Golan v. Saada: the Recent Supreme Court Attempt to Resolve the Tension Between International Child Abduction and Custodial Rights 

By: Jess Hwang

October 14, 2022

In 1980, the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) was adopted in response to international child abductions in custodial disputes. According to Article 1, the convention’s aim was “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that rights of custody and access under the law of one Contract State are effectively respected in the other Contracting States.” The United States and Italy are two of these Contracting states out of 101 total. 

The Hague Convention has been challenged several times concerning the context of domestic violence. The Convention’s creation was with the underlying assumption that abductors are non-custodial fathers. However, in the domestic violence context, it has been often the mother abductors who join the primary person of care with the father. In such context, courts in the Contracting States are in distress as they were tasked to balance between discouraging child abduction and protecting victims of domestic violence. Some contracting states, including Japan and Switzerland, have added specific provisions on domestic violence in their adjudication of international child abduction. In the U.S., a recent Supreme Court decision Golan v. Saada provided a guideline on how to reconcile the tension between the prevention of international child abduction and rescuing domestic violence victims. 

Justice Sotomayor issued a decision in Golan v. Saada, a custodial dispute between a US citizen mother (“Golan”) and an Italian citizen father (“Saada”). They wed in August 2015 and birthed their son B.A.S in 2016. The family lived in Milan, Italy for the first two years after the son was born. The happiness, however, fell apart shortly. The two fought daily, and their fights involved Saada pushing, slapping, and pulling Golan’s hair. He also verbally abused Golan occasionally, even in front of others. B.A.S. witnessed his father physically and verbally abusing his mother growing up. 

In July 2018, Golan brought B.A.S. to the U.S. for a family event. But instead of returning to Italy, Golan moved into a domestic violence shelter in the U.S. In the following September, Saada filed a complaint in Italy, claiming Golan kidnapped their son. He also filed a petition under the Hague Convention, claiming that the U.S. court should order the return of B.A.S. The lower courts made factual determinations that Italy was B.A.S’ habitual residence and that Golan “wrongfully retained” B.A.S. in the U.S., violating Saada’s custodial rights.  

The lower courts, as well as the Supreme Court of the U.S., based their opinion by first interpreting the text within the statute. Article 3 of the convention finds the child’s retention “wrongful” when “it is in breach of rights of custody attributed to a person,” and “at the time of . . . retention those rights were exercised.” Because Saada was exercising his custodial rights as the father throughout the time B.A.S. was retained in the U.S., Golan violated Article 3 of the convention. The general rule of the Convention is governed by Article 1(a) emphasizing the “prompt return” of the child wrongfully retained. Article 2 also requires the Contracting states to implement “most expeditious procedures available” when determining whether the order return is to be made. Yet the Convention provides an exception in Article 13(b): such return is not required if “there is a grave risk that . . . [child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” 

The district court found that B.A.S’ return to Italy would put him at a “grave risk” stipulated in article 13(b) of the Hague Convention. The court reasoned that Saada’s behavior of abusing Golan upon B.A.S.’s presence is unquestionably violent. Although B.A.S. was not a target of the abuse necessarily, witnessing domestic violence severely impacts a child’s cognitive and social-emotional development and affects the child’s brain functioning. The Italian social services also demonstrated that the family was in “developmental danger.” The court further found that Saada demonstrated no capacity to change his violent behavior as he could not control his anger. 

