On June 15, 2022, the United States Supreme Court issued an opinion interpreting and discussing the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).^[i] The case, Golan v. Saada, is one of the rare instances of the United States Supreme Court interpreting the Hague Convention, and the Court’s unanimous decision provides additional insight into how the Hague Convention may be applied in future international custody disputes arising in the United States.

A Brief Overview of the Hague Convention on the Civil Aspects of International Child Abduction

Numerous countries around the world began adopting the Hague Convention in order to address the problem of international child abductions during domestic disputes.^[ii] Currently, there are 101 countries, including the United States, that are signatories to the Hague Convention.^[iii]

As between countries that are signatories to the Hague Convention (sometimes referred to as “Contracting States”), the Hague Convention generally mandates the “prompt return” of a child to the child’s country of habitual residence in the event the child has been wrongfully removed to or retained in another country.^[iv] Under the Hague Convention, a removal or retention is “wrongful” when it breaches existing custody rights under the law of the State in which the child was habitually resident immediately before the removal or retention, if those rights “were actually exercised” or “would have been so exercised but for the removal or retention.”^[v]

In the United States, Congress implemented the Hague Convention in 1988 through its passage of the International Child Abduction Remedies Act (“ICARA”), a federal law that is binding on all states in the United States.^[vi] Under ICARA, state courts and federal district courts throughout the United States have concurrent original jurisdiction to hear cases brought under the Hague Convention for the return of a child alleged to have been wrongfully removed or retained from their country of habitual residence.^[vii]

Once a court of competent jurisdiction finds the Hague Convention to be applicable in a case due the party petitioning for the child’s return establishing by a preponderance of the evidence that the child was wrongfully removed or retained from the country of habitual residence, the court generally must order that the child be promptly returned to the country of habitual residence unless the other parent successfully establishes a defense to return.^[viii]

Although there are generally five different defenses to return that are available under the Hague Convention and ICARA, the case of Golan v. Saada focused specifically on one of the five defenses – namely, the defense that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.” Under ICARA and the Hague Convention, this particular defense must be proven by clear and convincing evidence.^[ix]

You can read a more detailed discussion of the defenses to return under the Hague Convention and ICARA in International Custody and the Hague Convention.^[x]

The Facts of Golan v. Saada

The case of Golan v. Saada centers around Ms. Narkis Golan (a United States citizen), Mr. Isacco Saada (an Italian citizen), and their son, B.A.S. The parties married in Milan, Italy in August 2015. B.A.S. was born in the summer of 2016 in Milan, Italy, and the family lived there for the first two years of B.A.S.’ life. The trial court found that the parties’ “relationship was characterized by violence from the beginning,” including Saada physically abusing Golan in front of B.A.S.^[xi]

In July 2018, Golan travelled to the United States with B.A.S. to attend her brother’s wedding. Instead of returning to Italy after the wedding, Golan moved into a domestic violence shelter with B.A.S. Saada filed a criminal complaint for kidnapping in Italy and initiated a civil custody proceeding in relation to B.A.S. in September 2018. Saada also filed a petition under the Hague Convention and ICARA in the U.S. District Court for the Eastern District of New York (the “District Court”), seeking the return of B.A.S. to Italy.

Following a 9-day bench trial, the District Court found that Italy was the country of B.A.S.’ habitual residence, but that returning B.A.S. to Italy “would expose him to a grave risk of harm” due to various acts of domestic violence and abuse Saada inflicted upon Golan during the time the parties lived in Italy together with B.A.S. Following the precedent set forth by the United States Court of Appeals for the Second Circuit, the District Court “nonetheless ordered B.A.S.’ return to Italy” after it had “examine[d] 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.”^[xii]

After the District Court’s imposition of certain “ameliorative measures” as a condition for B.A.S.’ return to Italy, and an appeal to the United States Court of Appeals for the Second Circuit, the District Court ultimately concluded that sufficient “ameliorative measures” existed to order B.A.S.’ return to Italy under ICARA and the Hague Convention. These “ameliorative measures” included the issuance of a protective order barring Saada from approaching Golan for one year by the Italian court overseeing the underlying custody dispute, as well the Italian court ordering that an Italian social services agency was to oversee Saada’s parenting classes and therapy and that the visits between Saada and B.A.S. be supervised. After the District Court’s decision, the Second Circuit affirmed the District Court’s judgment.

