Saada v Golan, 2023 WL 1993538 (E.D. N.Y., 2023) - [Italy][ motion to amend the petition and add Morin Golan as a respondent granted.]

 

    In Saada v Golan, 2023 WL 1993538 (E.D. N.Y., 2023) the district court adopted Sections III, IV, V and VI of Judge Levy’s Report and Recommendation and reserved decision on Sections I and II.

 

          In 2018, the respondent, the mother of the minor B.A.S., abducted him from Italy and brought him to New York. On September 20, 2018, the petitioner, B.A.S.’s father, brought a petition pursuant to the Hague Convention. After a nine-day bench trial in early 2019, the district court found that B.A.S. was a habitual resident of Italy, and that while he would be subject to grave risk of harm upon repatriation arising from domestic violence between his parents, there were sufficient measures that would ameliorate the risk. Saada v. Golan, No. 18-CV-5292, 2019 WL 1317868, at *20 (E.D.N.Y. Mar. 22, 2019) (“Saada I”). The Supreme Court’s June 2022 decision held that the Second Circuit could not require district courts to consider ameliorative measures after a grave risk finding, but that district courts could do so as a matter of discretion. Golan v. Saada, 142 S. Ct. 1880, 1895 (2022). The Court remanded the case to clarify whether the court  would have considered ameliorative measures as a matter of discretion, and 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.” On August 31, 2022, using the Supreme Court’s framework, the district court granted the petition for a third time and ordered that B.A.S. be returned to Italy. Saada VII, 2022 WL 4115032, at *1. The respondent appealed that order to the Second Circuit.

 

While the appeal was pending, the respondent passed away unexpectedly on October 18, 2022. Two days later, on October 20, 2022, apparently without any contact with the petitioner, the respondent’s sister, Morin Golan, filed an ex parte petition in King’s County Family Court (the “Family Court,”) seeking custody of B.A.S. In particular, she stated that she wished “to have full custody of [B.A.S.],” and was “filing for emergency custody of the child, to allow more time to figure out the future and allow the child to process the recent traumatic events[.]”Although the Family Court judge was aware of the existence of this proceeding and of the existing orders of the Italian Court, it did not contact Italian authorities as required by New York Domestic Relations Law § 76-c. Instead, it granted temporary custody to Morin Golan, issued a protective order against the petitioner, and appointed the Children’s Law Center (“CLC”) to represent B.A.S. in connection with the Family Court proceedings.

 

On November 10, 2022, the Second Circuit dismissed the respondent’s appeal as moot, vacated the August 31, 2022 return order, and remanded the petition “with confidence” that this Court would “expeditiously address the Hague Convention petition in light of the changed circumstances.” In re B.A.S., 2022 WL 16936205, at *1. The Second Circuit also directed the Court to “entertain any motions for intervention or substitution of parties.”.

 

On November 16, 2022, Morin Golan moved to intervene in this matter pursuant to Federal Rule of Civil Procedure (“FRCP”) 24. (ECF No. 172.) CLC followed suit on November 30, 2022, seeking in the alternative to be appointed as B.A.S.’s guardian ad litem) On December 8, 2022, the petitioner moved to substitute Morin Golan as a respondent pursuant to FRCP 25, or to amend the petition under FRCP 15(a)(2) to add her as a respondent. The petitioner opposed CLC’s motion to intervene. In a separate submission, the petitioner moved to vacate the Family Court orders and to transfer B.A.S. to his care in New York during these proceedings.

 

On December 4 and 20, 2022, the district court referred the motions to Magistrate Judge Robert M. Levy. In his January 23, 2023 Report and Recommendation, Judge Levy recommended that I deny the motions for substitution and intervention, but grant the petitioner’s request to amend the petition to add Morin Golan as a respondent and to vacate the Family Court orders. In addition, Judge Levy recommended that the petitioner’s request for temporary custody of B.A.S. during the pendency of these proceedings be referred to the Italian court. On February 6, 2023, Morin Golan, CLC and the petitioner filed objections to Judge Levy’s report and recommendation. For the reasons below, I adopt Judge Levy’s Report and Recommendation in part, and reserve decision on whether to vacate the emergency orders of the Family Court and grant the petitioner temporary custody, because the parties cite facts in their objections that were not before Judge Levy.

 

 

In reviewing a report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A party’s objections must be specific; where a party “makes only conclusory or general objections, or simply reiterates [the] original arguments, the Court reviews the [R & R] only for clear error. The district judge must evaluate proper objections de novo and “may accept, reject, or modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3). “[E]ven in a de novo review of a party’s specific objections, [however,] the court will not consider ‘arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance. Moreover, “the district court is ‘permitted to adopt those sections of a magistrate judge’s report to which no specific objection is made, so long as those sections are not facially erroneous.’ ”

 

In light of recent developments, including in the Italian courts, which post-date Judge Levy’s Report and Recommendation, the court reserved judgement on the vacatur of the Family Court orders and temporary custody of B.A.S. pending a conference with the petitioner and Morin Golan, which will be scheduled in a separate order.

 

Judge Levy recommended that the court deny the petitioner’s motion to substitute Morin Golan as a respondent. Judge Levy observed that “Narkis Golan’s interest in defending against the Petition was extinguished upon her death; therefore, her estate does not have an interest in this case,” and concluded that Morin Golan could not be substituted as a party under FRCP 25 for this reason. The petitioner did not object to Judge’s Levy recommendation. Instead, Judge Levy recommended that the district court  grant the petitioner leave to amend the petition pursuant to FRCP 15(a) to add Morin Golan as a respondent, because the amendment was in the interests of justice, and would not cause undue delay or prejudice, a recommendation to which Morin Golan did not object. Finding no clear error in this analysis, the court adopted Judge Levy’s recommendation that the petitioner’s motion for substitution be denied, and that the motion to amend be granted.

 

The petitioner’s motion to amend the petition and add Morin Golan as a respondent was granted. The petitioner’s motion to substitute Morin Golan as a respondent, and the motions by the Children’s Law Center and Morin Golan to intervene were denied. The Court defered ruling on the petitioner’s motion to vacate the orders of the Kings County Family Court and requesting temporary custody over B.A.S. during the pendency of these proceedings.

 

1	A more complete factual and procedural history of this case before September 2022 is described in. Saada v. Golan, No. 18-cv-5292, 2022 WL 4115032, at *2-4, (E.D.N.Y. Aug 31, 2022) (“Saada VII”).