As published in the January/February 2023 issue of the Tennessee Bar Journal
The U.S. Supreme Court’s recent decision, Golan v. Saada, 596 U.S. ___, 142 S. Ct. 1880 (2022), interpreted the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA) 22 U.S.C. § 9001-11. The Opinion penned by Justice Sonia M. Sotomayor for an undivided court, held that “once [a] court has found that return would expose the child to a grave risk of harm,” the court “is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country.”1
History
In 2014, Narkis Golan, a U.S. citizen, met Isacco Saada, an Italian citizen at a wedding in Milan, Italy.2 The parties wed in August 2015, and their son, B.A.S. was born the following summer in 2016, in Milan, where B.A.S. resided with both parents for the first two years of B.A.S’s life. The parties’ relationship was characterized by violence, and much of Saada’s abuse of Golan occurred in front of the parties’ son. In the opinion, it is noted that the pattern of abuse by Saada “as found by the District Court, [was] not in dispute.”3
In July 2018, Golan and B.A.S. flew to the United States to attend her brother’s wedding with B.A.S., who was then two years old, but did not return in August as scheduled. In September 2018, Saada filed a civil proceeding for sole custody of B.A.S. and a criminal complaint for kidnapping charges against Golan. Saada further filed a petition pursuant to the Hague Convention and the International Child Abduction Remedies Act (ICARA) 22 U.S.C. § 9001-11.4 in the U.S. District Court for the Eastern District of New York. The U.S. District Court determined that Italy was the habitual residence of B.A.S immediately before the wrongful removal and retention of B.A.S. in the United States in violation of Saada’s rights of custody.”5 The U.S. District Court held “that returning B.A.S. to Italy would expose him to a grave risk of harm,” and found that Saada was irrefutably “‘violent — physically, psychologically, emotionally and verbally — to’ Golan” in the child’s presence.6 The U.S. District Court described some of the incidents witnessed by the child as “chilling,” and noted in its opinion that “Italian social services, who had been involved with the couple while they lived in Italy, had also concluded that ‘the family situation entails a developmental danger for B.A.S.’” Further, Saada’s own expert found that Saada “could not control his anger to take responsibility for his behavior.”7
Despite finding “a grave risk of harm” existed to this child, the U.S. District Court stated it was bound by Second Circuit Court precedent, which required the return of a child to a home country “if at all possible” based on a “full range of options that might make possible the safe return of a child.”8 As a result, the court ordered the parties to “propose ‘ameliorative measures’ that could form the basis of a ‘safe return’” for the child. The U.S. District Court accepted and adopted Saada’s proposal. “Saada had proposed that he would provide Golan with $30,000 for expenses pending a decision in Italian courts as to financial support, stay away from Golan until the custody dispute was resolved, pursue dismissal of the criminal charges he had filed against Golan, begin cognitive behavioral therapy and waive any right to legal fees or expenses under the Convention.” 9
Based on the foregoing proposal, “combined with the fact that Saada and Golan would be living separately,” the U.S. District Court found that such measures ameliorated the grave risk it previously found to B.A.S. and ordered his return to Italy.10
On appeal, the U.S. Court of Appeals for the Second Circuit vacated the U.S. District Court’s order for Golan to return the child to Italy, finding “the District Court’s measures insufficient to mitigate the risk of harm to B.A.S.”11 The Second Circuit further determined that the District Court’s factual findings provided “ample reason to doubt that Mr. Saada [would] comply with these conditions,” and “the record did not support the conclusion that there exist no protective measures sufficient to ameliorate the grave risk of harm B.A.S. face[d] if repatriated.”12 The Second Circuit remanded and directed the U.S. District Court to determine if alternative ameliorative measures were capable of being enforced or supported by other means to “guarantee” performance.13
On remand the District Court, over the span of nine months, conducted a time consuming and “extensive examination of the measures available to ensure B.A.S.’s safe return to Italy,” before directing the parties to seek the assistance of Italian courts.14 At the instruction of the District Court and upon the parties’ petition, an Italian court issued a protective order for Saada to stay away from Golan for a period of one year. The Italian court further ordered an Italian social services agency to monitor Saada’s parenting classes and therapy and required all visits between Saada and B.A.S. to be supervised.15 The District Court then held that the foregoing, additional measures were sufficiently ameliorative to prevent harm to B.A.S. and entered an additional order for Saada to pay Golan $150,000 to facilitate B.A.S’s return to Italy and to cover their living costs to resettle in Italy.16
The Second Circuit affirmed, finding that “the District Court did not clearly err in determining that Saada likely would comply with the Italian protective order, given his compliance with other court orders and the threat of enforcement by Italian authorities of its order.”17 The U.S. Supreme Court then granted certiorari upon appeal by Golan, “to decide whether the Second Circuit properly required the District Court, after making a grave-risk finding, to examine a full range of possible ameliorative measures before reaching a decision as to whether to deny return, and to resolve a division in the lower courts regarding whether ameliorative measures must be considered after a grave-risk finding.”18
Supreme Court Decision
The Supreme Court began its review of the lower court’s interpretation of the Hague Convention based on its plain text. The Supreme Court cited that “Article 13(b) lifts the Convention’s return requirement” set forth under Article 12, and leaves “a court with the discretion to grant or deny return.” The Court determined that whether there is a grave risk “is separate from the question whether there are ameliorative measures that could mitigate that risk,” and the Convention and ICARA, leaves it in the district courts’ discretion “whether to consider ameliorative measures that could ensure the child’s safe return.19
