Supreme Court
The Supreme Court is seen at dusk in Washington, Friday, Oct. 22, 2021. The justices have allowed a Texas law that bans most abortions to remain in effect for now, but heard arguments on November 1 over whether the law should be blocked while legal challenges continue. (AP Photo/J. Scott Applewhite)

Solomon, the greatest judge of all time, may have been savvy on appellate matters—the record isn’t clear—but he was a lousy family court judge. Brandishing a sword in the courtroom and threatening to chop children in half to extract confessions from their parents does not conform to what today is considered best judicial practice, at least in the child custody field.

Federal judges, too, are not recruited for their knowledge of family law. Don’t count on the Senate Judiciary Committee to ask Ketanji Brown Jackson about her experience with contested divorce, domestic abuse, or child custody. That’s because, as every first-year law student learns, federal courts have virtually no jurisdiction over divorce and family matters, and, in particular, child custody disputes—a limit that the Supreme Court has repeated in various ways for 175 years. Yet federal courts do hear one particularly agonizing set of family cases: requests for the return of children brought by one parent to the United States by the parent left behind that the child be sent to the country from which they came. 

A case to be argued in front of the Supreme Court next Tuesday will shape how federal judges assess a request for the return of a child “abducted” to the U.S. by one parent. The result will also impact how American courts treat parents in the U.S. who themselves have been abused by their partners abroad. The case is in federal court because it concerns a treaty the United States adhered to in 1988, the Hague Convention on the Civil Aspects of International Child Abduction, meaning that litigants can, in the U.S., choose state or federal court to petition for return. 

Golan v. Saada pits Narkis Golan, an American citizen, against her husband, Jacky Saada, a citizen of Italy. They married in 2015 and had a child, “B.A.S.,” in Italy in 2016. (Initials are used to protect the minor’s identity.) Golan and Saada agree that the marriage was punctuated by savage arguments and actual violence by Saada against Golan. In September 2018, Golan brought B.A.S. to New York for a wedding, but when it came time to return to Italy, she took the child and entered a shelter for abused women in New York. Saada soon filed suit in federal court in New York, seeking an order that B.A.S. be returned to him. 

Since 1988, American judges have wrestled with a dilemma: what to do with children brought to the U.S. from abroad by mothers who can show they are victims of violent abuse by the father. When the convention was written four decades ago, diplomats and child welfare specialists, who crafted the accord, were apparently thinking of a different situation—one in which a parent, usually a father, had taken a child away from their “habitual place of residence” and back to his native country, counting on favorable courts to award custody to him. But back then, awareness of the prevalence and corrosive effect of domestic violence at all levels of society, while not nonexistent, was not as salient as it is today. Fairly quickly, however, dozens of federal district courts found themselves dealing with a different kind of case—ones in which a spouse abroad, alleging physical abuse either of self or of the child or both, has taken a child to the U.S.

After the U.S. joined the convention, Congress passed the International Child Abduction Remedies Act, which set up a procedure by which parents whose children have been brought to the U.S. by another parent can ask a federal court to order the child returned to their previous home country. Federal courts share jurisdiction over these cases with state courts.

The basic principle of the convention is that a child is to be returned “forthwith” to the “habitual place of residence” so courts can determine custody rights in a normal proceeding. In particular, the convention says, courts considering a return petition cannot decide, or re-decide, which parent should have custody. At least in theory, that has either been determined or will be determined after the abduction issue is resolved. 

There are, however, exceptions. One is noted in Article 13(b) of the convention, which provides that a court need not return a child if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Since the act went into effect, federal judges have been asked to make such “grave risk” determinations—without much guidance from the text of the convention or its negotiating history, which is akin to a legislative history in Congress. The “grave risk” question has tied federal judges in knots since the U.S. entered the convention system in 1988. 

In Golan v. Saada, there was little question: Golan had met the statutory burden of “clear and convincing evidence” of “grave risk” to B.A.S. arising from Saada’s gross and chronic abuse. In her initial opinion, Judge Ann Donnelly of the Eastern District of New York summarized the evidence this way: 

Mr. Saada admitted that he slapped Ms. Golan, pulled her hair, pushed her, and yelled at her. These were not “sporadic or isolated incidents” or “some limited instances,” but happened repeatedly throughout the course of the parties’ relationship. The pattern is corroborated by contemporaneous texts, in which Mr. Saada described what he did, and his attempts to explain it away, as well as audio and video recordings. There are particularly chilling recordings in which Mr. Saada is screaming and swearing at Ms. Golan, often while B.A.S. was there. And although he disputed Ms. Golan’s account of how it started, Mr. Saada also admitted a physical altercation with Ms. Golan while B.A.S. was in the car and while Mr. Saada was driving at a high speed.

