The US Supreme Court in Washington, DC, on March 21, 2022. The US Senate will take up the historic nomination of Justice Ketanji Brown Jackson on March 21, 2022 as the first black woman to serve on the Supreme Court.
The US Supreme Court on Tuesday heard hearings in a case about international child abductions taking place in the context of domestic disputes — including in this specific case of a custody battle.
The as Golan v. Saada’s stylized case involves the mother of a child identified in court documents as “BASS” They were born in Milan, Italy, in 2016. The child’s mother is Narkis Golan, a US citizen. The child’s father is Isaac Saada, an Italian citizen. Saada and Golan married in 2015, and Saada quickly became abusive to Golan before the child, according to a district court in New York.
“Saada yelled, punched, punched and pushed Golan,” the lower court’s findings read. “He called their names and pulled their hair. Once he threw a glass bottle at her and also threatened to kill her.”
After about two years, Golan traveled to the United States for a wedding in 2018 and never returned to Italy – instead opting to live with her child in a domestic violence home in New York. Saada then filed a case in federal court to compel Golan to return BAS to Italy under the rules of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention requires custody disputes to be resolved in an affected child’s country of residence to prevent parents fleeing abroad to seek legal advantage. However, there is an exception in cases where there is a “serious risk” that returning a child to his or her country of origin would result in physical or psychological harm.
Under the legal standard adopted by the U.S. Court of Appeals for the Second Circuit, the district court found that BAS could be repatriated to Italy if protective measures were taken, such as B. Saada attending therapy and parenting courses and paying Golan’s living expenses. The Second Court of Justice affirmed that the lower court’s decision had faithfully applied its interpretation of the Convention.
Golan appealed this ruling directly to the nation’s Supreme Court, arguing that the Second Circuit’s interpretive rule was not found in the text of the convention and was inappropriate, particularly in the context of established domestic violence.
During the hearing, the judges (still without a supposedly ailing but recovering judiciary Clarence Thomas) have been largely preoccupied with how to word their decision precisely so as to preserve the discretion of the district courts without providing cumbersome guidance. The specific nature of domestic violence cases cited throughout the survey.
Justice Sonja Sotomayor questioned how courts might have abused their powers in such cases when the first priority of the Convention is to return children to their place of habitual residence and how this priority can be reconciled with a potentially grave danger awaiting their return .
fight for the mother Karen E. King said safety was the law’s primary purpose and that child return was a goal, but “not at any cost.”
“There are certain values and principles that are more important than an immediate return,” the lawyer said.
Justice Samuel Alito repeatedly objected to the Supreme Court issuing a “categorical rule” in domestic violence cases because the Convention does not mention any rule in such cases.
After some back-and-forth about circumstances, including domestic violence, Alito was inclined to support the Second Circuit rule because, in his estimation, that rule contains standards that include ameliorating conditions to address the potential for serious risk in returning to a child decrease home country.
Justice Brett Kavanaugh asked a procedural question as to why pre-trial detention was “more problematic” than reverse processing. The mother wants the Supreme Court to tell the Second Circuit they’re wrong and put an end to things as soon as possible.
“There is a sure and expeditious remedy for this court and for this child,” King said, arguing that the case had already been too tried and that the father did not deserve “a third bite in the apple.”
Justice Stephen Breyer took the course to speak for the Second Circuit and said the circuit judges on that bench are probably trying to stay true to the purpose of Congress – which is to stop kidnapping children. He insisted that family courts know best and that the higher up the chain of justice, the less likely it is that a legal professional will have a clear understanding of a child’s best interests.
King responded that the Supreme Court should not hesitate to issue an opinion that is “limited, enforceable and effective in protecting the child.” The mother in the case, she argued, had shown through clear and convincing evidence that her child was in danger. She went on to say that the convention is only intended to be temporary – to remain in effect while custody negotiations continue. At that point, years later, she insisted that the best solution was to uphold the district court’s findings on domestic violence and deny BAS’s return to Italy.
Justice Amy Coney Barrett Expressed understanding for the mother’s plight and said cases of domestic violence would probably be much more difficult to alleviate than, for example, removing a child from a nuclear power plant in his home country. King appreciated the question.
“It’s not just about physical abuse,” she said. “It’s emotional, psychological, verbal.”
Barrett, also suspicious of a categorical rule, suggested that the petitioner asked for a specific instruction on domestic violence, similar to a “proceed with great caution” rule.
Justice Neil Gorsuch notes that there has already been a nine-day trial, so why not just let the district court’s verdict on serious danger stand? Liu argues a bit about the procedural stance, but concedes that they would accept a finding refusing to return the child.
fight for the father Richard Min said the BAS removal order protects children in general, consistent with the overall purpose of the convention, and is in “that child’s” best interest.
Chief Justice John Roberts, who initiated the second round of consultations, found that the actual text of the Convention says nothing about corrective actions—that’s how the Second Circuit rule works. Min conceded the point, but argued that such action was “implicit” in the text due to “serious risk of harm” language.
“It’s almost like you’re adding a subsection,” Roberts replied.
“The system is built on mutual trust and cooperation,” Min later argued – insisting that, according to the convention, it was necessary to achieve “consistent outcomes” for children around the world.
Breyer, when interviewing Min, indicated that he was wary of the implications of the case if the court reached a decision.
“I’m afraid to write anything,” he said — expressing concern that whatever the court decides could lead to a bad outcome somewhere and potentially be misconstrued by lower courts.
“I’m not sure which thumb [to put on the scale] and what those words should be,” Breyer said, adding that family courts have the most difficult jobs in the court system. “In my opinion, that cannot be an absolute rule.”
Min then responded to a hypothesis by the aging liberal judiciary not to send a child back to Afghanistan, saying that this is indeed the sort of consideration valid under Second Circle rule.
“We believe that the court must simply consider any evidence of corrective action that is presented to it by either party during the course of the proceedings,” argued the father’s attorney. He added that refusing deportation under the Convention must overcome the strong presumption that courts in the home country are able to look after the best interests of children.
Countering this, King addressed what she believed to be the lack of procedures in Italy, arguing that not really much substantive action had been taken there, “just placeholder data”.
“[There is] no big thumbs or return obligation [a child] as soon as a serious risk is proven,” she argued – reiterating for at least the second time that the mother has demonstrated a serious risk “by the extraordinarily high standard in this country,” which is “clear and compelling evidence.”
The judges gave very little guidance as to her final appeal.
[Image via STEFANI REYNOLDS/AFP/Getty Images]
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