Saada v Golan, 2019 WL 1317868 (E.D. New York, 2019)[Italy] [Grave risk of harm] [Undertakings] [Petition granted]

In Saada v Golan, 2019 WL 1317868 (E.D. New York, 2019) the district court granted the petition of Isacco Jacky Saada, against Narkis Aliza Golan, for the return of his two-and-a-half-year-old son, B.A.S., to Italy. 

The 31-year-old petitioner, an Italian citizen, was born and resided in Milan, Italy. The 28-year-old respondent, an American citizen, was born in Brooklyn, New York, and resided in New York. They were married on August 18, 2015, in Tel Aviv, Israel. The parties lived in Italy after the marriage. B.A.S. was born in Milan in June of 2016 and had dual Italian and American citizenship. Mr. Saada and Ms. Golan filled out and signed various documents for B.A.S.; they got him an Italian passport, medical coverage, identification cards, and a certificate of residence. They continued to live in the same apartment, and B.A.S. received all of his medical care in Italy. On July 28, 2017, while she and Mr. Saada were in the United States, Ms. Golan applied for a Social Security card for B.A.S., but did not tell Mr. Saada. Ms. Golan returned to Italy, because Mr. Saada promised to change, “work on” their marriage and go to counseling. On July 18, 2018, Ms. Golan and B.A.S. flew to the United States, with Mr. Saada’s consent, to attend Eldar Golan’s wedding. Although they were scheduled to return to Italy on August 15, 2018, Ms. Golan stayed in New York, and moved to a confidential domestic violence shelter. Ms. Golan claimed that she never agreed to live permanently in Italy or to have B.A.S. live there. But Mr. Saada never agreed to move to the United States. On September 19, 2018, Mr. Saada filed a criminal complaint in Milan, accusing Ms. Golan of kidnapping B.A.S. He initiated this action the next day. He also commenced civil proceedings in Italy. (Mr. Saada subsequently filed for sole custody of B.A.S. in Italy. 

The evidence established that Mr. Saada and Ms. Golan fought frequently, and that Mr. Saada physically, psychologically, emotionally and verbally abused Ms. Golan. He admitted that he slapped, pushed, and grabbed Ms. Golan. He estimated that he slapped Ms. Golan five or six times, pulled her hair three or four times, pushed her four or five times, threw a glass bottle during an argument, yelled, swore, and called her names. He also told Ms. Golan’s family that he would kill her, although he said he made the threat only out of anger. Mr. Saada admitted that he tried to restrain Ms. Golan, got “violent,” was “impulsive,” “los[t] control” when he got “angry,” and hit Ms. Golan “to shut her up.” Mr. Saada and Ms. Golan fought “on a daily basis.” Mr. Saada was “sure” that B.A.S. heard “screaming and fighting and yelling.” Although Mr. Saada was far and away the more violent, there were times when Ms. Golan fought with and yelled at him. She conceded that she scratched and kicked Mr. Saada, and verbally abused him. According to Mr. Saada, Ms. Golan slapped him a few times, scratched him about ten times, bit him about five or six times, spit in his face, kicked him, and often yelled at him. She called him names, insulted his family, and at one point said that she wished his family would die. There was no significant evidence that Mr. Saada was intentionally violent to B.A.S. Ms. Golan frequently left B.A.S. with Mr. Saada while she ran errands, or went out with friends. She also testified that she wants B.A.S. and Mr. Saada to have a relationship. 

The parties called four experts in the area of domestic abuse and its effects on children.
They agreed that domestic violence can have a significant effect on a child, even if the child is not the target of the violence. The experts also agreed that exposure to Mr. Saada’s undisputed violence toward Ms. Golan, including verbal, emotional, psychological, and physical abuse, posed a significant risk of harm to B.A.S. Two experts testified about the Italian legal system’s approach and capacity to handle cases of domestic violence.

          The parties agreed that Ms. Golan removed B.A.S. from Italy with Mr. Saada’s consent, that she retained him in the United States without Mr. Saada’s consent, in breach of Mr. Saada’s “rights of custody,” as defined in Article 5(a) of the Hague Convention, under Italian law, and that Mr. Saada was exercising those rights when Ms. Golan kept B.A.S. in the United States. Mr. Saada proved that Italy was the child’s habitual residence at the time Ms. Golan kept him in the United States. 

The district court noted that the Convention does not define “habitually resident,” but the Second Circuit instructs courts to make the following inquiries: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Gitter, 396 F.3d at 134. “In the easy case,” the parents agree on the child’s habitual residence; in most Hague Convention cases, the parents do not agree on the issue. Id. at 133. “It then becomes the court’s task to determine the intentions of the parents as of the last time that their intentions were shared,” which “is a question of fact in which the findings of the district court are entitled to deference.” Id. The habitual residence inquiry requires consideration of “the unique circumstances of each case.” Holder v. Holder, 392 F.3d 1009, 1016 (9th Cir. 2004).