Following all of these developments, Golan petitioned the United States Supreme Court for review, and the Supreme Court granted certiorari “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.”^[xiii]

The Holding of Golan v. Saada

In a unanimous decision, the Supreme Court vacated the judgment of the Second Circuit and remanded the case to the District Court to make its decision using the correct legal standard, with the understanding that it would “move as expeditiously as possible to reach a final decision without further unnecessary delay.”^[xiv] The Supreme Court first noted that, under the Hague Convention, when “‘a child has been wrongfully removed or retained’ from his country of habitual residence, Article 12 of the Hague Convention generally requires the deciding authority to ‘order the return of the child.’”^[xv]

The Supreme Court also noted, however, that under Article 13(b) of the Hague Convention, a court “‘is not bound to order the return of the child’ if the court finds that the party opposing return has established that return would expose the child to a ‘grave risk’ of physical or psychological harm.”^[xvi] The Supreme Court found that this portion of the Hague Convention essentially leaves a district court with discretion to grant or deny return after a grave-risk finding, and that nothing in the Hague Convention’s text either forbids or requires consideration of “ameliorative measures” in exercising that discretion.

Importantly, the Supreme Court held that, under the Hague Convention and ICARA, a district court’s discretion to determine whether to return a child where doing so would pose a grave risk to the child includes the discretion whether to consider ameliorative measures that could ensure the child’s safe return.^[xvii] The Supreme Court further concluded that the Second Circuit’s requirement of “imposing an atextual, categorical requirement that courts consider all possible ameliorative measures in exercising this discretion, regardless of whether such consideration is consistent with the Convention’s objectives,” impermissibly “‘rewrite[s]’” the Hague convention, and was therefore unlawful.^[xviii]

Therefore, under the Supreme Court’s holding in the case of Golan v. Saada, a district court does not have an obligation under the Hague Convention to consider ameliorative measures that have not been raised by the parties, but it should nevertheless address ameliorative measures raised by the parties or clearly suggested by the circumstances of the case.^[xix] Additionally, a district court’s consideration of ameliorative measures “must be guided by the legal principles and other requirements set forth in the [Hague] Convention and ICARA.”^[xx]

The Supreme Court also found that the Hague Convention’s objectives and requirements constrains a district court’s discretion to consider ameliorative measures in at least three ways: (1) any consideration of ameliorative measures must prioritize the child’s physical and psychological safety; (2) consideration of ameliorative measures must abide by the Hague Convention’s requirement that “courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute;” and (3) “any consideration of ameliorative measures must accord with the [Hague] Convention’s requirement that courts act expeditiously in proceedings for the return of children.”^[xxi]

In sum, the Supreme Court’s unanimous decision in Golan v. Saada is significant because it gives federal district courts an increased amount of discretion over whether children must be returned to their country of habitual residence after a grave-risk finding. In addition, the Supreme Court’s opinion in this case further explains the application of the Hague Convention and ICARA in cases where one party is utilizing the ”grave risk” defense in an effort to avoid the return of a child to the country of habitual residence. In the coming months and years, the full legal impact of the case of Golan v. Saada on Hague Convention cases should become clearer.

If you believe the Hague Convention and ICARA may apply to you, you should seek the legal advice of an experienced international custody attorney immediately. Legal issues surrounding the Hague Convention and ICARA are usually very complex and can often be time-sensitive, and promptly seeking legal advice to understand your legal options is paramount.

Contact a Nashville attorney with Cole Law Group today at 615-490-6020 to schedule a consultation and learn about legal rights and protections that may be available to you under the Hague Convention and ICARA in Tennessee.

ABOUT THE AUTHOR: Andy Goldstein

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States District Court for the Middle District of Tennessee, the United States District Court for the Western District of Tennessee, the United States District Court for the Eastern District of Tennessee, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

^[i] Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11.

^[ii] Abbott v. Abbott, 560 U.S. 1, 8 (2010).

^[iii] Hague Conference on Private Int’l Law, Convention of 25 Oct. 1980 on the Civil Aspects of Int’l Child Abduction, Status Table, https://www.hcch.net/en/instruments/conventions/status-table/?cid=24.

