U.S. Supreme Court

SCOTUS rules for US citizen who says return of her child to Italy poses grave risk of harm

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The U.S. Supreme Court ruled Wednesday that U.S. courts can refuse to return children to their home countries in situations posing a grave risk of harm without considering all measures that could reduce the risk.

Justice Sonia Sotomayor wrote the unanimous opinion on a busy day for the high court. It issued four other opinions on the subjects of veterans’ disability benefits, Medicare reimbursement rates, gaming on tribal lands and the Federal Arbitration Act. And it dismissed as improvidently granted a case involving the Trump administration’s public charge rule.

Commenters on SCOTUSblog’s live reporting on the opinions noted that Justice Clarence Thomas wrote a very short dissent in the arbitration case (it reads like a “per my earlier email”), and that Justices Neil Gorusch and Amy Coney Barrett have ended up on opposite sides in several recent cases (“What is it with these Gorsuch dissents to Barrett’s majority opinions?”)

The child custody case is Golan v. Saada. The court ruled for U.S. citizen Narkis Golan, who married an Italian citizen in Italy and had a son with him there. Golan flew with her son to the United States to attend a wedding in 2018. Instead of returning, Golan moved into a domestic violence shelter with her son.

Golan’s husband, Isacco Saada, filed a court petition for the boy’s return, citing the federal law that implements the Hague Convention on the Civil Aspects of International Child Abduction.

The convention is premised on the idea that the interests of children in child custody cases are best served when made in the country of the child’s habitual residence. The treaty generally requires the prompt return of children when wrongfully removed, but there are exceptions.

One exception says a return is not required if there is a grave risk of physical or psychological harm or if return would place the child in an intolerable situation.

A federal court considering Saada’s petition found that Saada sometimes pushed, slapped and grabbed Golan. He yelled and swore at her. Much of the abuse happened in front of the couple’s son, the federal court found.

A district court nonetheless ordered the child’s return to Italy under appellate precedent obligating it to “examine the full range of options that might make possible the safe return of a child to the home country.”

Saada’s proposed ameliorative measures included providing Golan with $30,000 for expenses pending a decision on financial support, staying away from Golan pending resolution of the child custody dispute, beginning therapy, and waiving legal fees and expenses.

The 2nd U.S. Circuit Court of Appeals at New York found that the measures were insufficient and remanded for consideration of other alternatives.

The district court added additional measures, including that an Italian social services agency oversee Saada’s parenting classes and therapy, and that visits between Saada and his son be supervised. A protective order barred Saada from approaching Golan for one year. He would also pay $150,000 to facilitate his son’s return to Italy and to pay living costs while Golan and her son resettled.

The 2nd Circuit affirmed. The Supreme Court vacated the ruling.

Sotomayor said courts have discretion under the treaty to grant or deny a return after a finding of grave risk.

“Nothing in the convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion,” Sotomayor wrote. “The convention itself nowhere mentions ameliorative measures.” Nor does the International Child Abduction Remedies Act, the federal law implementing the treaty.

Consideration of ameliorative measures often may be appropriate, Sotomayor said. But “a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate.”

The case now goes back to the federal district court to resolve whether to order a return under the legal standard laid out by the Supreme Court.

“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 [the child], bearing in mind that the convention sets as a primary goal the safety of the child,” Sotomayor wrote.

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