WASHINGTON (CN) — An international custody dispute earned a unanimous ruling from the high court on Wednesday with the justices deciding that if a child would be exposed to serious harm by returning them to their home country, solutions to eliminate that harm do not need to be considered to keep the child in the country where they are safe.
Parents Narkis Golan, an American, and Jacky Saada, an Italian, are fighting for custody of their son, identified as B.A.S. In 2018, Golan took then-2-year-old B.A.S to a wedding in the U.S. but she then decided to stay to seek shelter from the abuse she claims Saada inflicted while they lived together in Italy. Saada sought 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 ruled that B.A.S. had witnessed the abuse of Golan at Saada’s hands and that returning the child to Italy would put him at grave risk. The Second Circuit, however, thought that the lower court did not properly consider ameliorative measures that would allow for B.A.S.’s return to Italy. New ameliorative measures were imposed on remand but Golan sought relief from the high court, claiming the measures were unnecessary because returning a child is not required after grave risk is found.
Justice Sonia Sotomayor wrote the opinion for the court finding that the Second Circuit’s requirement of considering ameliorative measures is not supported by the Hague Convention’s text. The State Department also does not interpret the convention as allowing courts to decide such matters.
“Under the Convention and ICARA, district courts’ discretion to determine whether to return a child where doing so would pose a grave risk to the child includes the discretion whether to consider ameliorative measures that could ensure the child’s safe return,” the Obama appointee wrote.
She continued, “The Second Circuit’s rule, ‘in practice, rewrite[s] the treaty,’ by imposing an atextual, categorical requirement that courts consider all possible ameliorative measures in exercising this discretion, regardless of whether such consideration is consistent with the Convention’s objectives (and, seemingly, regardless of whether the parties offered them for the court’s consideration in the first place).”
The court said that the Second Circuit incorrectly put returning children to their home countries over other objectives within the convention.
“The Convention does not pursue return exclusively or at all costs,” Sotomayor wrote. “Rather, the Convention ‘is designed to protect the interests of children and their parents,’ and children’s interests may point against return in some circumstances.”
While Golan asked the court to reverse the Second Circuit’s ruling, the court instead followed the suggestion of the government to remand.
“The Convention requires courts to make a discretionary determination as to whether to order return after making a finding of grave risk,” Sotomayor wrote. “The District Court made a finding of grave risk, but never had the opportunity to engage in the discretionary inquiry as to whether to order or deny return under the correct legal standard. This Court cannot know whether the District Court would have exercised its discretion to order B. A. S.’ return absent the Second Circuit’s rule, which improperly weighted the scales in favor of return.”
Sotomayor said the district court should move expeditiously since the case has already taken years longer than it should have. She also said the court should keep in mind that the child’s safety is the goal.
“The District Court should determine whether the measures in question are adequate to order return in light of its factual findings concerning the risk to B. A. S., bearing in mind that the Convention sets as a primary goal the safety of the child,” Sotomayor wrote.
Karen King, an attorney with the firm Morvillo Abramowitz Grand representing Golan, said the ruling supports survivors of domestic violence and their children.
"We are delighted by the decision and believe the Supreme Court has provided much needed guidance on the Hague Convention that will hopefully help survivors of domestic violence and their children stay safe," King said.
Saada's attorney, Richard Min with Green Kaminer Min, emphasized the court's call for an expeditious resolution in the case and pointed to findings the district court has previously made that suggest B.A.S. would be protected if he was returned to Italy.
"Although the 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 in an email. "Ameliorative measures are clearly appropriate when they are able to protect children from harm." (Emphasis in original.)
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