Golan v. Saada

Facts

Narkis Golan (W) is a citizen of the United States. She met Isacco Saada (H), an Italian citizen while attending a wedding in Milan, Italy, in 2014. W moved to Milan, and the two wed in August 2015. Their son, B. A. S., was born the next summer in Milan, where the family lived for the first two years of B. A. S.’s life. The relationship was characterized by violence right from the beginning. The two fought daily. H would sometimes push, slap, and grab W and pull her hair. H yelled and swore and frequently insulted her and called her names, often in front of other people. H once told W’s family that he would kill her. Much of the abuse occurred in front of B. A. S. In July 2018, W flew with B. A. S. to attend her brother’s wedding. Rather than return as scheduled in August, W moved into a domestic violence shelter with B. A. S. In September, H filed a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of B. A. S. H filed a petition under the Convention and ICARA.  The District Court granted H’s petition after a 9-day bench trial. The court determined that Italy was B. A. S.’ habitual residence and that W had wrongfully retained B. A. S. in the United States in violation of H’s rights of custody. The court held that returning B. A. S. to Italy would expose him to a grave risk of harm. The court described some of the incidents B. A. S. had witnessed as  “chilling.” Undisputed expert testimony established that “domestic violence disrupts a child’s cognitive and social-emotional development, and affects the structure and organization of the child’s brain.” Italian social services also concluded that “‘the family situation entails a developmental danger’ for B. A. S.” The court found that H had demonstrated no “capacity to change his behavior,” explaining that H “minimized or tried to excuse his violent conduct” during his testimony and H’s “own expert said . . . that he could not control his anger or take responsibility for his behavior.” The court  ordered B. A. S. to return to Italy because it was obligated to “‘examine the full range of options that might make possible the safe return of a child to the home country’” before it could “‘deny repatriation on the ground that a grave risk of harm exists.’” The District Court required the parties to propose “‘ameliorative measures’” that could enable B. A. S.’ safe return. H proposed that he would provide W with $30,000 for expenses pending a decision in Italian courts as to financial support, stay away from W until the custody dispute was resolved, pursue a dismissal of the criminal charges he had filed, begin cognitive behavioral therapy, and waive any right to legal fees or expenses under the Convention. The court agreed and returned the boy under those conditions. The Second Circuit vacated the order, finding the measures insufficient to mitigate the risk of harm to B. A. S. It doubted H would comply and there were insufficient guarantees of performance. The court remanded for the District Court to “consider whether there exist alternative ameliorative measures that are either enforceable by the District Court or supported by other sufficient guarantees of performance.” Over the course of nine months, the District Court conducted “an extensive examination of the measures available to ensure B. A. S.’s safe return to Italy.” The parties petitioned the Italian courts for a protective order, and the Italian court overseeing the underlying custody dispute issued a protective order barring H from approaching W for one year. In addition, the Italian court ordered that an Italian social services agency oversee H’s parenting classes and therapy and that visits between H and B. A. S. be supervised. Under those additional conditions, it again granted H’s petition for B. A. S.’s return. The District Court ordered H to pay W $150,000 to facilitate B. A. S.’s return to Italy and to cover W’s and B. A. S.’s living costs while they resettled. The Second Circuit affirmed. W appealed. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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