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."

ALTERNATIVE METHOD TO SERVE DIVORCE PAPERS IN MEXICO GRANTED

SWEET-MARTINEZ v. Martinez, 2020 NY Slip Op 20195 - NY: Supreme Court, Warren, August 10, 2020:

"Presently before the Court is plaintiff's Order to Show Cause which, in lieu of signing, was accepted as an ex parte motion for permission to serve defendant via an alternative method (see CPLR 308 [5]), namely FedEx International Economy mail to his last known address in Mexico.

Plaintiff Tiffany Anne Sweet-Martinez and defendant Florencio Hernandez Martinez were married on November 17, 2007. Defendant was thereafter deported to Mexico on March 8, 2011. Plaintiff commenced this action for a no-fault divorce on December 28, 2019 (see Domestic Relations Law § 170 [7]). There are no children of the marriage and, according to plaintiff, "all property has been equitably distributed, all debt has been allocated, [and] no maintenance is warranted."

In support of the motion, counsel for plaintiff states in pertinent part:

"I called defendant at his working telephone number.. . and spoke with him regarding sending him the papers to sign accepting service and consenting to the divorce.

Defendant confirmed his address for my mailings, consistent with an address plaintiff had on file for [him], written [in his] handwriting [on a] return label....

Per this conversation, on January 10, 2020 the summons with notice, admission of service, and [a] proposed [s]tipulation were mailed to defendant [at] the address designated by [him]."

Defendant did not respond and, as a result, the papers were sent to him again on March 9, 2020—"this time with his original last name switched with his middle name to be consistent with the way his name appeared on the return label [he] had sent." Counsel informs that "defendant [still] has not responded [to date] and neither of the ... mailings [have been] returned." Based upon "defendant's ... reluctance to cooperate ... and [her client's] limited resources," counsel now requests that the Court permit service upon defendant via FedEx International Economy mail.

To the extent that the motion papers failed to include anything with respect to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters (20 UST 361, TIAS No 6638 [1969]) (hereinafter the Hague Convention)—to which Mexico is a party—the Court invited (1) a supplemental affirmation outlining what, if any, steps have been taken to serve defendant in accordance with the provisions of the Hague Convention; and (2) a memorandum of law on the issue of whether the alternative method of service proposed is permissible under the Hague Convention.

These supplemental submissions indicate that "[o]n June 12, 2020, [counsel] prepared and submitted by mail ... a Request for Service Abroad of Judicial or Extrajudicial Documents via a Central Authority—being the main channel of transmission per the Hague [Convention]—to the designated receiving authority in Mexico." Counsel has not yet heard anything back.

The submissions then argue that service upon defendant by mail is permissible under article 10(a) of the Hague Convention, which offers as follows: "Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad."

In this posture the Court observes that Mexico has made the following declarations in relation to article 10(a):

[T]he United Mexican States are opposed to the direct service of documents through diplomatic or consular agents to persons in Mexican territory according to the procedures described in sub-paragraphs a), b) and c) [of article 10], unless the Judicial Authority exceptionally grants the simplification different from the national regulations and provided that such a procedure does not contravene public law or violate individual guarantees. The request must contain the description of the formalities whose application is required to effect service of the document" (see Declarations made at the moment of accession [1999], available at https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=412 & disp=resdn).

It is argued that under this declaration, if the Court were to Order service by postal channels, such service would be acceptable to Mexico because service by mail does not contravene public law or violate individual guarantees.

Although there is no case law on this precise issue in New York, other courts have found that Mexico has not outright objected to article 10(a) of the Hague Convention permitting service of process by mail (see e.g. Intl. Transactions, Ltd v Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX 2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct App 2014]). To that end, the Court finds that service upon defendant via FedEx International Economy mail to his last known address in Mexico is permissible — under both CPLR 308 (5) and article 10(a) of the Hague Convention.

Therefore, have considered the Affirmation of Trinidad M. Martin, Esq. dated June 2, 2020, together with Exhibits "A" through "D" attached thereto, Supplemental Affirmation of Trinidad M. Martin, Esq. dated July 29, 2020, together with Exhibit "A" attached thereto; and Memorandum of Law of Trinidad M. Martin, Esq. dated July 29, 2020, it is hereby

ORDERED that the motion is granted and defendant is hereby authorized to serve defendant by FedEx International Economy mail to his last known address in Mexico; and it further

ORDERED that the deadline to effectuate service is hereby extended to thirty (30) days from the date of this Decision and Order; and it is further


ORDERED that plaintiff shall file proof of service with the Warren County Clerk within fifteen (15) days of the completion of service, simultaneously providing the Court with a copy of such proof"