Julie R. Colton, partner at Obermayer Rebmann Maxwell & Hippel LLP, discusses the impact that Saada v. Golan will have on international custody of children in cases of “serious risk”…
International childcare travel is often complicated. On June 15, 2022, the United States Supreme Court ruled in Saada c. Golan Heights that a court need not consider ameliorative or safety measures when assessing whether a child should be returned to a country where there is a serious risk. The Supreme Court analyzed the application of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) in a case that involves the intersection of foreign travel, child custody and violence domestic.
The Hague Convention governs the return of children when they are taken to other countries during a custody dispute. The purpose of The Hague is to prevent the removal of children in order to get a head start in a custody case or to avoid a custody dispute in a country. The Hague Convention is not used to determine custody; it merely serves to establish jurisdiction over custody and facilitate the return of the child. The Hague Convention was implemented in the United States through the passage of the International Child Abduction Remedies Act (ICARA), which helps interpret the Hague Convention.
In the case of Saada c. Golan Heights, Mother and Father lived in Italy for the first two years of the child’s life. The mother traveled from Italy to the United States with the child to attend a wedding. The mother then remained in the United States with the child, refusing to return to Italy with the child.
The father filed a lawsuit in federal court in the United States under the Hague Convention and requested that the child be returned to Italy. The Federal District Court determined that the child’s habitual residence was Italy. According to the Hauge Convention, the habitual residence is the country in which the child has historically lived.
When a habitual residence has been determined, the Hague Convention generally requires the prompt return of the child to his or her habitual residence. Any legal proceedings that determine the physical and legal custody of a child usually take place in the local court after the Hague Convention issues have been resolved.
There are a few exceptions to the requirement for children to return to their habitual residence. One of these exceptions concerns the case where the return of the child to his habitual residence presents a “serious risk”. If a serious risk is present, the court can then “consider the full range of options that could make the safe return of the child possible”. The court can always return the child to the country of his habitual residence even in the event of a serious risk. The court can also refuse the return of the child because of the serious risk. The Supreme Court was asked to consider whether the district court should deal with ameliorative measures (also called recognizances) that would make the child’s return safer and, if so, what degree of consideration such ameliorative measures would have. improvement should be granted.
In saada, the initial decision included security provisions in the order for the return of the child to Italy. The district court had not verified, or could not verify, the applicability or guarantee of the security provisions it set forth. On first appeal, the case was sent back to the trial court to determine the applicability or guarantee of the security provisions.
On remand to the District Court, a new order was issued which provided for security arrangements which have been verified. Some of these ameliorative measures included applying to the competent Italian court for a protection order prohibiting the father from certain contact with the mother, including that the child be entrusted to Italian social services, confirming that the child would continue to live with the mother. , ensuring father visits were to be supervised in a neutral space and required psychological counseling for the father. Additionally, the district court ordered the father to pay the mother $150,000 to cover his and the child’s expenses to return to Italy. The funds have been estimated to cover the expenses of the mother and child until maintenance can be established in Italy.
The father applied to the Italian court for a mirror order which applied the terms of the district court order pending further litigation in Italy. The Italian court issued a protection order with the necessary provisions which would last for one year from the arrival of the child in Italy and would then be renewable. After proving that the safety arrangements were in place and were enforceable or guaranteed, the trial court ordered that the child be returned to Italy as the serious risk of harm was mitigated and The Hague is prioritizing the return of the child. ‘child.
While the prompt return of the child is a key objective of The Hague, the safety of the child is also important. The Supreme Court held that the district court had no opportunity “to initiate a discretionary inquiry to determine whether to order or deny return under the proper legal standard.” Contrary to the opinion of the lower court, the Supreme Court held that there is no obligation to consider ameliorative measures when a serious risk of harm has been established. Neither the Hague Convention nor ICARA specifically require consideration of enhancement or security measures. The district court could consider serious risk and ameliorative measures simultaneously, but it is not required to do so. Nor does the district court need to consider what is not presented to the court by attorneys or parties. The Hague Convention and ICARA both call for a timely decision; they do not specifically require a court to consider security provisions. The Supreme Court considered the additional time for the referral of the case, but determined that additional time was not sufficient to prevent the referral for proper review. Therefore, the saada the case was remanded to the district court for further processing in the proper discretionary investigation. Further proceedings will take place in the District Court to consider whether the return of the child to his or her habitual residence is appropriate.
While the ruling may be consistent with ICARA, it does not reflect the importance of returning a child to their country of origin. It is feared that failure to take security measures into account when determining whether a child should return to their country of origin could be interpreted negatively by other signatory countries.
In addition, the United States argued in an amicus brief that the Supreme Court should take up the case to resolve the inconsistency found in the way domestic courts had ruled on the Hague Convention. This review is not intended to resolve the issue. The Supreme Court leaves it to national courts to determine if and when ameliorative measures should be considered in a serious risk case. Without more specific guidelines, the inconsistency of decisions will continue.
In its amicus brief, the American Academy of Matrimonial Lawyers argued for the review of security measures, which included analyzing the applicability, completeness and stringency with which the risk serious would be reduced. This allowed the courts to consider security measures and ensure that security measures were more than just words on paper.
Ultimately, the Supreme Court’s decision in Golan vs Saada is frustrating. It does not provide further guidance on how to proceed in high-risk cases involving domestic violence. Nor does the notice resolve the issue of the child in this case; this allows the case to continue to languish in the federal court system and further delays the final decision on the children’s return to their home country.
In cases involving a serious risk argument, parties and attorneys should be prepared to discuss enhancing security measures. As the Supreme Court leaves the consideration of such remedies to the discretion of the court, the parties and the lawyers must be prepared to discuss them even if they are not necessary. We don’t want to show up unprepared. The lack of clear direction increases the burden on parties and lawyers.
Julie R. Colton is a partner at Obermayer Rebmann Maxwell & Hippel LLP, where she focuses her practice in family law. She is also an adjunct professor at the University of Pittsburgh, where she teaches family law.
Suggested quote: Julie R. Colton, SCOTUS Addresses Domestic Violence in International Child Custody, JURIST – Professional Commentary, September 2, 2022, https://www.jurist.org/commentary/2022/09/julie-colton-scotus-international-child- custody /.
This article was prepared for publication by Hayley Behal, co-editor of JURIST commentaries. Please direct your questions or comments to him at [email protected]
The opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the opinions of JURIST’s editors, staff, donors, or the University of Pittsburgh.