Paul, Weiss Pro Bono Client Wins Supreme Court Victory in Decision Broadening Court Discretion in International Custody Disputes

Paul, Weiss helped a pro bono client win a unanimous Supreme Court victory in a long-running case in which our client sought to reverse an order compelling her to return her child to Italy—where her husband resides—to await custody proceedings, despite the documented grave risk of harm to the child. The opinion in Golan v. Saada broadens lower courts’ discretion to refuse return after a grave risk determination in international child custody disputes under the Hague Convention.

Over the past three and a half years, Paul, Weiss has represented our pro bono client, Narkis Golan, at trial, on three separate appeals at the Second Circuit and before the Supreme Court. Ms. Golan, a U.S. citizen, was referred to Paul, Weiss in September 2018 by Sanctuary for Families, after she fled Italy with her then-two-year-old son (“B.A.S”) to escape a physically, psychologically and sexually abusive relationship with her husband, Jacky Saada. Mr. Saada filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented through the International Child Abduction Remedies Act, seeking a return of B.A.S. to Italy. After a two-week trial in January 2019, the U.S. District Court for the Eastern District of New York held, among other things, that returning B.A.S. to Italy, his country of habitual residence, would place him at grave risk of physical or psychological harm. Nonetheless, applying binding Second Circuit precedent, the court ordered the return of the child to Italy, holding that there were sufficient ameliorative measures that would ensure the safety of the child. Specifically, Mr. Saada was ordered to, among other things, stay away from Ms. Golan, dismiss the criminal charges he had filed against her and begin cognitive therapy.

The Second Circuit affirmed in part, vacated in part, and remanded for further proceedings, holding that the most important ameliorative measures crafted by the district court were unenforceable. The Second Circuit directed the district court to consider the full range of remedies that might allow the return of the child safely, as required under Second Circuit precedent. By contrast, other courts of appeal either disfavor or do not require the same broad consideration of potential ameliorative measures. The Second Circuit’s directive further reinforced this existing circuit split.

On remand, the district court imposed new ameliorative measures, including ordering the parties to seek a protective order from the Italian court overseeing the parties’ custody dispute and requiring Mr. Saada to pay Ms. Golan $150,000 to cover her travel and living expenses. The Second Circuit affirmed.

Paul, Weiss petitioned for a grant of certiorari on the question of whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is nonetheless required to consider ameliorative measures that would facilitate the return of the child; the Court granted it in December.

In a 9-0 opinion by Justice Sonia Sotomayor, the Supreme Court ruled that 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. The Court vacated and remanded the case.

The Court clarified that district courts have no obligation to consider ameliorative measures, although they must consider nonfrivolous arguments as to such measures that are raised by the parties. Regardless, any consideration of ameliorative measures must be guided by the aims of the Hague Convention—to protect the child, to do so without infringing on the role of courts resolving the custody dispute itself, and to resolve disputes expeditiously.

This case has been a true Paul, Weiss team effort and many people have made invaluable contributions at trial, through multiple appeals and in the Supreme Court. The Paul, Weiss team includes litigation partners Kannon Shanmugam and Claudia Hammerman, counsel Daniel Levi, and associates Aimee Brown, Alison Benedon, Sylvia Xinshu Sui, Matteo Godi, Danielle Marryshow, Megan Adams, Samantha Fry and William Marks.