The Supreme Court unanimously ruled in favor of an American mother on June 15, finding that a U.S. appeals court was wrong to find that her Italian-born child should be returned to his abusive father in Italy despite the risk to which the child may be exposed by doing so.
When a U.S. court determines that sending an abducted child to another country where the child would be at risk, the courts don’t have to consider whether things can be done to reduce those risks, Justice Sonia Sotomayor wrote in the high court’s opinion (pdf) in Golan v. Saada, court file 20-1034.
The case dates to 2015 when U.S. citizen Narkis Aliza Golan, the petitioner, married her husband, respondent Isacco Jacky Saada, an Italian citizen. Their child, B.A.S., born in Italy in June 2016, is a dual citizen of the United States and Italy. When they lived in Italy, Saada physically and emotionally abused Golan on a regular basis, Golan stated in her petition (pdf).
In 2018, Golan and B.A.S. visited the United States for a family wedding, which enraged Saada, who threatened to kill her and take the child away, the petition said. Golan remained stateside and lived in a domestic violence shelter.
Saada filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction and under the U.S. statute that implemented it, called the International Child Abduction Remedies Act (ICARA), asking the U.S. District Court for the Eastern District of New York to return the child to Italy. Saada also filed a criminal kidnapping complaint in Italy and started a civil proceeding there seeking sole custody of the child, according to court documents.
The U.S. district court found Saada was “violent—physically, psychologically, emotionally, and verbally—to” Golan, and the child “was present for much of it,” although not “the target of violence.” Saada showed no “capacity to change his behavior,” the court added.
The district court ruled in Saada’s favor, finding in March 2019 that Italy was the child’s habitual residence and Golan had wrongfully kept the child in the United States, violating Saada’s custody rights, even though it acknowledged returning the child to Italy “would subject [him] to a grave risk of harm.” Saada agreed to stay away from Golan, dismiss abduction charges he had filed against her in Italy, and begin cognitive therapy.
Golan appealed, and the U.S. Court of Appeals for the 2nd Circuit ruled 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 district court then 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 Saada and B.A.S. Charges against the mother would also be dropped, the pact stated. The district court found that this abated the “grave risk” and that the child could go overseas with the mother. The 2nd Circuit affirmed and Golan appealed.
Sotomayor’s opinion vacated the judgment of the 2nd Circuit and remanded the case “for further proceedings consistent with this opinion.”
“Under the Hague Convention on the Civil Aspects of International Child Abduction, if a court finds that a child was wrongfully removed from the child’s country of habitual residence, the court ordinarily must order the child’s return. There are, however, exceptions to that rule. As relevant here, a court is not bound to order a child’s return if it finds that return would put the child at a grave risk of physical or psychological harm,” Sotomayor wrote.
“The Second Circuit’s categorical requirement to consider all ameliorative measures is inconsistent with the text and other express requirements of the Hague Convention,” the justice added.
Golan’s lawyer, Karen R. King of the New York firm Morvillo Abramowitz Grand Iason and Anello P.C., welcomed the ruling.
“We are very pleased by the Supreme Court’s decision and hope the guidance provided by the Court will lead to greater recognition of the complexities and dangers of domestic violence, including the physical and psychological impact on children,” King told The Epoch Times by email.
Saada’s lawyer, Richard Min of the New York firm Green Kaminer Min and Rockmore LLP, also found things to like in the opinion.
The decision “emphasized the need for expeditious resolution of international child abduction cases … stating that, on remand, it ‘trusts that the District Court will move as expeditiously as possible to reach a final decision without further unnecessary delay,’” Min said in a statement forwarded by his publicist to The Epoch Times.
The district court has already ruled twice that B.A.S. should be returned to Italy, the attorney added.
Although the Supreme Court “reversed the long standing Second Circuit rule requiring consideration of ameliorative measures in cases where there is a grave risk of harm to children, it also supported the position that ‘a district court … ordinarily should address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case … ’ and that ‘nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate.’”
Min said, “Ameliorative measures are clearly appropriate when they are able to protect children from harm.”
This article by Matthew Vadum appeared June 16, 2022, in The Epoch Times.