Justices broaden trial courts’ discretion in child-custody disputes underneath Hague Conference


By Amy Howe

at 5:32pm

The Supreme Court on Wednesday gave federal trial courts more discretion over whether children in some international custody disputes must be returned to their home countries. The unanimous decision in Golan v. Saada was the latest in a series of cases interpreting the Hague Convention on the Civil Aspects of International Child Abduction, an international agreement adopted in 1980 to deal with international child abduction during domestic disputes.

Under the Hague Convention, children who are wrongfully taken from the country where they live must be returned to that country so that custody disputes can be resolved there. The convention carves out an exception to this general return requirement, however, for cases in which there is a “grave risk” that returning the child would expose her to physical or psychological harm. In a decision written by Justice Sonia Sotomayor, the justices ruled that when a court finds that there is such a grave risk, it can – but is not obligated to – consider whether there are any ways to reduce that risk, so that the child can still return home.

The question came to the court in a dispute between Narkis Golan, a US citizen, and Isacco Saada, an Italian citizen. Golan and Saada were married in 2015, and Golan gave birth to the couple’s son, known only as BAS in court proceedings, in Italy the following year. Saada was physically abusive to Golan throughout the couple’s marriage, eventually prompting her to take BAS to the United States for a wedding. When she did not return, Saada went to federal court, seeking to compel BAS’s return to Italy under the convention.

The district court found that, because of Saada’s abuse, BAS would be exposed to a grave risk of psychological harm if he were returned to Italy. Under the law of the US Court of Appeals for the 2nd Circuit, the district court was then required to consider ways to reduce that risk. In May 2020, the district court ordered BAS’s return to Italy, with several measures – including supervised visitation, therapy, and parenting classes for Saada – in place to protect him. When the 2nd Circuit upheld that order, Golan came to the Supreme Court, which in December agreed to weigh in.

The 2nd Circuit’s categorical requirement that courts must always consider all measures that will reduce the risk of harm is, the Supreme Court ruled on Wednesday, “inconsistent with the text and other express requirements of the Hague Convention.” Although as a general rule the Hague Convention requires the district court to order a child’s return to his home country, Sotomayor explained, the convention also gives the district court discretion to grant or deny return when the court concludes that the child would face a grave risk of harm if returned. There is nothing in the convention, she stressed, that either prohibits or requires the consideration of measures to reduce that risk.

Sotomayor made clear that although district courts are not required to consider measures to reduce the risk of grave harm, they should nonetheless generally address measures that the parents suggest. She added two other caveats. First, district courts should limit themselves to addressing measures intended to ensure that the child is safely returned, without infringing on the role of foreign courts in resolving the custody dispute itself. Second, any consideration of possible measures to allow the child to return safely should move quickly.

The justices sent the case back to the district court for it to take another look at whether BAS should be returned to Italy. Sotomayor acknowledged that the district court had determined that BAS would face a grave risk of harm if returned, but she explained that, under the 2nd Circuit’s categorial rule, the district court “never had the opportunity to engage in the discretionary inquiry as to whether to order or deny return under the correct legal standard.” Sotomayor conceded that remanding the case to the district court would “add further delay to a proceeding that has already spanned years longer than it should have,” but she urged the lower court to “move as expeditiously as possible to reach a final decision without further delay.”

This article was originally published at Howe on the Court.

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