 4. Mr. Larson alleged substantially the same matters in his defenses. Justice would not be served by requiring Mr. Larson to file a separate pleading, formally designated as a counterclaim, alleging the very matters already contained in his defenses. To do so honors form over substance in an emotionally charged setting where a parent seeks to reestablish contact with his child.
. It is incongruous for this court to say that Rule 41 motions are addressed to the sound discretion of the trial court and yet, rather than remand, rule de novo that trial court discretion as a matter of law could only result in dismissal. Beyond this incongruity, ruling de novo that Ms. Ohlander’s Rule 41 motion should be granted as a matter of law assumes that the district court's discretionary ruling upon remand would be denial of the motion, rather than granting the motion or even staying the action, an alternative expressly contemplated by the Hague Convention. Hague Convention, art. 12, 51 Fed.Reg. at 10,-499.