Justices will weigh risk-reduction measures in worldwide child-custody disputes
By Amy Howe
on Mar 21, 2022
at 9:29 am
On Tuesday, the justices will hear oral argument in Golan v. Saada, a case involving the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction, an international agreement adopted in 1980 to deal with international child abductions during domestic disputes. Under the convention, children who are wrongfully taken from the country where they live must be returned to that country, so that custody disputes can be resolved there. The rationale behind this mandate is that a parent should not be able to gain an advantage in a custody dispute by abducting the child and taking her to a different country.
The convention carves out an exception to the general return requirement for cases in which there is a “grave risk” that returning the child would expose her to physical or psychological harm. In Golan, the justices agreed to decide whether courts are required to consider all measures that might reduce the grave risk of harm if the child were to return home.
The question comes to the court, as Hague Convention cases often do, in a case involving parents from two different countries. Narkis Golan, a US citizen, married Isacco Saada, an Italian citizen, in 2015; the couple’s child, known only as BAS in court proceedings, was born in Milan in 2016. Saada was abusive toward Golan throughout the marriage, often in front of BAS, but the trial court found that BAS was not the “target” of Saada’s abuse . In 2018, Golan took BAS to the United States to attend a family wedding and did not return, instead remaining in a domestic-violence shelter in New York. Saada went to federal court there, trying to compel BAS’s return to Italy under the convention.
Under the law of the US Court of Appeals for the 2nd Circuit, when a district court concludes that a child’s return would pose a grave risk of harm, the district court must consider measures that would reduce that risk. In May 2020, the district court ordered BAS’s return to Italy with a variety of measures in place to protect him – for example, Saada’s payment of Golan’s expenses for a year, a protective order issued by an Italian court against Saada that included supervised visitation, and therapy and parenting classes for Saada. The court of appeals upheld that order, although it put BAS’s return to Italy on hold to give Golan time to appeal.
Golan went to the Supreme Court, asking the justices to take up her case. After the federal government, in response to a request from the justices for its views, agreed that the Supreme Court should weigh in, the Supreme Court granted Golan’s petition for review in December 2021.
In the Supreme Court, Golan urges the justices to reverse the 2nd Circuit’s ruling and allow BAS to stay in the United States – where, she says, “he has now spent the majority of his life — free from the grave risk he would face in Italy if he were required to return.”
Golan contends that nothing in the text of the convention even suggests, much less supports, the 2nd Circuit’s “categorical rule” requiring district courts to consider measures to reduce the risk. And imposing such measures, she says, is contrary to the convention’s purpose of ensuring that issues relating to a child’s possible return are resolved quickly – without making decisions about custody – and that the child is protected.
Golan concedes that in some cases, measures to reduce the risk may be appropriate if they can be imposed while simultaneously “remaining limited in scope and enforceable by the court making the grave-risk determination.” But, she stresses, when – as in this case and others involving domestic violence – the risk-reduction measures would require “lengthy” and complex proceedings and ongoing protections, the court should instead decline to order the child’s return. In this case, she notes, the trial court took months to formulate a plan for BAS’s return that included measures related to custody, but that plan was still not sufficient to protect BAS If she and her son returned to Italy, she adds, she would have to go to the Italian courts if Saada did not comply with the measures that the US court ordered.
The federal government’s brief echoes Golan’s argument that there is no categorical rule requiring courts to consider measures to reduce risk, and that any measures that courts do order should be “limited in time and scope.” The categorical rule that the 2nd Circuit adopted, the federal government adds, is also inconsistent with the position that the State Department has long taken. The government urges the justices to vacate the lower court’s ruling and send the case back, so that the trial court can make a fresh decision about whether BAS can be safely returned without feeling compelled by the categorical rule.
Saada accuses Golan of trying to take advantage of her move to the United States to block the Italian courts from resolving the couple’s custody dispute, “even though that court is well-equipped to protect BAS from the grave risk of harm caused by domestic violence. ” In fact, he tells the justices, not only has an Italian court “already issued a comprehensive order to protect BAS and Ms. Golan upon their return,” but it has also scheduled a hearing in the custody dispute for June 2022.
The “core premise” of the convention, Saada emphasizes, is “that the interests of children in matters relating to their custody are best served when custody decisions are made in the child’s country of habitual residence.” When considering whether there is a grave risk to the child from return and whether to return the child, Saada continues, courts should consider “all relevant evidence and circumstances concerning the environment in which a child would be returned home” – both evidence that would show a risk and also anything that would reduce that risk. Such an interpretation, he asserts, is the best way to reconcile the convention’s focus on returning the child with its desire to protect the child from a grave risk of harm, “and ensures that the return requirement does not become a ‘dead letter’ in practices.”
Requiring courts to consider risk-reduction measures would not cause unnecessary delay in returning the child, Saada argues, because courts can consider possible protective measures at the same time that they determine whether the child faces a grave risk in the first place. The 2nd Circuit’s rule also would not require courts to make decisions related to custody, he writes, because return orders are simply temporary orders that do not bind the courts in the child’s home country. And Saada stresses that the 2nd Circuit’s rule, requiring courts to consider whether adequate risk-reduction measures are available, does not require the child’s return in every case. “It means only that when measures are available to ameliorate the grave risk, the child should be returned.”
Saada concludes that there is no need for the justices to send the case back to the lower courts because the trial court created an extensive record, and the justices should defer to its factual findings. Instead, he says, the Supreme Court should affirm the district court’s order requiring BAS’s return to Italy.
This article was originally published at Howe on the Court.