^[iv] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 2) (citing Art. 1(a), Hague Convention, at 7; Art. 12, Hague Convention, at 9).

^[v] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 2) (citing Art. 3, Hague Convention, at 7).

^[vi] 22 U.S.C. § 9001 et seq.

^[vii] 22 U.S.C. § 9003(a).

^[viii] 22 U.S.C. § 9003(e)(1)-(2).

^[ix] 22 U.S.C. § 9003(e)(2)(A).

^[x] https://www.colelawgrouppc.com/international-custody-and-the-hague-convention.html.

^[xi] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 4).

^[xii] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 6).

^[xiii] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 8).

^[xiv] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 16).

^[xv] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 8) (internal citations omitted).

^[xvi] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 9) (internal citations omitted).

^[xvii] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 10-11).

^[xviii] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 11) (internal citations omitted).

^[xix] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 11).

^[xx] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 11-12).

^[xxi] Golan v. Saada, 596 U.S. _____ (2022) (slip op., at 12-13) (internal quotations omitted).

At the outset, some of the most significant changes brought about by the new law concern restrictions on the ability of government and private businesses to require individuals to provide proof of having received a COVID-19 vaccination. Specifically, the new law states that “[a] private business, governmental entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.”¹ Importantly, the new law contains a broad definition of “private business,” and includes individuals, sole proprietorships, corporations, limited liability companies, partnerships, trusts, associations, and non-profit entities.² In addition, the new law contains a broad definition of “adverse action,” and includes discrimination “against a person by denying the person employment, privileges, credit, insurance, access, products, services, or other benefits.”³ As a result, under the new law, most private businesses and governmental entities in Tennessee are prohibited from requiring any individual from providing proof of vaccination in the event the person objects to receiving a COVID-19 vaccine for any reason, and this prohibition is applicable to employees, customers, or just about any individual who accesses products or services of a private business or covered governmental entity. 

Nevertheless, the new law does contain several important exceptions to the general prohibition of requiring proof of having received a COVID-19 vaccination. The new law does not prevent the implementation of COVID-19 vaccine mandates for Medicare and Medicaid providers, or assisted-care living facilities, federal government contractors or subcontractors, schools, or employers that submit notice in writing to the comptroller of the treasury that compliance with the new law would result in a loss of federal funding.⁴ Moreover, the new law does not prohibit “a place of entertainment” in Tennessee from requiring proof of a negative COVID-19 test in order to gain admission, or to allow a person to voluntarily provide proof of vaccination or proof of COVID-19 antibodies in lieu of presenting a negative COVID-19 test in order to gain admission to a “place of entertainment.”⁵ 

The new law also addresses the implementation of mask mandates throughout much of Tennessee. Under the new law, with certain exceptions, governmental entities are no longer permitted to “require a person to wear a face covering as a condition to access the governmental entity’s premises or facilities, or to receive the benefits of the governmental entity’s products or services, unless severe conditions exist and the requirement is in effect for no more than fourteen (14) days.”⁶ The new law further defines “severe conditions” to mean that: (1) the Governor of Tennessee has declared a state of emergency for COVID-19; and (2) a county has an average rolling fourteen-day COVID-19 infection rate of at least 1,000 new known cases of COVID-19 for every 100,000 residents of the county based on the most recent data published by the department of health.⁷ When “severe conditions” do not exist, many governmental entities are also prohibited from requiring employees from wearing a face covering as a term or condition of employment, or from taking an adverse action against an employee for failing to wear a face covering.⁸ 

In order for a school to implement a mask mandate under the new law, “severe conditions” must exist, the school’s governing body must adopt a policy requiring all persons on school property to wear a face covering, and the school must provide face coverings meeting the U.S. National Institute for Occupational Safety and Health N95 classification of air filtration for persons 12 years of age and older.⁹ Even if these requirements are met, the new law does not permit schools to require a person to wear a face covering if the person provides documentation from the person’s healthcare provider that wearing a face covering is contraindicated for the person, or if the person objects to wearing a face covering because of the person’s sincerely held religious belief.¹⁰ As with the implementation of COVID-19 vaccine mandates under the new law, there are several exceptions to the prohibitions on the implementation of mask mandates set forth in this article, including for Medicare or Medicaid certified providers, entities operating on property owned, managed, or secured by the federal government, and healthcare providers.¹¹ Also, and very importantly, the new law does not prohibit private employers or businesses from requiring face coverings for employees, customers, or any other members of the public receiving services. 

