The high court unanimously struck down the Second Circuit's requirement that as part of determining whether a child should be returned to a country where he or she might face harm, federal district courts must explore whether so-called ameliorative measures, by either the child's parents or by the authorities of a country where the child would be sent, could be implemented.
While a federal district court is certainly free to explore whether ameliorative measures make sense, it is not required to do so under the Hague Convention if they are unworkable, if the measures are better explored in custodial proceedings or if they run the risk of dragging out the process, the opinion by Justice Sonia Sotomayor said.
"Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties' substantive arguments and its specific obligations under the convention," Justice Sotomayor wrote.
The Supreme Court made the determination in a case involving Narkis Golan, a U.S. citizen who married an Italian man, Isacco Saada, and had a son in Italy in 2016. Golan traveled to the United States in 2018 with her son, now 6, and rather than return to Italy she moved into a domestic violence shelter.
Saada then petitioned New York federal court to order his son to be repatriated to Italy under the Hague Convention, but U.S. District Judge Ann M. Donnelly determined that the child faced a "grave risk" should he be sent back, given evidence of physical and emotional abuse by the father toward the mother, according to the opinion.
Regardless, Judge Donnelly still ordered that he be repatriated, given the Second Circuit's requirement to consider ameliorative measures. The Second Circuit ultimately didn't like the measures the judge developed and sent the case back, but it signed off on a second set.
On Wednesday, the Supreme Court ordered that the district judge take yet another look at the case, but this time on whether the child should be repatriated in light of the "grave risk" without being obliged to consider ameliorative measures.
"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," Justice Sotomayor wrote.
Karen King, an attorney representing Golan, told Law360 on Wednesday that she and her client were very pleased with the Supreme Court's ruling.
"We hope the Supreme Court's guidance on the interpretation of the Hague Convention will be helpful to other survivors of domestic violence and their children," King said.
Richard Min, an attorney representing Saada, said in a statement Wednesday that the Eastern District of New York had twice determined that the child could be adequately protected upon being returned to Italy, and that the Supreme Court supported the position that in ordinary circumstances, a lower court should address ameliorative measures either suggested by the parties or by the circumstances of a case.
"Ameliorative measures are clearly appropriate when they are able to protect children from harm," Min said.
Golan is represented by Karen R. King and Kevin Grossinger of Morvillo Abramowitz Grand Iason & Anello PC, Kannon K. Shanmugam, Daniel H. Levi, Aimee W. Brown, Matteo Godi, Danielle J. Marryshow and Xinshu Sui of Paul Weiss Rifkind Wharton & Garrison LLP and Andrew A. Zashin, Christopher R. Reynolds and Amy M. Keating of Zashin & Rich Co. LPA.
Saada is represented by Richard Min and Michael Banuchis of Green Kaminer Min & Rockmore LLP, Jeffrey T. Green, Kathleen Mueller, Jillian S. Stonecipher and Nicole M. Baade of Sidley Austin LLP, Xiao Wang of Northwestern Supreme Court Practicum and Melissa A. Kucinski of MK Family Law.
The case is Golan v. Saada, case number 20-1034, in the Supreme Court of the United States.
--Editing by Karin Roberts.
Correction: A previous version of this story misattributed a statement by Saada's attorney to a spokeswoman. The error has been corrected.
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