Golan v. Saada, ___U.S.___, (Supreme
Court, June 15, 2022)
[Italy][Petition granted][Ameliorative measures] [Vacated and remanded]
Petitioner Narkis Golan was a citizen of the United States. She
met respondent Isacco Saada, an Italian citizen, while attending a wedding in
Milan, Italy, in 2014. Golan soon moved to Milan, and the two wed in August
2015. Their son, B. A. S., was born the next summer in Milan, where the family
lived for the first two years of B. A. S.’ life. The two fought on an almost daily basis and,
during their arguments, Saada would sometimes push, slap, and grab Golan and
pull her hair. Saada also yelled and swore at Golan and frequently insulted her
and called her names, often in front of other people. Saada once told Golan’s
family that he would kill her. Much of Saada’s abuse of Golan occurred in front
of his son. In July 2018, Golan flew with B. A. S. to the United States to
attend her brother’s wedding. Rather than return as scheduled in August,
however, Golan moved into a domestic violence shelter with B. A. S. In
September, Saada filed in Italy a criminal complaint for kidnapping and
initiated a civil proceeding seeking sole custody of B. A. S.
Saada also filed a petition under the Convention and ICARA in
the U. S. District Court for the Eastern District of New York, seeking an
order for B. A. S.’ return to Italy. The District Court granted Saada’s
petition after a 9-day bench trial. As a threshold matter, the court determined
that Italy was B. A. S.’ habitual residence and that Golan had wrongfully
retained B. A. S. in the United States in violation of Saada’s rights of
custody. The court concluded, however, that returning B. A. S. to Italy would
expose him to a grave risk of harm. The court observed that there was “no
dispute” that Saada was “violent—physically, psychologically, emotionally, and
verbally—to” Golan and that “B. A. S. was present for much of it.” The court
described some of the incidents B. A. S. had witnessed as “chilling.” While
B. A. S. was not “the target of violence,” undisputed expert testimony
established that “domestic violence disrupts a child’s cognitive and
social-emotional development, and affects the structure and organization of the
child’s brain.” Records indicated 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.”
The court found that Saada had demonstrated no “capacity to change his
behavior,” explaining that Saada “minimized or tried to excuse his
violent conduct” during his testimony and that Saada’s “own expert
said . . . that [Saada] could not control his anger or take
responsibility for his behavior.”
The court nonetheless ordered B. A. S.’ return to Italy based
on Second Circuit precedent obligating it to “ ‘examine the full range of
options that might make possible the safe return of a child to the home
country’ ” before it could “ ‘deny repatriation on the ground that a
grave risk of harm exists.’ ” The Second Circuit based this rule on
its view that the Convention requires return “if at all possible.” Blondin I, 189
F. 3d, at 248. To comply with these precedents, the District Court had
required the parties to propose “ ‘ameliorative measures’ ” that
could enable B. A. S.’ safe return. 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. The court concluded that these measures, combined with the fact
that Saada and Golan would be living separately, would “reduce the occasions
for violence,” thereby ameliorating the grave risk to B. A. S. sufficiently to
require his return.
The Second Circuit vacated the return order,
finding the District Court’s ameliorative measures insufficient. Because
the record did not support concluding that no sufficient ameliorative measures
existed, the Second Circuit remanded for the District Court to consider whether
such measures, in fact, existed. After an examination over nine months, the
District Court identified new ameliorative measures and again ordered
B. A. S.’ return. The Second Circuit affirmed.
The Supreme Court, in a unanimous opinion by
Justice Sotomayor held that a 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 once the court has found that return
would expose the child to a grave risk of harm. The discretion to courts under
the Convention and ICARA includes the discretion to determine whether to
consider ameliorative measures that could ensure the child’s safe return. Justice
Sotomayor found that the Second Circuit’s rule, by instructing district courts to
order return “if at all possible,” improperly elevated return above the Convention’s
other objectives. Blondin I, 189
F. 3d, at 248. The Convention does not pursue return exclusively or at all
costs. Rather, the Convention “is designed to protect the interests of children
and their parents,” Lozano,
572 U. S., at 19 (Alito, J., concurring), and
children’s interests may point against return in some circumstances. Courts
must remain conscious of this purpose, as well as the Convention’s other
objectives and requirements, which constrain courts’ discretion to consider
ameliorative measures in at least three ways.
First, any consideration of ameliorative measures must
prioritize the child’s physical and psychological safety. A court may decline
to consider imposing ameliorative measures where it is clear that they would
not work because the risk is so grave. Sexual abuse of a child is one
example of an intolerable situation. Other physical or psychological
abuse, serious neglect, and domestic violence in the home may also constitute
an obvious grave risk to the child’s safety that could not readily be
ameliorated. A court may also decline to consider imposing ameliorative measures
where it reasonably expects that they will not be followed.
Second, consideration of ameliorative
measures should 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. A court ordering ameliorative measures in making a
return determination should limit those measures in time and scope to
conditions that would permit safe return, without purporting to decide
subsequent custody matters or weighing in on permanent arrangements.
Third, any consideration of ameliorative
measures must accord with the Convention’s requirement that courts act
expeditiously in proceedings for the return of children. Timely resolution
of return petitions is important in part because return is a “provisional”
remedy to enable final custody determinations to proceed. 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. Consideration
of ameliorative measures should not cause undue delay in resolution of return
petitions.
Justice Sotomayor summarized the Courts holding as follows: “
…although nothing in the Convention prohibits a district court from
considering ameliorative measures, and such consideration often may be appropriate,
a district court reasonably may decline to consider ameliorative measures that
have not been raised by the parties, are unworkable, draw the court into
determinations properly resolved in custodial proceedings, or risk overly
prolonging return proceedings. The court may also find the grave risk so
unequivocal, or the potential harm so severe, that ameliorative measures would
be inappropriate. Ultimately, a district court must exercise its discretion to
consider ameliorative measures in a manner consistent with its general
obligation to address the parties’ substantive arguments and its specific
obligations under the Convention. A district court’s compliance with these
requirements is subject to review under an ordinary abuse-of-discretion
standard.”
In this case, the District Court made a
finding of grave risk, but never had the opportunity to inquire whether to
order or deny return under the correct legal standard. It was appropriate to
allow the District Court to apply the proper legal standard in the first
instance, see Monasky v. Taglieri, 589 U. S.
___, ___. The Court held that the District Court should determine whether the
measures considered are adequate to order return in light of the District
Court’s 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. The
order of the Second Circuit was vacated and the case remanded.
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