Beyond significantly curtailing the ability of many government entities and private businesses from implementing COVID-19 vaccine and other similar mandates, the new law makes several other noteworthy changes to Tennessee law. The new law permits certain individuals to receive unemployment retroactively if they left employment because of a failure or refusal to receive a COVID-19 vaccine when it was previously required by their employer.¹² Furthermore, except in certain cases of minors subjected to abuse or dependent and neglected children, the law restricts the ability of healthcare providers to administer a COVID-19 vaccine to a minor without first obtaining written consent from the minor patient’s parent or legal guardian.¹³ Moreover, the law limits civil liability for deaths “arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.”¹⁴ 

Importantly, the new law also contains an enforcement mechanism in the event of violations. Specifically, the new law creates a private right of action for injunctive relief, compensatory damages, and reasonable attorneys’ fees for any aggrieved person against an alleged violator.¹⁵ By its own terms, the new law terminates on July 1, 2023.¹⁶ 

The precise contours or Tennessee’s new COVID-19 law have yet to be fully litigated in the courts, and there are still several areas of uncertainty regarding the new law’s enforceability and constitutionality. Nevertheless, there can be little doubt that Tennessee’s new COVID-19 law has already had a profound impact on Tennessee’s response to the COVID-19 pandemic, and the new law’s effects will likely continue to be felt by private businesses, employers, employees, government entities, and many more until at least July 1, 2023. 

If you think Tennessee’s new COVID-19 law may impact you or a loved one, you should seek the legal advice of a knowledgeable attorney immediately. During these uncertain times, it is extremely important to seek the assistance of a legal professional to learn your legal rights and obligations as Tennessee continues to navigate through the COVID-19 pandemic. Contact a Nashville attorney with Cole Law Group today at 615-490-6020 to schedule a consultation and learn about how Tennessee’s new COVID-19 law may impact you. 

ABOUT THE AUTHOR: Andy Goldstein 

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well. 

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author. 

_________________________________

¹ Tenn. Code Ann. § 14-2-102(a).

² Tenn. Code Ann. § 14-1-101(15). Notably, the new law does not define a “private business” to include schools, Medicare or Medicaid certified providers, certain healthcare providers enrolled in Medicare or Medicaid, or certain assisted-care living facilities.

³ Tenn. Code Ann. § 14-1-101(1)(A). Moreover, the definition of “adverse action” in the new law also means to “discharge, threaten, or otherwise discriminate against an employee in any manner that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.”

⁴ Tenn. Code Ann. § 14-6-102.

⁵ Tenn. Code Ann. § 14-2-102(b).

⁶ Tenn. Code Ann. § 14-2-103(a)(1).

⁷ Tenn. Code Ann. § 14-1-101(20).

⁸ Tenn. Code Ann. § 14-2-103(a)(2).

⁹ Tenn. Code Ann. § 14-2-104.

¹⁰ Tenn. Code Ann. § 14-2-104(c).

¹¹ Tenn. Code Ann. § 14-1-101(8).

¹² Tenn. Code Ann. § 14-3-101.

¹³ Tenn. Code Ann. § 14-4-103(a)-(b).

¹⁴ Tenn. Code Ann. § 14-5-101.

¹⁵ Tenn. Code Ann. § 14-6-103.

¹⁶ Tenn. Code Ann. § 14-6-104.

Discovery is the formal pre-trial process through which each party in a civil lawsuit may discover legal evidence and facts about the case from the opposing party or parties and witnesses. In Tennessee, discovery is governed by the Tennessee Rules of Civil Procedure and, in many cases, by local rules as well. The general scope of discovery is quite broad. “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action…”¹ Both Plaintiffs and Defendants should use the discovery process in an effort to prove their claims and defenses and disprove the claims and defenses of the opposing party. The court may limit discovery in certain circumstances.²

There are four main types of discovery that will be utilized in most civil cases:  interrogatories, request for production of documents, requests for admission, and depositions.³

What Are Interrogatories?