The Court concluded that Italy was B.A.S.’s habitual residence at the time Ms. Golan kept him in the United States. B.A.S. was born in Italy and lived there until the summer of 2018 when Ms. Golan brought him to the United States. The parties’ only shared residence was in Italy, where they lived for more than a year before B.A.S. was born, and it became B.A.S.’s home as well. He went to pre-school in Italy, his doctors were there, as was his extended family. Before Ms. Golan brought him to the United States, B.A.S. had left Italy only three times, for short trips. See Holder, 392 F.3d at 1020 (“[I]f a child is born where the parents have their habitual residence, the child normally should be regarded as a habitual resident of that country.”).

The Court rejected Ms. Golan’s argument  that she and Mr. Saada never shared a settled intent that Italy would be B.A.S.’s habitual residence, that she conditioned her own residence in Milan on Mr. Saada’s promise to change, a promise he did not keep, and that she and B.A.S. lived in Italy only because Mr. Saada exercised coercive control over her. Ms. Golan’s actions showed that she intended that Italy be B.A.S.’s habitual residence. She established a home with Mr. Saada in Milan, and continued to live there with him after B.A.S. was born. Ms. Golan participated in decisions about B.A.S.’s life in Milan. She and Mr. Saada enrolled him in school, got him a pediatrician, and secured various forms of Italian identification for him. Cf. Guzzo, 719 F.3d at 104-05 (parents agreed mother would have custody of child and child would attend school in New York, mother home-schooled the child in English, and child was insured through Medicaid and received primary medical treatment in the United States). While Ms. Golan might have hoped to move to the United States, her actions established B.A.S. as a habitual resident of Italy. the parties’ last shared intent was to have B.A.S. live in Italy. Thus, Italy was the child’s habitual residence at the time Ms. Golan kept him in the United States.

The court found that Ms. Golan has met her burden of proving one affirmative defense— “grave risk of harm.” The Court pointed out that Article 13(b) of the Convention provides that “a grave risk of harm” from repatriating the child to the country of habitual residence arises “in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar, 720 F.3d at 103 According to the Second Circuit, “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” The grave risk determination includes both “the magnitude of the potential harm” and “the probability that the harm will materialize.” Id. The grave risk exception “is to be interpreted narrowly, lest it swallow the rule.”. The respondent must prove grave risk of harm “by clear and convincing evidence.” 22 U.S.C. § 9003(e)(2)(A).
The Second Circuit instructs courts considering this question to take care to differentiate between “those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences,” and “situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation.” Blondin v. Dubois (“Blondin II”), 238 F.3d 153, 162 (2d Cir. 2001). The former situations are not considered grave risks of harm; the latter are. The grave risk of harm need not take the form of direct physical abuse to the child. A history of spousal abuse “though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse.”); see also Ermini, 758 F.3d at 164–65 (spousal abuse can establish a grave risk of harm to the child in certain circumstances). “[A] sustained pattern of physical abuse and/or a propensity for violent abuse” that poses “an intolerably grave risk to the child” can establish the exception to the preference for repatriation. Souratgar, 720 F.3d at 104 
 However, the history of domestic violence is relevant only “if it seriously endangers the child.” Souratgar, 720 F.3d at 103-104. “The Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm. “Sporadic or isolated incidents” of physically disciplining the child, “or some limited incidents aimed at persons other than the child, even if witnessed by the child” are generally not grave risks of harm. 

There was no dispute that Mr. Saada was violent—physically, psychologically, emotionally, and verbally—to Ms. Golan, or that B.A.S. was present for much of it. Nor was there any dispute that a child who is exposed to domestic violence, even though not the target of abuse, could face a grave risk of harm. Accordingly, Ms. Golan established by clear and convincing evidence that returning the child to Italy would subject the child to a grave risk of harm.

Having found that repatriation posed a grave risk of harm to B.A.S., the court had to  consider whether there are “any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with the child’s repatriation.” Blondin I, 189 F.3d at 248. “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin II, 238 F.3d at 163, n.11. It directed the parties to propose ameliorative measures that could achieve this goal.

Ms. Golan took the position that there were no steps that would protect B.A.S., and no way to ensure that Mr. Saada would comply with them.  Mr. Saada  agreed to the following undertakings:” (1) he will give Ms. Golan $30,000 before B.A.S. is returned to Italy for housing accommodations without restriction on location in Italy, financial support, and legal fees; (2) he will stay away from Ms. Golan until the Italian courts address this issue; (3) he will pursue dismissal of criminal charges against Ms. Golan relating to her abduction of B.A.S.; (4) he will begin cognitive behavioral therapy in Italy; and (5) he waives any and all rights to legal fees or expenses under the Hague Convention and ICARA for the prosecution of this action. In addition, Mr. Saada is to provide the full record of these proceedings, including trial transcripts, court filings, exhibits, undertakings, expert reports, and decisions of this Court to the Italian court presiding over the custody proceeding. Mr. Saada is to provide a sworn statement with the measures he will take to assist Ms. Golan in obtaining legal status and working papers in Italy. Mr. Saada must also drop any current civil actions against Ms. Golan in Italy based on the abduction of B.A.S., and must not pursue any future criminal or civil actions against her in Italy based on the abduction.” 

Based on these undertakings and conditions, which the Court concluded sufficiently ameliorated the risk of harm to B.A.S. upon repatriation, the petition was granted.