dissenting:
It always presents a sad case when children are removed from their mother.1 It seems an even worse case when the mother has not had her day in court to testify why the children should be with her.
But here, in a federal court of appeals, it is still a legal case. A case must be decided by the rules of our law; we must apply the correct standard of review and we must remember the procedural posture of the case. With respect, the majority fails to do so.
The question in this case: Is a litigant deprived of due process by not being heard in court when she has already shown through her offer of proof she has no relevant evidence to present? Rather than look at whether the mother should have been given a hearing, the majority should have focused on whether the mother’s motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e) put forth any evidence that, had it been presented at the hearing, likely would have changed the hearing’s result. Had the majority done that, it would have seen that the mother proved herself out of court: She offered to prove only such evidence as would have lost for her at the hearing she claims she was unjustly denied. Absent suffering any prejudice by the denial of a hearing, the judgment of the trial court should be affirmed. In today’s argot: “No harm; no foul.” See Fed.R.Civ.P. 61(a judgment will not be set aside for harmless error). Accordingly, I must respectfully dissent.
I agree with the majority’s holding regarding equitable tolling of the one-year period in which to commence actions to recover possession of children. Where the abductor hides the location of the children, and the parent or guardian does not know where to file a petition under the Hague Convention, the one-year period should not run.
But those are not the facts of this case. All the evidence offered to the district court by the father (Bardales) showed the mother (Duarte) knew perfectly well where the children were located' — indeed, in the same house Duarte and Bardales had purchased in San Diego and in which they lived with the children until 2000 when Duarte took the children to Mexico. The children were in the same public schools which they had always attended.
I
Article 12 of the Hague Convention provides:
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of *572the proceedings before the judicial 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.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in [his] new environment.
Hague Convention, art. 12 (emphasis added). The United States adopted the Hague Convention when it enacted the International Child Abduction Remedies Act (ICARA). 42 U.S.C. §§ 11601-11610. Under ICARA, “commencement of proceedings,” as used in article 12 of the Hague Convention, means the filing of a petition 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) and ©(emphasis added).
Duarte filed her petition for the return of her children in the San Diego Superior Court on June 2, 2005, almost two years after Bardales took the two youngest children from her on July 8, 2003. The majority’s discussion of Duarte’s previous efforts to commence an action is to no avail. Even Duarte does not contend her filing of a Hague Convention application with the Protection of Human Rights Department in Tijuana, Mexico on September 14, 2003, or the subsequent receipt of her application by the San Diego District Attorney’s Office, commenced proceedings under article 12. The only case to address the issue holds that filing an application with an administrative authority, as opposed to filing a petition with a court of competent jurisdiction, does not commence proceedings under ICARA. Wojcik v. Wojcik, 959 F.Supp. 413, 418 (E.D.Mich.1997).
Where, as here, an ICARA petition is not filed in a court of competent jurisdiction within one year of a child’s wrongful removal, the respondent can raise the affirmative defense “that the child is now settled in [his] new environment” and thus any custody proceeding should take place in the venue where the children now live. Hague Convention art. 12; 42 U.S.C. § 11603. This is known as the “well-settled” exception or defense. The respondent must establish the children are well-settled by a preponderance of the evidence. 42 U.S.C. § 11603.
Thus, the merits of this case involve three questions: First, did Bardales wrongfully remove the children from Duarte’s custody? Yes; this is the “prima facie” case Duarte must prove, and Bar-dales concedes this first point.2 If Duarte had filed her petition within one year after *573July 8, 2003 — -the day Bardales took the children — this would end our inquiry: The children would be returned to Duarte, and the parties would have to litigate the custody dispute in Mexico. See Hague Convention art. 12. Because Duarte did not file her petition until June 2, 2005, however, we proceed to the second question.
Did Bardales hide the whereabouts of the children such that Duarte did not know where to file her petition under the Hague Convention? If so, then equitable tolling applies and Duarte wins. If not, Bardales is entitled to show the children are well-settled in their new environment and we proceed to the third and final question. Are the children well-settled in San Diego?
