The U.S. Supreme Court in Washington, DC, on March 21, 2022. The US Senate takes up the historic nomination on March 21, 2022 of Judge Ketanji Brown Jackson to become the first Black woman to sit on the Supreme Court.
The Supreme Court of the United States on Tuesday heard oral arguments in a case about international child abductions that occur amid domestic disputes–including, in this particular case, a child custody dispute.
Stylized as Golan v. Saada, the case concerns the mother of a child identified in court documents as “B.A.S.” They were born in Milan, Italy in 2016. The child’s mother is Narkis Golan, a U.S. citizen. The child’s father is Isacco Saada, an Italian citizen. Saada and Golan married in 2015, and Saada quickly became abusive to Golan in front of the child, according to a district court in New York.
“Saada would yell, slap, hit, and push Golan,” the lower court’s findings note. “He would call her names and pull her hair. He once threw a glass bottle at her and also threatened to kill her.”
After roughly two years, Golan traveling to the United States for a wedding in 2018 and never returned to Italy–opting instead to live in a domestic-violence shelter in New York with her child. Saada then filed a case in federal court to force Golan to return B.A.S. to Italy under the rules of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Hague Convention mandates that custody disputes must be resolved in the country of a subject child’s residence, so as to prevent parents from fleeing to foreign countries to obtain a legal advantage. However, there is an exception in cases in which there is a “grave risk” that returning a child to their home country would cause 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 B.A.S. could be returned to Italy if protective measures were put in place, such as Saada’s attending therapy and parenting classes and paying Golan’s living expenses. The Second Circuit affirmed that ruling–finding the lower court had faithfully applied their interpretation of the convention.
Golan appealed that ruling directly to the nation’s high court, arguing that the Second Circuit’s rule of interpretation is not found in the text of the convention and inappropriate, particularly in the context of proven domestic violence.
During oral argument, the justices (still sans a reportedly ailing but recovering Justice Clarence Thomas) were largely concerned with exactly how to craft their ruling so as to maintain discretion for district courts without giving heavy-handed guidance. The special nature of domestic violence cases cited throughout the questioning.
Justice Sonia Sotomayor asked about how courts might be found to have abused discretion in such cases if the first priority of the convention is to return children to their habitual residences and how to balance that priority with a potentially grave danger awaiting their return.
Arguing for the mother, Karen E. King said that safety is the preeminent purpose of the statute and that returning the child is a goal but “not at all costs.”
“There are certain values and principles that are more important than prompt return,” the attorney said.
Justice Samuel Alito repeatedly raised an objection to the Supreme Court crafting a “categorical rule” in domestic violence cases because the convention doesn’t mention any sort of rule in such cases.
After some amount of back and forth about circumstances including domestic violence, Alito leaned toward endorsing the Second Circuit’s rule because, in his estimation, that rule contains standards that include ameliorative conditions so as to lessen the potential for a grave risk upon return to a child’s home country.
Justice Brett Kavanaugh asked a procedural question as to why a remand would be more “problematic” than a reversal. The mother would like the Supreme Court to tell the Second Circuit they are wrong and to put an end to things as soon as possible.
“There is a safe and swift remedy available for this court and this child,” King said, arguing that there has already been too much process in the case and that the father doesn’t deserve a “third bite at the apple.”
Justice Stephen Breyer took the tack of speaking for the Second Circuit, saying the circuit judges on that bench are probably trying to live true to the purpose of the convention–which is to stop child kidnappings. He insisted that family courts know best and that the higher up the judicial chain, the less likely a jurist is to have a clear understanding of a child’s best interests.
King replied that the Supreme Court should not be wary of issuing an opinion that is “limited, enforceable and effective at protecting the child.” The mother in the case, she argued, has shown by clear and convincing evidence that her child is at risk. She went on to note that the convention is only supposed to be temporary–to remain in effect while custody hearings go on. At this point, years later, she insisted, the best solution would be to endorse the district court’s findings on domestic violence and deny B.A.S.’s return to Italy.
Justice Amy Coney Barrett appeared sympathetic to the mother’s plight, saying that domestic violence cases are probably much more difficult to ameliorate than, say, moving a child away from a nuclear power plant in their home country. King appreciated the question.
“It’s not just about physical abuse, she said. “It’s about emotional, psychological, verbal.”
Barrett, also suspicious of a categorial rule, suggested the petitioner was asking for a domestic violence specific instruction akin to a “proceed with great caution kind of rule.”
Justice Neil Gorsuch notes that there was already a nine-day bench trial, so why not just let the district court’s ruling on grave risk stand? Liu argues a bit about the procedural posture but concedes that they would accept a finding that denies the child’s return.
Arguing for the father, Richard Min said the removal order for B.A.S. protects children generally, in line with the overall purpose of the convention, and is in the best interests of “this child.”
Chief Justice John Roberts, kicking off the second round of questioning, n0ted that there is nothing in the actual text of the convention about ameliorative measures–which is how the Second Circuit’s rule operates. Min conceded the point but argued that such measures are “implicit” in the text due to the “grave risk of harm” language.
“It’s almost like you’re adding a subsection,” Roberts retorted.
“The system is built on mutual trust and cooperation” Min argued later on–insisting that this was necessary under the convention in order to obtain “consistent results” for children around the world.
Breyer, when questioning Min, suggested his wariness of the present case’s impact when the court reaches a decision.
“I’m afraid of writing anything,” he said–voicing a concern that whatever the court decides will be used toward some bad result somewhere and possibly misconstrued by lower courts.
“I’m not certain of what thumb [to put on the scale] and what those words should be,” Breyer said, adding that he though family courts have the hardest jobs in the court system. “It can’t be an absolute rule in my opinion.”
Min then responded to a hypothetical from the aging liberal justice about not sending a child back to Afghanistan and said that is actually the sort of consideration that is valid under the Second Circuit’s rule.
“We believe that very simply the court must consider all evidence of ameliorative measures presented to them by either party during the course of proceeding,” the father’s attorney argued. He added that denying a removal under the convention must overcome the strong presumption that courts in the home country are capable of providing for the best interest of children.
King, in rebuttal, addressed what she felt were the paucity of proceedings in Italy so far, arguing that there hasn’t really been much substantive action taken there, “just placeholder dates.”
“[There is] no heavy thumb or obligation to return [a child] once grave risk is proven,” she argued–repeating for at least the second time that the mother has proven grave risk “by the exceedingly high standard in this country,” which is “clear and convincing evidence.”
The justices gave very little indication of their ultimate call.
[Image via STEFANI REYNOLDS/AFP/Getty Images]
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