Nevertheless, the court applied the Second Circuit’s “ameliorative measures” rule in determining the application of the “grave risk” exception and ordered B.A.S.’s return to Italy. Under the rule, the court must propose “ameliorative measures” that may enable the retained child’s safe return. The purpose is to “examine the full range of options that might make possible the safe return of a child to the home country” before denying the return based on “grave risk.” The court concluded there were several ameliorative measures in B.A.S.’s situation. Saada proposed that he would provide Golan with $30,000 of financial support, stay away from Golan until the custody dispute is resolved, dismiss criminal charges against Golan, and attend cognitive behavioral therapy. The court thereby believed these measures would mitigate the gravity of the risk B.A.S. may face. The Second Circuit, however, vacated the order, finding that the District Court erroneously applied the ameliorative measure rule because there was a lack of appropriate enforceable undertakings which would ensure Saada’s compliance with performing the ameliorative measures. Only after the Italian court issued a protective order barring Saada from approaching Golan for one year, the Second Circuit affirmed the district court’s order of B.A.S.’s return. 

The Supreme Court of the US granted the certiorari and held that the application of the ameliorative measure rule by the lower courts was too rigorous as they “examine all possible ameliorative measures” before denying the return of a child. The court rejected the lower courts’ application for the reasons as follows: (1) the emphasis on finding even the slightest ameliorative measure undermines the Convention’s principle of prioritizing a child’s physical and psychological harm, (2) the process of finding these extensive ameliorative measures prolongs the return process and thus forgoes the goal of “prompt return.” Thus, Justice Sotomayor ordered the lower courts to order or deny a return under the correct legal standard. 

The guiding principle from Golan, which is to prevent the courts from exploring unnecessarily extensive measures that may mitigate the risk and to prioritize a child’s physical and mental safety, turns courts’ focus on the child’s interest from its emphasis on the categorical requirement of whether the risk the child faces could be considered a grave one. The guiding principle also is more appropriate for reality as it is unrealistic for courts to not identify one single ameliorative measure. If a child is to be returned due to that single measure that may mitigate the risk without the certainty of the child’s safety, the Convention’s purpose of serving the “interests of children” becomes futile. 

The ruling of Golan may also serve an important function in advocating the children’s safety even outside of the domestic violence context. Under Hague Convention, international child abduction is not merely limited to the removal or retention by a custodial parent. The term “abductor” refers to any “person or institution” that is “alleged to have wrongfully removed or retained a child.” Although Hague Convention’s applicability is limited to civil proceedings, the rationale of Golan may be also applicable to child abduction cases outside of the domestic violence case and outside of the U.S. context. Even in criminal proceedings of international child abduction, more courts are expected to apply the rationale of Golan and prioritize the safety and interest of children. If they do, the Golan rationale may significantly contribute to the well-being of migrant children and children who were abducted for trafficking. Instead of dichotomically ordering the children to return to their home country or to remain in a foreign state, courts would evaluate the interest of each child and adjust an order that protects the child’s interest and safety. The Court in Golan already pointed out the example of such an adjusted solution: “a finding of grave risk as to a part of a country where an epidemic rages may naturally lead a court . . . to consider whether a return to another part of the country is feasible.” 

Nevertheless, the principle in Golan as well as the Hague Convention may be met with criticism because they inevitably render courts immense authority and discretion to determine what entails the interest and safety of children. How would the courts know what the best way would be to protect children? Should they hear from the children-victim directly? Would the children-victim be capable to articulate their concerns? Or should the court establish an arbitrary standard that may not serve the interests and safety of some children? At least within the domestic violence and thereby civil proceedings, Justice Sotomayor proffered that courts should consider ameliorative measures raised by the person in custody or clearly suggested by the circumstances of the case, such as a localized epidemic. Thus, by Justice Sotomayor narrowing the focus of the courts, courts may not raise arbitrary measures which do not clearly impact the child or have not been raised by their custodial parents or legal guardians. 

Golan is an important legal stepping stone for the international community to redirect their attention to children in their interpreting of existing law. The case also implicitly urges the community to produce more laws protecting the rights, interests, and safety of children, in both criminal and civil proceedings. As mentioned, the Hague Convention is severely limited in power because it only governs civil proceedings. The rationale and ruling of Golan, therefore, may not be applicable in criminal child abduction cases. Thus, there needs to be a legal mechanism that helps Golan to be extended in criminal proceedings. 

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