Both parties in this case filed numerous declarations in response to the district court’s order to show cause, and were given the opportunity to brief the issues of whether Bardales hid the children and whether the children are “well-settled” in San Diego. The district court, acting as the trier of fact, found Bardales did not attempt to hide the children’s whereabouts from Duarte, and the children are well-settled in San Diego.
The district court declined to give Duarte a hearing because Duarte’s declarations affirmatively showed she had no personal knowledge regarding whether the children are well-settled in San Diego. Therefore, Duarte’s presence at a hearing would be immaterial. The record contains ample evidence to support the district court’s findings, set forth below.
II
The majority uses an incorrect standard for a Rule 59(e) motion based on new evidence.
In evaluating the district court’s rulings, the majority cites the general standard for granting a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), without delving further into the Rule’s requirements.
Duarte’s Rule 59(e) motion was based on a claim of newly discovered evidence. While it is true that newly discovered evidence is one basis for granting a Rule 59(e) motion, not just any evidence will do. To prevail on a Rule 59(e) motion because of newly discovered evidence, the movant must show the evidence (1) existed at the time of the trial or proceeding at which the ruling now protested was entered; (2) could not have been discovered through due diligence; and (3) was of such magnitude that production of it earlier would have been likely to change the disposition of the case. Coastal Transfer Co. v. Toyota Motor Sales, 833 F.2d 208, 211 (9th Cir.1987); see also Fed.R.Civ.P. 61(holding a judgment will not be set aside for harmless error).
Furthermore, we must remember our standard of review, which is not de novo. We are to review the denial of a motion to alter or amend a judgment under Rule 59(e) for abuse of discretion. See Pasatiempo v. Aizawa, 103 F.3d 796, 801(9th Cir.1996).
The new evidence Duarte presented was evidence that she could not obtain a certified report from the Mexican Transit Authority showing she reported the theft of her handbag to them. The new evidence explained why Duarte could not produce the evidence required by the district court for the continuance of the hearing, but it did nothing to prove that, had she appeared, Duarte could have presented evidence that would have been likely to change the outcome of the case.
The district court acknowledged that Duarte’s new evidence was sufficient to show she had reported the theft of her handbag. Nevertheless, the district court *574denied Duarte’s motion to alter or amend the judgment. It did so because even if Duarte were given a hearing and proved her prima facie case — that Bardales wrongfully took the children from her and brought them to the United States — the district court still would have granted judgment for Bardales on the merits, because Bardales did not hide the children from Duarte, and the children are well-settled in their home with Bardales. Duarte’s evidence that her purse was stolen had nothing to do with whether Bar-dales hid the children from her, nor with whether the children were well-settled. Therefore, it would not have “been likely to change the disposition of the case.” Coastal Transfer Co., 833 F.2d at 211. The majority fails to analyze this point. The majority, it seems, would require district courts to grant a Rule 59(e) motion whenever new evidence is presented, no matter how meaningless the evidence is to the end result of the case.
Not only does the majority apply the wrong standard of review, it also disregards crucial evidence in the record.
Ill
The district court had already given Duarte an opportunity to present evidence on the merits.
The majority asserts the evidence in the record on the issue of equitable tolling was incomplete and the district court abused its discretion when it failed to give the parties a hearing on this issue. See Maj. Op. at 568. The record belies the majority’s assertion.
On June 29, 2006, the district court issued an order to show cause “why equitable tolling should, or should not, apply from the date of the alleged wrongful retention” of the children. The court required both parties to present briefing and evidence on the only issue that was not conceded3 in the case — whether Bardales hid the children from Duarte, ordering that:
Plaintiff is directed to provide further details concerning Defendant’s alleged ‘secreting’ of the four children, including Plaintiffs attempts at locating the children. Defendant is directed to provide the Court with specific information as to [the two oldest children’s] whereabouts from January 1, 2003 until June 2, 2005, and [the two youngest children’s] whereabouts from July 8, 2003 until June 2, 2005.
June 29, 2006 Order to Show Cause.
Duarte filed a 90-page response to the order to show cause that included various charts showing Duarte’s attempts to find the children and fifteen declarations by people who helped Duarte in those attempts. As the majority notes, Duarte gave the court a list of witnesses and exhibits she intended to call at the hearing. Maj. Op. at 568. Had Duarte provided only a list, we might not know what evidence those witnesses could proffer. But Duarte went further. She filed declarations from these witnesses stating the substance of their knowledge, and she presented an offer of proof in the form of a chart, that describes the substance of each witness’s proposed testimony.
