The Effect of Domestic Violence Allegations on Hague Convention Petitions

International custody disputes that fall under the Hague Convention typically involve drawn-out and bitter conflicts between parents. Even so, a case that went to the U.S. Supreme Court and that is still being litigated is extraordinary for its heartbreaking circumstances. It is also notable for the high court’s ruling on how judges should evaluate Hague Convention cases where a parent refuses to return their child to his or her home country based on a grave risk of harm from the other parent.

The case, Golan v. Saada, concerns an American woman who married an Italian man and lived in his home country. When Ms. Golan visited to the United States on a trip, she chose not to return to Italy and instead moved with the couple’s son into a shelter for victims of domestic abuse. She claimed that she had been physically assaulted by Mr. Saada, which posed a threat to their son. The Hague Convention requires the prompt return of children who have been removed from their country of residence by one parent without court authority or the consent of the other parent. However, there is an exception for situations in which there is clear and convincing evidence that returning the child home would present a grave risk of physical or psychological harm.

Mr. Saada sued in the U.S. District Court for the Eastern District of New York, seeking an order requiring his son to be sent back to Italy. While the case moved through the American legal system, an Italian court issued a protective order mandating that Mr. Saada attend therapy, take parenting classes and stay away from Ms. Golan for a year. By following these directives, he would be allowed to have supervised visitation with his son. Seeing these ameliorative measures in place, the U.S. District Court held that the Hague Convention exception did not apply and ordered that the boy be returned to Italy. The Second Circuit affirmed this decision.

However, the Supreme Court reversed the ruling, holding that the Hague Convention does not impose a categorical requirement that judges consider all ameliorative measures when deciding if the “grave risk” exception applies. Instead, judges have the discretion to assess whether these measures should factor into the decision under the Convention and the International Child Abduction Remedies Act. The Supreme Court noted that the existence of ameliorative measures is often intertwined with the analysis of whether a grave risk to the child exists.

Upon remand, the Eastern District once again ordered that the child be returned to Italy. Judge Ann M. Donnelly stated that although she was not required to take the ameliorative measures into account, she did feel it was appropriate to do so under the circumstances. The case took another sad turn shortly after the Supreme Court decision when Ms. Golan died following a fall at her home. However, her family members are pursuing the litigation in hopes of keeping the boy in the United States. As appeals continue, the child has not yet been returned to Italy. Saada currently travels to New York periodically for unsupervised visits.

The Law Offices of Lawrence S. Katz in Miami concentrates its practice in international family law issues, and is recognized as South Florida’s most experienced law firm in this field. If you are involved in a custody dispute where the Hague Convention might apply, please call 305-670-8656 or contact us online anytime to schedule a consultation.