Interrogatories are written questions. These questions can be as simple as, “How many countries have you lived in?” Or they could be more complex such as, ” List all sources of income for the past five years.” The rules require that interrogatories be answered separately, and that the person responding to the questions is under oath that the responses are correct to the best of the responder’s knowledge, information, or belief. In some cases, the responder may not know the answer to a question. If that circumstance occurs, it is acceptable for the responder to state something to the effect of, “After a reasonable review of all relevant information, the responder is unaware of the answer to this question.”

Am I Required to Hand Over Documents to the Opposing Party?

Requests for Production of Documents asks the opposing party to produce documents responsive to the requests. Knowing what to request is an art and a science. Your attorney will request documents that help prove your claims and defenses if they exist. In many cases, it is appropriate to ask for the production of correspondence, including emails and text messages that may contain something relevant to the lawsuit.

When responding to a request for production of documents, you should forward any information that may be responsive to the requests to your attorney. He or she will determine what should be included and ensure that no privileged communications are produced.

Must I Respond to Requests for Admission During Discovery?

Requests for admission is a set of statements, or allegations, sent from one party to the opposing party involved in civil litigation. Requests for Admission ask the responder to admit whatever is stated.⁴ Tennessee Rule of Civil Procedure 36.01 states in part: “Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party’s attorney…” ⁵ T.R.C.P. 36.02 further explains what the effect of admitting is on the current case and does not apply to other unrelated cases. In essence, it is conclusively established for the current case and does not apply for any other purpose.

What Should I Expect In a Deposition?

A Deposition is a proceeding during which one party’s attorney asks another party or a witness questions under oath. Depositions are usually oral; however, the Tennessee Rules of Civil Procedure also allow depositions upon written questions.⁶ Customarily there are many participants in a deposition. A court reporter will likely be there to transcribe the deposition. Sometimes there are videographers that take a video of the proceeding. Several attorneys may attend, including at least one to represent each of the parties in the case. Both parties are allowed to attend depositions in Tennessee civil cases.

Depositions can be key to understanding the case for the attorneys and the parties. Listening to an opposing party’s deposition responses can provide the trained attorney with a better gauge of the case. For example, if the opposing party appears calm, collected, and presents compelling narrative responses, your attorney may be concerned that such a party would be quite effective in front of the jury. However, if a hostile witness’ story sounds less convincing with each question answered, it may strengthen your case. Having an experienced attorney represent you during your deposition is important. Your attorney will understand when to object and advise you if there are times you should not answer a question.

Why Is Timing and Strategy Important During the Discovery Process?

The timing and strategy of discovery is something that a skilled civil litigation attorney considers in every case. Complications not addressed by this introductory article but which can occur during the process include discovery of electronically stored information (ESI), claims of privilege, sanctions, what to do when an opposing party fails to respond, how to identify abuse of the discovery process, etc. In some cases, with smaller amounts in controversy, the anticipated cost of extensive discovery is not economically viable. On the other extreme, there are some cases where so much is at stake that the scope and expense of discovery is practically limitless.

In all sorts of litigation, your attorney should be there to counsel you in what is appropriate to request in the discovery process, what must be responded to in discovery, and when objections should be made. Attorneys who know how to navigate the discovery process and offer the proper guidance and advice will prove invaluable to a civil litigation client.

If you need legal guidance regarding discovery in your current or prospective lawsuit, reach out to our team of experienced Nashville civil litigation attorneys today at (615) 490-6020.  We will help you navigate, litigate, and resolve your legal issue.

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¹ T.R.C.P. 26.02. https://www.tncourts.gov/rules/rules-civil-procedure/2602

² T.R.C.P. 26.02(1).

³ See T.R.C.P. 26.01. https://www.tncourts.gov/rules/rules-civil-procedure/2601

⁴ See T.R.C.P. 36. https://www.tncourts.gov/rules/rules-civil-procedure/3601

⁵ T.R.C.P. 36.01.

⁶ T.R.C.P. 31.01. https://www.tncourts.gov/rules/rules-civil-procedure/3101