Glaringly absent from any of these declarations or descriptions is a statement that anyone looked for the children at the home which was purchased by Duarte and Bardales, and where Duarte, Bardales and *575their children lived together for years in San Diego, and where Bardales and the children still reside. Nor is there any evidence that anyone checked with the local public schools. Additionally, Duarte conceded she had no evidence regarding whether the children are well-settled in San Diego.
In contrast, Bardales filed seventeen affidavits in support of his response to the order to show cause. These declarations were from: a family member who lives in San Diego; Bardales’s new wife; teachers of all four children along with school records showing the children consistently were enrolled in the local public schools near the home Duarte shared with Bar-dales; friends of the family; Bardales’s employer; a neighbor; the family doctor; the children’s psychiatrist; and a declaration from the San Diego Deputy District Attorney that its investigator was able to verify Bardales’s current address as the home he and Duarte purchased. Bar-dales’s evidence establishes the following:
Evidence Bardales Did Not Hide the Children
Duarte should have known exactly where to find Bardales and the children. In 1990, Duarte and Bardales moved from Mexico to San Diego, where they purchased a home together. They lived at that address in San Diego for several years, during which time they had their four children. As of the date of the district court hearing, Bardales and the children were still living in this same home in San Diego.
Furthermore, Duarte was personally served on July 9, 2003 with the San Diego Superior Court order that granted custody of the children to Bardales and granted a temporary restraining order against Duarte. Duarte also was served with Bar-dales’s petition to be awarded custody of the children, and his ex parte application for a temporary restraining order. That petition listed Bardales’s attorney’s address. Duarte could have served Bar-dales’s attorney with her petition for the return of the children, and the San Diego Superior Court would have had jurisdiction to decide the merits of Duarte’s petition.
In its order denying the motion to alter or amend the judgment, the district court denied Duarte the benefit of equitable tolling based, in part, on the fact that Bar-dales’s petition gave Duarte actual notice of the whereabouts of the children as of July 9, 2003. Because Duarte first filed her petition in the San Diego Superior Court, California law controls the service of process. Under California law, service of process or pleading upon a party’s attorney is valid to effect service on the party the attorney represents. See Reynolds v. Reynolds, 134 P.2d 251, 21 Cal.2d 580, 584 (1943) (“service of papers on the attorney of record, where service upon the attorney is proper, binds the client until the attorney is discharged or substituted out of the case in the manner provided by law”). Because Duarte had Bardales’s attorney’s address at all times, she did not need Bardales’s address.
Bardales’s petition for custody of the children also alleged that the San Diego Superior Court had jurisdiction to determine the custody dispute. Because Bar-dales filed his petition for custody in the San Diego Superior Court, that court already had personal jurisdiction over Bar-dales to adjudicate the custody of the children. Thus, Duarte knew exactly which court would have jurisdiction to adjudicate her claims. See Cal.Code Civ. Proc. § 410.50(b)(“Jurisdiction of the court over the parties and the subject matter of an action continues throughout subsequent proceedings in the action.”).
*576Not only were Bardales and the children living in the same house, but the children were enrolled at all times in the local public schools near their house, and attended the local Catholic Cathedral.
Finally, Duarte conceded she spoke to the children on the telephone by calling the house in San Diego from the date of service, July 9, 2003 up until September 23, 2003, when Bardales changed his number. Duarte also telephoned the two oldest children at their house in San Diego from the time they came to live with Bar-dales in 2001. Duarte does not contend she did not know the location of the two youngest children from July 8, 2003 until September 23, 2003, nor does she explain why she did not file her petition before September 23, 2003. This evidence is more than enough to support the district court’s finding that Bardales did not hide the children from Duarte, and thus she is not entitled to equitable tolling of the one year time period to file the petition.
