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Monday, December 11, 2023 | Back issues
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Supreme Court adrift in couple’s transcontinental abduction spat

The justices appear uncertain how best to protect a child brought to America by a mother who says their home life in Italy was abusive. 

WASHINGTON (CN) — Grappling with an international custody dispute at the Supreme Court on Tuesday, the justices found themselves uncertain about their own authority to decide such issues. 

“I'm afraid of writing anything,” Justice Stephen Breyer said. “See the problem? ... There are bureaus and there are people who have this as their profession. We’re not a family court. Any word we write is capable of being used in a context in a case where it does not belong.” 

The case sprang from Narkis Golan, an American, who says her husband, Jacky Saada, abused her while they lived together in Italy, his homeland. In 2018, Golan traveled with their then-2-year-old son — identified as B.A.S. — to the U.S. for a wedding. Golan says she decide to stay in the U.S. with B.A.S. after receiving death threats from Saada. Saada in turn petitioned for the return of B.A.S. under the Hague Convention on the Civil Aspects of International Child Abduction — a law requiring a child who is wrongfully removed from their country of residence to be returned to that country. 

A federal judge found that Saada was abusive to Golan in front of B.A.S. and that returning B.A.S. to Italy would put him at grave risk. On appeal, however, the Second Circuit found that the court did not uphold its duty to consider ameliorative measures that would allow for the child's return to Italy.

When the district court imposed new ameliorative measures on remand, Golan brought the case to the Supreme Court, saying nothing in the convention requires courts to return a child once grave risk is found. 

“The Hague Convention provides that a court is not bound to return a child once the grave risk exception is met,” said Karen King, an attorney for Golan with the firm Morvillo Abramowitz Grand. “The district court here, after finding grave risk to this child, was operating under an incorrect rule of law.” 

Urging the justices to vacate the lower court's ruling, the United States has also argued that the Second Circuit’s requirements were not based in the text of the convention. 

“The second circuit requires courts to consider the full range of a myriad of measures in every case involving a finding of grave risk under Article 13 (b),” Frederick Liu, assistant to the U.S. solicitor general, said. “That mandatory rule has no basis in the text of the convention, and, indeed, respondent hasn’t identified any country in the world that has held that the convention imposes such a rule.” 

Saad claims the opposite, however, arguing that it would violate the purpose of the convention if measures to return the child were not considered. 

“The convention's text, context and purpose require that reasonable ameliorative measures be considered when adjudicating these complex family abduction cases,” said Richard Min, an attorney with Green Kaminer Min representing Saada. “To refuse to consider measures that might allow for the safe return of children back to their home country would be an abuse of discretion and would violate the purpose of the convention which is built on a system of mutual trust between signatory nations.” 

The justices appeared to be looking for a narrow ruling on the case. Multiple justices suggested the Second Circuit may have overstepped but struggled to determine what standards courts should be held to. 

“It seems to me that we are in a very unfortunate position because we have a very unrepresentative record and we're trying to develop a rule that applies in more representative cases,” Chief Justice John Roberts said. 

The justices were cognizant of the complex nature of the cases that their ruling might affect, and some seemed hesitant to create a broad new precedent. 

“It seems like in these complex domestic-violence-type cases, all of the risks that you're talking about would be present,” Justice Amy Coney Barrett said. “So would it really be so bad if we try to if we send it back offer something in the way of guidance? Even if it is simply to say, yes, district courts have discretion that should be exercised consistent with ICARA and the Hague Convention; however, given these concerns and how they're often present domestic-violence cases, use caution before going forward with them in that context.” 

In an amicus brief, Hague Convention delegates wrote that the convention does not require courts to consider ameliorative measures when a child is in grave danger and that doing so would conflict with the goal of protecting children. 

“The Convention’s negotiating history and stated purpose underscore that Article 13(b) should promote the child’s best interests,” Amir Tayrani, an attorney with Gibson, Dunn & Crutcher, wrote in the delegates’ brief. “Because the Second Circuit’s rule mandating consideration of ameliorative measures does just the opposite, amici are confident that the drafters never would have intended to impose such a rule.” 

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Categories / Appeals, International, Law

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