Julie R. Colton, a partner at Obermayer Rebmann Maxwell & Hippel LLP, discusses the impact Saada v. Golan on international custody of children in ‘severe risk’ cases will have…
International travel for child custody matters is often complicated. On June 15, 2022, in Saada v. Golan, the US Supreme Court ruled that a court should not consider corrective or safety measures when assessing whether a child should be returned to a country where there is a serious risk got to. The Supreme Court analyzed the application of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) in a case involving the intersection of foreign travel, child custody and domestic violence.
The Hague Convention regulates 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 to get a leg in a custody matter or avoid custody disputes in a country. The Hague Convention is not used to determine custody; its sole purpose is to establish jurisdiction in a custody matter and to facilitate the return of the child. The Hague Convention has been 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 v. Golan, the 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 stayed in the United States with the child and refused to return to Italy with the child.
The father filed a petition in federal court in the United States under the Hague Convention, requesting the child’s return to Italy. The Federal Court found that the child’s habitual residence was Italy. Under the Hauge Convention, habitual residence is the country where the child formerly lived.
Once habitual residence has been established, the Hague Convention generally requires the child to be promptly returned to the habitual residence. Any court proceedings establishing physical and legal custody of a child usually take place before the District Court, after the Hague Convention issues have been resolved.
There are some exceptions to the obligation to return children to their usual place of residence. One of these exceptions is when the child’s return to habitual residence poses a “serious risk”. In the event of a serious risk, the court could “examine all possibilities that could enable the child to be returned safely”. The court can still bring the child back to the country of habitual residence if there is a serious risk. The court can also refuse to return the child because of the grave danger. The Supreme Court has been asked to determine whether the district court needs to address remedies (also called undertakings) that would make the child’s return safer and, if so, to what extent the corrective measures need to be taken into account.
In Saada, the original judgment contained safety provisions in the order to bring the child back to Italy. The district court did not examine or could not examine the enforceability or guarantee of the safety regulations outlined by it. On first appeal, the case was remanded to the trial court to determine the enforceability or compliance of the security provisions.
While on remand at the District Court, a new order was issued that included tested security provisions. These remedies included applying to the competent Italian court for a protection order, prohibiting the father from certain contacts with the mother, including handing over the child to Italian social services, confirming that the child would continue to live with the mother, and securing the die Visits from the father were to be monitored in a neutral room and required psychological counseling from the father. In addition, the district court ordered the father to pay the mother $150,000 to cover her and the costs of returning to Italy. Funds were estimated to cover the expenses of the mother and child until child benefits could be established in Italy.
The father applied to the Italian court for a mirror order enforcing the provisions of the district court’s order pending further litigation in Italy. The Italian court has issued a protection order with the necessary provisions, which is valid for one year from the child’s arrival in Italy and can then be renewed. After demonstrating that the safety provisions were in place and enforceable or guaranteed, the court of first instance ordered that the child should be returned to Italy as the serious risk of injury was reduced and The Hague gave priority to the child’s return.
While the child’s speedy return is a key objective of The Hague, the child’s safety is also important. The Supreme Court ruled that the district court had no opportunity to “conduct a discretionary inquiry as to whether the proper standard of law should be to order or refuse restitution.” Contrary to the lower court’s view, the Supreme Court ruled that there is no obligation to consider remedial action where a serious threat of harm has been determined. Neither the Hague Convention nor ICARA specifically require the consideration of improvement or safety measures. The district court could consider the serious danger and the remedial measures at the same time, but it does not have to. Nor does the district court have to consider what is not presented to the court by counsel or the parties. Both the Hague Convention and ICARA require a timely decision; They do not specifically require a court to address the safety regulations. The Supreme Court considered the additional delay in the case being taken out of pre-trial detention, but ruled that further delay was not sufficient to prevent pre-trial detention. As a result, the Saada case was remanded to the District Court for further processing as part of the proper discretionary investigation. Further proceedings will take place in the District Court to determine whether the child’s return to his or her habitual residence is appropriate.
While the decision is consistent with ICARA, it does not reflect the importance of returning a child to their country of origin. There is a concern that failure to take security measures into account when deciding whether a child should return to their country of origin could be negatively interpreted by other signatory states.
In addition, the United States argued in an amicus brief that the Supreme Court needed to take over the case to resolve the inconsistency found in the way domestic courts ruled on the Hague Convention. This Opinion does not attempt to address the concerns. The Supreme Court leaves it to the domestic courts to decide if and when remedial action should be considered in a serious risk case. Without more specific guidance, disagreement in the decision will persist.
In its amicus brief, the American Academy of Matrimonial advocated considering safeguards, which included analyzing the enforceability, completeness, and urgency that would reduce the serious risk. This ensured that the courts took the safety measures into account and that the safety measures were more than just words on paper.
Finally, the Supreme Court ruling in the Golan v. Saada case is frustrating. It does not contain any further information on how to proceed in cases of serious risk of domestic violence. The report also does not solve the child’s question in the present case; it allows the case to remain in the federal court system and further delays the final decision on the children’s return to the home country.
In cases involving serious risk arguments, the parties and counsel should be prepared to discuss enhanced security measures. Because the Supreme Court leaves the consideration of such appeals to the court’s discretion, the parties and counsel should be prepared to discuss them, even if it is not necessary to do so. You 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 family law practice. She is also an adjunct professor at the University of Pittsburgh, where she teaches family law.
Citation suggestion: 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/.
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