An appeals court misinterpreted an international child abduction treaty in a custody dispute by ordering that a child who is a dual citizen of the U.S. and Italy, and had been living in Italy, should be returned to that country for the courts there to decide custody, the Supreme Court heard March 23.

The case is Golan v. Saada, court file 20-1034.

The case involves the Hague Convention on the Civil Aspects of International Child Abduction, a 1980 treaty regarding international child abductions that take place during domestic disputes. It provides that children wrongfully removed from the country where they reside have to be sent back to that country so that custody disputes may be adjudicated there.

The theory is that a parent should not be allowed to “gain an advantage in a custody dispute by abducting the child and taking her to a different country,” according to Amy Howe at SCOTUSblog. “The convention carves out an exception to the general return requirement for cases in which there is a ‘grave risk’ that returning the child would expose her to physical or psychological harm.”

In the case at hand, the Supreme Court agreed to consider whether, in such situations, courts must look at what lawyers call ameliorative measures “that might reduce the grave risk of harm if the child were to return home,” Howe wrote.

Petitioner Narkis Aliza Golan, a U.S. citizen, married respondent Isacco Jacky Saada, an Italian citizen, in 2015. Their child, B.A.S., born in Italy in June 2016, is a dual citizen of the U.S. and Italy. When they lived in Italy, Saada physically and emotionally abused Golan on a regular basis, according to Golan’s petition (pdf).

In 2018, Golan and child traveled stateside for a family wedding. This enraged Saada, who threatened her life and to take the child away from her, the petition said. Golan remained in the U.S. and stayed in a domestic violence shelter. Saada asked a U.S. district court to return the child to Italy.

The court found in March 2019 that “returning [B.A.S.] to Italy would subject [him] to a grave risk of harm,” but despite that finding, ordered the child returned to Italy. Saada agreed to stay away from Golan, dismiss abduction charges he filed against her in Italy, and begin cognitive therapy.

Golan appealed, and the U.S. Court of Appeals for the 2nd Circuit held, citing its own precedent, that the district court must consider all “remedies that might allow both the return of the children to their home country and their protection from harm.”

The case went back to the district court, which reached an agreement with an Italian court. The foreign court granted a one-year protection order saying child welfare agencies there would monitor interactions between father and child, and charges against the mother would be dropped. The U.S. district court found this abated the “grave risk,” and that the child could go overseas with the mother. The 2nd Circuit upheld the order and Golan appealed.

Justice Clarence Thomas is in hospital, but Chief Justice John Roberts said that he would, nonetheless, participate in the case.

Golan’s attorney, Karen R. King, told the Supreme Court during oral arguments that the 2nd Circuit erred in its finding that the district court “must examine the full range of potential ameliorative measures and return the child if at all possible.”

This requirement does not appear in the Hague Convention or its implementing legislation and “runs counter” to its “purposes and framework, which emphasize expeditious proceedings, the safety of the child, and not getting entangled in custody matters,” the lawyer said.

“It’s contrary to the long-standing views of the State Department,” King added. “And no other signatory nation has adopted that interpretation of this treaty.”

A “safe and swift resolution” would have “allowed the child to remain in the U.S. in the interim, while the custody proceedings deal with the complex family issues … in this case, including the  implications of Mr. Saada’s sustained and horrific abuse.”

Justice Samuel Alito asked King if there are “circumstances in which you think a district court could order the return of the child, who would be at grave risk?”

King said, under the Hague Convention, which “places child safety as the paramount interest,” returning “a child after finding that there’s clear and convincing evidence of grave risk is … fundamentally antithetical to the convention.”

Alito said: “I think that’s a strong argument.” Because the International Child Abduction Remedies Act (ICARA) of 1988 implementing the Convention does not address this, “could it not be done by the courts in the case law interpreting it?”

Frederick Liu of the U.S. Department of Justice said the 2nd Circuit “misunderstood the scope” of its discretion and was wrong to insist on adopting its own rule on top of ICARA. He urged the Supreme Court to vacate the circuit court’s decision and remand the case for further proceedings.

Roberts suggested that the case has dragged on for too long–three and a half years—“under a Convention that is designed to get this resolved quickly.”

Saada’s lawyer, Richard Min, told the court it was time to resolve the custody dispute.

The treaty “is not about who should have custody but, rather, where those decisions should be made,” Min said.

“The Italian courts have already issued orders protecting this child, and they have … scheduled a hearing in June to address issues of custody.”

This article by Matthew Vadum appeared March 22, 2022, in The Epoch Times.