Evidence the children are well-settled in San Diego
The district court found the children are well-settled in their new home with Bar-dales, and Duarte does not dispute this finding. Although the district court did not give Duarte a hearing on the issue whether the children are well-settled, she does not raise this issue on appeal, and has waived it. All Pacific Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427, 1434 (9th Cir.1993). Further, Duarte never asserts that if she were granted a hearing, she would have any relevant evidence to present on this issue. Furthermore, there was sufficient evidence in the record to support the district court’s finding the children are well-settled in San Diego.
To determine whether a child is settled in his new environment, a court may consider any factor relevant to a child’s connection to his living environment. These factors generally include: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Lops v. Lops, 140 F.3d 927, 945-46 (11th Cir.1998); Koc v. Koc, 181 F.Supp.2d 136, 152-54 (E.D.N.Y.2001).
The two youngest children have lived in San Diego for a majority of their lives. The family has lived in the same house, and the children have attended the same schools the entire time, allowing them to build friendships. The two youngest children have done well in school, as have their older sisters, and their grades have steadily improved each year.
The children have regular contact with extended family, including aunts, uncles, cousins, and their paternal grandparents who live with them. The two youngest children are close to their older sisters, who are themselves settled in San Diego and who are staying in San Diego because Duarte voluntarily dismissed her petition as to these two children.
Bardales is financially stable; he has held the same job since April 2002 and received a good recommendation from his manager. Bardales and his children all attend the local Catholic Cathedral. Medical records demonstrate the children received regular vaccinations and medical care. The children are all U.S. citizens, and Bardales is a legal permanent resident. Finally, the San Diego Superior Court’s custody order awarded sole custody to Bardales.
The majority overlooks the filings by the parties in response to the district court’s *577order to show cause. Duarte did not set forth any further evidence she would be able to produce at a hearing on the sole relevant issues: (1) equitable tolling and (2) whether the children are well-settled. As the district court found, Bardales did not hide the children from Duarte; they were living at the same house where the family had always lived. Nor was there any showing either Duarte or any of her witnesses have proffered any evidence on the issue whether the children are well-settled in San Diego. Thus, any further hearing will be a waste of everyone’s time and money. The district court did not abuse its discretion in failing to conduct a hearing at which no further relevant evidence would be presented. The district court already had all the relevant evidence before it that the parties had to offer.
Finally, the majority implies the district court might have the power to set aside the state court’s custody order and allow Duarte to visit the children. Federal courts do not have jurisdiction to overrule state custody orders. For the district court to attempt to overrule the state court’s custody order would raise issues under claim and issue preclusion, not to mention the full faith and credit clause, 28 U.S.C. § 1738.’4 Duarte’s remedy lies in the California Court of Appeal, not the federal district court, if she wants the custody order modified.
Because it cannot be said that the district court abused its discretion in denying Duarte a hearing, I respectfully dissent.
. Though it is arguably less sad when the mother’s boyfriend, and father of her latest child, stands accused of sexually molesting the children, and the mother fails to deny such charge.
. Although Bardales concedes he removed the two youngest children from Duarte's custody, he asserts it was necessary for their safety. During 2001, Duarte and the children lived with Duarte's boyfriend, Oscar Nunes, and Nunes's son in Mexico. In March 2002, Bar-dales and Duarte’s two oldest daughters came to stay with Bardales in San Diego. They told Bardales that Nunes sexually molested them and they overheard Nunes confess the abuse to Duarte. They have been treated by a psychologist since that time. Bardales believed Duarte still was living with Nunes in 2003 when this action was filed, and was pregnant with Nunes’s child. According to Bardales, he took the two youngest children because he feared Nunes would sexually abuse them. Although Duarte claimed she no longer lived with Nunes, she has not denied that Nunes sexually abused the two oldest girls, nor that she had Nunes’s child, which means Nunes may be in regular contact with Duarte and any children living with her.
. Bardales conceded he wrongfully removed the children, and Duarte conceded she had no evidence as to whether the children were well-settled in San Diego. Thus, the only possible contested issue in the case was whether Bardales hid the children from Duarte, thus preventing her from knowing where to file her petition.
. Under 28 U.S.C. § 1738, "[fjederal courts must give the same preclusive effect to state court judgments that those judgments would be given in that state’s own courts.” Clements v. Airport Auth. of Washoe County, 69 F.3d 321, 326 (9th Cir.1995); see also Allen v. McCurty, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) ("Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so”).