It’s pretty clear that this kind of repeated behavior constitutes a “grave risk” of harm to a child as well as to a mother—especially since, in this case, both Saada himself and his own hired expert told the court that Saada was incapable of changing his abusive behavior. But instead of simply allowing mother and child to remain in the U.S., Donnelly then moved on to consider whether Saada could agree to “ameliorative measures” that might allow B.A.S. to return to Italy without “grave risk.” She was required, under Second Circuit precedent, to consider such measures before allowing B.A.S. to remain in the U.S. Donnelly decided that return would be safe enough if Saada agreed to (1) give Golan $30,000 to find separate housing for herself and B.A.S.; (2) drop the criminal charges against her that he had filed in an Italian court; (3) agree to an order of protection that would keep him away from her; (4) undergo behavioral therapy; and (5) make no demand that Golan pay his legal fees for him.

To an outsider, these measures might seem like the equivalent of asking an abuser to promise to be good. The Second Circuit sent the case back to Donnelly with instructions to develop more stringent conditions. What resulted was an agreement between the U.S. court and a court in Italy. The latter entered a protection order under Italian law, upped the one-time payment to $150,000, and promised that Italian child welfare agencies would supervise and enforce interactions between father and child. The protection order would last a year, and the criminal charges against Golan were dropped. Under those conditions, Donnelly ruled, the “grave risk” was abated, and B.A.S. could be returned to Italy to live with her mother there. 

The Second Circuit affirmed this order, and Golan petitioned the Supreme Court for review. In December, it said it would take up the case. The justices will hear oral arguments on Tuesday. 

The federal appeals circuits are split on what might seem like an abstruse question: Is a court required to consider “ameliorative measures” after a finding of grave risk? One set of courts, including the First, Fifth, and Eleventh Circuits, have ruled that judges may consider such measures but do not have to; the Second, Third, and Ninth Circuits have put in place a rule that courts must consider such measures, and must permit the spouse seeking return to submit potential measures for court review. (State courts are split on the same question.)

In case this seems like “angels on a pin” (“may consider but doesn’t have to do so before deciding” versus “must consider in every case but need not adopt after considering”), Golan—and the United States, as an amicus supporting her—argues that mandatory consideration of ameliorative measures inserts an additional step into abduction-return litigation. In Saada’s case, the formal consideration of the parties’ proposals consumed a full year, during which B.A.S. remained in limbo between the U.S. and Italy. The delay, Golan argues, also undermines two objectives of the convention: the prompt resolution of abduction claims and the welfare of the children at issue in return cases. 

Merle Weiner, a University of Oregon colleague of mine who has written extensively on Article 13 issues, said in an email, “The court should not be required to focus on protective measures because it invariably drags things out and risks jeopardizing the mother’s and child’s safety (if the court deludes itself into thinking that protective measures are adequate despite the batterer’s unpredictability).” Weiner suggested that ending a return proceeding promptly, once the Article 13(b) defense is established, would mean that the custody issue would be sent back more quickly to the court that has actual jurisdiction to hear it—a process that involves “a much more fact-intensive inquiry where judges typically have more training and understanding about domestic violence.” Indeed, the issue of judicial expertise resounds in an amicus brief for a group of former federal and state judges. The brief was written by Shira Scheindlin, a federal district judge for 18 years: “To affirm the Second Circuit’s mandate,” the brief argues, “would force courts to delve into unsettled psycho-behavioral issues, among many others, a task they are simply not qualified to perform.”

In fact, neither the term ameliorative measures or any equivalent term appears in the convention itself. It has been adopted by courts in other countries that are applying their own law incorporating convention obligations. However, Linda Silberman of the New York University Law School argues in a brief that the word risk itself calls up the question of measures. Courts’ assessment of a couple’s past, she argues, is only part of the treaty obligation. A court must look into the future to determine whether a child’s return is or can be made safe: “If the child can be sufficiently protected from harm upon its return, then, under the Convention, it does not, in fact, face a ‘grave risk’ of harm,” she writes. “Consideration of ameliorative measures is, thus, integral to the determination of whether there is a grave risk of harm to the child.”

The “ameliorative measures” debate in the U.S. centers around the fraught issue of domestic violence, but the parties agree that is not the only meaning of the term. “Grave risk” encompasses many other risks that could be abated by prudent measures at the outset—epidemic disease, for example, that could be dealt with by providing vaccination, or military conflict or natural disaster that could be dealt with by arranging temporary safety measures. In fact, the U.S. government argues in its amicus brief that this sort of temporary arrangement is the core meaning of “ameliorative measures.” The government suggests that cases of physical or sexual abuse may be so severe that no further consideration is needed. 

For his part, Saada argues that refusing “ameliorative measures” risks importing current American cultural values into international proceedings:

[There] is no basis in law or fact for holding that ameliorative measures will seldom be appropriate in cases of domestic violence. That legal rule would reflect a bias in favor of U.S. courts and a distrust of courts and authorities in other signatories that is antithetical to the trust and respect that must be given to fellow signatory nations.

The Supreme Court’s task would be difficult even for Solomon. On the one hand, the convention rests on a commitment for return “forthwith” in almost all cases, leaving the custody issues to the sending nation’s courts. On the other, the U.S. has, since it joined the convention, had a searing encounter with the pervasiveness and persistence of domestic abuse. Favoring return too little may dishonor that part of the convention; favoring it too much risks undervaluing Article 13(b)—and ignoring what we now know about men, women, families, and children. 

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.