Experienced South Florida


Risk of grave harm prevents child’s return to country of residence, part 2

On Behalf of | Jul 12, 2022 | Child Custody, Domestic Violence, Parental Abduction, Visitation and Time-Sharing

Today we continue our discussion of Golan v. Saada, the June 15, 2022, U.S. Supreme Court case interpreting the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”).

As explained in part 1, the U.S. is a signatory of the treaty, which creates a process for resolving cases of international child abduction between parents in two member states. In the U.S., federal or state courts may decide Hague disputes. Sometimes various U.S. courts interpret the treaty differently and the Supreme Court may clarify a disputed issue, which it did here.

Domestic violence is dangerous to a child who observes it

Golan v. Saada, involved Golan, a U.S. citizen and Saada, her Italian husband, who lived in Italy with their toddler son. Golan brought him to a wedding in the U.S. and stayed here with the child in violation of an Italian custody order, so Saada filed a Hague petition for the child’s return.

Indisputably, Saada had been violent and abusive to his wife in their son’s presence in Italy. Evidence pointed to potential danger to the child from observing this domestic abuse, including disruption to brain “structure and organization” as well as to “cognitive and social-emotional development.”

When a parent wrongfully removes a child from or retains them away from their country of habitual residence, the Convention directs a court to order the child returned to their home country. An exception is when return would expose them to “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.”

What if ameliorative measures can reduce the gravity of the risk?

The federal court in New York found that the father’s history of abusive behavior would put the child at grave risk if he returned to Italy. However, the court still ordered his return because the law in the Second Circuit required the court to consider if specific “ameliorative measures” could sufficiently reduce or mitigate the risk, return was still appropriate. The court found that sufficient ameliorative measures existed in Italy (counseling, financial support, living apart and others).

The child was not returned because the case was appealed, remanded back to the trial court and appealed again, with various pronouncements along the way on the ameliorative-measures issue, finally landing before the high court.

The treaty does not require consideration of ameliorative measures

The Supreme Court held that the Second Circuit’s requirement that a court consider the “full range of possible ameliorative measures” was inconsistent with the treaty, which never even mentions ameliorative measures. A court may consider ameliorative measures as part of the grave-risk assessment, but it is discretionary.

A court should normally consider “nonfrivolous” ameliorative measures, also called undertakings, raised by the parties or that are obvious, but the court must remember the treaty’s legal principles and objectives. When weighing ameliorative measures:

  • The child’s safety is paramount, and severity of risk may outweigh any ameliorative measures such as when the risk is of sexual, physical or psychological abuse; domestic violence; or “serious neglect.”
  • A court may refuse to order ameliorative measures if it is reasonable to expect they will not be followed.
  • As part of an order of ameliorative measures, the court may not decide custody issues rightfully before a foreign court.
  • The treaty requires expeditious resolution of return requests, and a drawn-out analysis of all possible ameliorative measures is inconsistent with this goal.

Of note, the justices agreed unanimously to the holding in this case.


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