CHILD CUSTODY - THE SUPREME COURT AND THE HAGUE CONVENTION

A court is not required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. Article 13(b) of the Hague Convention gives a court the discretion to grant or deny return of a child to a foreign country if it finds that return would expose the child to a “grave risk” of physical or psychological harm. Nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion.

From the Syllabus of Golan v. Saada, 142 S. Ct. 1880 - Supreme Court 2022:

"The Hague Convention on the Civil Aspects of International Child Abduction requires the judicial or administrative authority of a Contracting State to order a child returned to the child's country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the Contracting State. The authority "is not bound to order the return of the child," however, if the authority finds that return would expose the child to a "grave risk" of "physical or psychological harm or otherwise place the child in an intolerable situation." The International Child Abduction Remedies Act (ICARA) implements the Convention in the United States, granting federal and state courts jurisdiction over Convention actions and directing those courts to decide cases in accordance with the Convention.

Petitioner Narkis Golan, a United States citizen, married respondent Isacco Saada, an Italian citizen, in Italy, where they had a son, B. A. S., in 2016. In 2018, Golan flew with B. A. S. to the United States to attend a wedding and, instead of returning to Italy, moved into a domestic violence shelter with B. A. S. Saada thereafter timely filed a petition with the U. S. District Court for the Eastern District of New York, seeking an order returning B. A. S. to Italy pursuant to the Hague Convention. The District Court concluded that B. A. S. would face a grave risk of harm if returned to Italy, given evidence that Saada had abused Golan and that being exposed to this abuse harmfully affected B. A. S. The court, however, ordered B. A. S.' return to Italy, applying Second Circuit precedent obligating it to "examine the full range of options that might make possible 1886*1886 the safe return of a child" and concluding that ameliorative measures could reduce the risk to B. A. S. sufficiently to require his return. The Second Circuit vacated the return order, finding the District Court's ameliorative measures insufficient. Because the record did not support concluding that no sufficient ameliorative measures existed, the Second Circuit remanded for the District Court to consider whether such measures, in fact, existed. After an examination over nine months, the District Court identified new ameliorative measures and again ordered B. A. S.' return. The Second Circuit affirmed.

Held: A court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. Pp. 1891-1896.

(a) "The interpretation of a treaty, like the interpretation of a statute, begins with its text." Abbott v. Abbott, 560 U.S. 1, 10, 130 S.Ct. 1983, 176 L.Ed.2d 789 (internal quotation marks omitted). When "a child has been wrongfully removed or retained" from his country of habitual residence, Article 12 of the Hague Convention generally requires the deciding authority (here, a district court) to "order the return of the child." T. I. A. S. No. 11670, S. Treaty Doc. No. 99-11, p. 9. But Article 13(b) of the Convention leaves a court with the discretion to grant or deny return, providing that a court "is not bound to order the return of the child" if it finds that the party opposing return has established that return would expose the child to a "grave risk" of physical or psychological harm. Id., at 10. Nothing in the Convention's text either forbids or requires consideration of ameliorative measures in exercising this discretion. Pp. 1891-1893.

(1) Saada's primary argument is that determining whether a grave risk of harm exists necessarily requires considering whether any ameliorative measures are available. The two questions, however, are separate. A court may find it appropriate to consider both questions at once, but this does not mean that the Convention imposes a categorical requirement on a court to consider any or all ameliorative measures before denying return based on a grave-risk determination. Pp. 1891-1893.

(2) The discretion to courts under the Convention and ICARA includes the discretion to determine whether to consider ameliorative measures that could ensure the child's safe return. The Second Circuit's contrary rule—which imposes a textual, categorical requirement that courts consider all possible ameliorative measures in exercising discretion under the Convention, regardless of whether such consideration is consistent with the Convention's objectives—"in practice, rewrite[s] the treaty," Lozano v. Montoya Alvarez, 572 U.S. 1, 17, 134 S.Ct. 1224, 188 L.Ed.2d 200. Pp. 1892-1893.

(b) A district court's consideration of ameliorative measures must be guided by the legal principles and other requirements set forth in the Convention and ICARA. The Second Circuit's rule improperly elevated return above the Convention's other objectives. The Convention does not pursue return exclusively or at all costs. Courts must remain conscious of all the Convention's objectives and requirements, which constrain courts' discretion to consider ameliorative measures. First, the Convention explicitly recognizes that any consideration of ameliorative measures must prioritize the child's physical and psychological safety. Second, consideration of ameliorative measures should abide by the Convention's requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate 1887*1887 the underlying custody dispute. Third, any consideration of ameliorative measures must accord with the Convention's requirement that courts "act expeditiously in proceedings for the return of children." A court therefore reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. Pp. 1893-1895.

(c) In this case, the District Court made a finding of grave risk, but never had the opportunity to inquire whether to order or deny return under the correct legal standard. Accordingly, it is appropriate to allow the District Court to apply the proper legal standard in the first instance, see Monasky v. Taglieri, 589 U. S. ___, ___, 140 S.Ct. 719, 206 L.Ed.2d 9. The District Court should determine whether the measures considered are adequate to order return in light of the District Court's factual findings concerning the risk to B. A. S., bearing in mind that the Convention sets as a primary goal the safety of the child. Pp. 1895-1896.

833 Fed.Appx. 829, vacated and remanded.

SOTOMAYOR, J., delivered the opinion for a unanimous Court."