It is pretty rare that the United States Supreme Court weighs in on family law matters. Thus, I’m surprised I didn’t hear more about its June 15, 2022 decision in Golan v. Saada. That case addressed how the federal district courts should apply an exception to return under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) when “there is grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Art. 13(b).
Under the Hague Convention, the general rule is that children should be returned to the country of their regular residence or which is exercising jurisdiction over their custody. However one exception this general rule is that a court can refuse to return a child when such return would provide a grave risk of harm. United States federal courts have created an “ameliorative measures” carve out to the grave risk exception. Golan addresses how to balance the two.
In Golan, Mother, a United States citizen, met Father in Italy. They married in Italy and bore the son at issue. It is undisputed that there was much domestic violence between the couple, often in front of their son. When the child was two years old, Mother flew with him to the United States for a wedding and, rather than return to Italy, moved into a domestic violence shelter. Father petitioned in the United States District Court of the Eastern District of New York for the return of his son. After a seven day trial, the District Court determined that returning son to Italy would present a grave risk of harm. However, Second Circuit precedent obligated the court to “‘examine the full range of options that might make possible the safe return of a child to the home country’” before it could “‘deny repatriation on the ground that a grave risk of harm exists.’” The District Court crafted measures that would “reduce the occasions for violence,” thereby ameliorating the grave risk to son sufficiently to require his return.
Mother appealed to the Secord Circuit, which vacated the order, finding the District Court’s measures insufficient to mitigate the risk of harm to son. However the Second Circuit found that record did “not support the conclusion that there exist no protective measures sufficient to ameliorate the grave risk of harm.” It therefore remanded the matter to the District Court to “consider whether there exist alternative ameliorative measures that are either enforceable by the District Court or supported by other sufficient guarantees of performance.”
On remand the District Court took nine months to explore more rigorous options before again ordering son’s return to Italy. Mother appealed and the Second Circuit affirmed. Mother petitioned the Supreme Court for certiorari, which granted it “to resolve a division in the lower courts regarding whether ameliorative measures must be considered after a grave-risk finding.”
Writing for a unanimous court, Justice Sotomaor noted, “[n[]othing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion” to not order the return of a child at “grave risk.” Thus, it held “consideration of ameliorative measures is within a District Court’s discretion.” It further held:
[C]onsideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. The Convention and ICARA prohibit courts from resolving any underlying custody dispute in adjudicating a return petition. Accordingly, a court ordering ameliorative measures in making a return determination should limit those measures in time and scope to conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.
Citation omitted.
Finally, it held “any consideration of ameliorative measures must accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children.”
The Supreme Court concluded by remanding the matter back to the District Court:
The Convention requires courts to make a discretionary determination as to whether to order return after making a finding of grave risk. 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. Accordingly, it is appropriate to follow the ordinary course and allow the District Court to apply the proper legal standard in the first instance.
To summarize Golan: in deciding whether to return a child at grave risk, a District Court may consider ameliorative measures but the Hague Convention does not require return if such measure could render return safe. Any such consideration of ameliorative measures must be done expeditiously.