In doing so, the Supreme Court rejected Saada’s principal argument that the consideration of a full range of ameliorative measures is “implicit in the Convention’s command that the court make a determination as to whether a grave risk of harm exists.”20 The Court noted that “[n]othing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion…Nor does ICARA, which, as relevant, instructs courts to ‘decide the case in accordance with the Convention.’”21
The Supreme Court then addressed limitations on a district court’s discretion to consider “ameliorative measures raised by the parties or obviously suggested by the circumstance of the case.”22 The Convention does not pursue return exclusively or at all costs, as “the Convention is designed to protect the interests of children and their parents.”23 The Court further opined that while considering ameliorative measures “often may be appropriate,” such “consideration of ameliorative measures must be guided by the legal principles and other requirements set for in the Convention and ICARA,” as these principles and other requirements “constrain courts’ discretion to consider ameliorative measures.”24
In its opinion, the Supreme Court focused on and explained certain principles and requirements that constrain courts’ ability “to consider ameliorative measures in at least three ways.”25 The first consideration cited by the Supreme Court asserts that any “ameliorative measures must prioritize the child’s physical and psychological safety”…“in addition to other interests.” The Supreme Court went on to note that a court could “decline to consider imposing ameliorative measures where it is clear that they would not work because the risk is so grave, such as when there is evidence of sexual abuse of a child.26 Further, the court could also decline to impose certain ameliorative measures “where it reasonably expects that they will not be followed.”27
The second consideration and limitation cited is the principle that courts must “abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute.”28 The Supreme Court notes that if a court orders ameliorative measures when ordering the return of a child, such determination “should limit those measures in time and scope to the conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.”29
The third and final consideration and limitation cited by the Supreme Court is the principle that any ameliorative measures must “accord with the Convention’s requirement that courts ‘act expeditiously in proceedings for the return of children,’” noting that “return is a provisional remedy to enable final custody determinations to proceed.”30 The Supreme Court further noted that a “requirement to ‘examine the full range of options that might make possible the safe return of a child’…is in tension with this focus on expeditious resolution,” as “[c]onsideration of ameliorative measures should not cause undue delay in resolution of return petitions.”31
The Supreme Court ultimately vacated the judgment of the United States Court of Appeals for the Second District and remanded the case to the District Court to “determine whether the measures in question are adequate to order return in light of its factual findings concerning the risk to B.A.S., bearing in mind that the Convention sets as a primary goal the safety of the child.”32 In its holding, the Supreme Court reasoned that “[t]he District Court made a finding of grave risk, but never had the opportunity to engage in the discretionary inquiry as to whether to order or deny return under the correct legal standard.” The Supreme Court further reasoned that it could not “know whether the District Court would have exercised its discretion to order B.A.S.’ return absent the Second Circuit’s rule, which improperly weighted the scales in favor or return.”33
Aftermath
On remand, the District Court upheld its previous decision, which required the return of B.A.S. to Italy, noting that it would have exercised its discretion to consider ameliorative measures absent the Second Circuit’s previous rule.34 The District Court determined “that under the circumstances of this case, it [was] appropriate to consider, as a matter of discretion, whether the existence of ameliorative measures…[made] it possible for B.A.S. to return safely to Italy.”35 The District Court further concluded that the “measures already implemented by the Italian Courts” were “sufficient to ameliorate the risk to B.A.S. that [she] identified in 2019 — specifically, being exposed to domestic violence between the petitioner and the respondent.” In its discussion, the District Court noted that “the circumstances of this case ‘obviously suggest’ the ameliorative measures already in place, and that “the details of those measures, as well as their existence, [were] part of the ‘extensive’ factual record in [the] case.”36 The District Court went on to state that “it would make no sense at this point — when the Italian courts have undertaken significant steps to protect B.A.S. and the respondent — to ignore the ‘months of intercession and the implementation of protections by the Italian courts.’”37
On Oct. 18, 2022, approximately six weeks after the District Court entered its opinion, Golan was found dead in her New York home.38 Golan’s death remains under investigation, and her family has asked others to refrain from speculating about her death at this time, as “the battle is not over,” and “[t]here’s still a lot of work to be done.”39 |||
MARLENE ESKIND MOSES is a partner at Gullett Sanford Robinson & Martin, and formerly was manager and founder of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is the immediate past president of the International Academy of Matrimonial Lawyers and is on the executive committee of the American College of Family Trial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.
ANSLEY OWENS TILLETT practices law in Middle Tennessee and is a graduate of Belmont University College of Law. Tillett is part of the family law practice at Gullett Sanford Robinson and Martin PLLC in Nashville and co-chair of the NBA Domestic Committee.