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).
[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).