The one case on the Supreme Court’s hearing calendar for Tuesday involves the meaning of a four-decades-old international treaty that seeks to sort out in which country a child will live, when the parents feud over that issue. That treaty has grown more important as globalization has led to more marriages of spouses from different homelands.
The ”live” audio (no video) can be heard at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.
Tuesday’s case: Golan v. Saada. The hearing, scheduled for 70 minutes, will begin at 10 a.m.
Background: In a world always tormented by conflict, there have always been treaties to try to make peace or bring order out of chaos. The history of such agreements goes back at least to 1494, and the Treaty of Tordesillas, settling a land dispute between Spain and Portugal. Today, much of the daily news involves the North Atlantic Treaty of 1949, creating NATO, now providing military and humanitarian aid to Ukraine, after Russia’s brutal invasion.
A treaty is a solemn obligation among those nations that agree to them, committing them to work out violations of international law by non-violent means.
Under the U.S. Constitution, a treaty ranks as high in its power as a law passed by Congress, and so it can override any state law that conflicts with the treaty’s terms. The case before the Supreme Court on Tuesday involves the interconnection between a global treaty and a field of law that is normally left to state governments – family law, and especially, child custody.
The custody issue can become a real puzzle when the dispute within a married couple over a child’s future comes under the terms of that treaty, which originated in 1980 and was ratified by the Senate and came into effect within the United States in 1988.
That pact is sometimes given the shorthand name of the Hague Convention, but one must be careful with that: there are more than 40 Hague Conventions in effect. This treaty’s formal name is the Hague Convention on the Civil Aspects of International Child Abduction. (Note that it only deals with the civil aspects of abduction. There is a separate U.S. law, passed in 1993, that makes international child kidnapping a federal crime.)
The word “abduction” has a sinister sound, but it often is applied to a situation where a child’s mother, victimized by domestic abuse, flees from the home and takes a child or children with her abroad.
It also is important to note that actions taken under the treaty do not settle which parent ultimately wins custody, in the legal sense. That is determined by the law in the place where the child has lived, or in the place where the child winds up if not returned to its home country.
In this very case, in fact, working out parental obligations under the Convention caused difficulty, because some of those that a federal judge initially sought to impose were too much like orders awarding custody.
The main objective of this treaty, to which more than 75 countries adhere, is to assure the prompt return of a child to the country where he or she normally has lived, after a parent has taken the child to another country to live. The theory behind that obligation is that the child’s customary homeland will be best able to judge the best interests of the child, including which parent should have custody.
There are some exceptions to that primary goal, and one of those is at issue in this case. The treaty specifies that, if returning the child to the customary homeland would involve “grave risk” of physical or psychological to the child or place the child in an “intolerable situation,” return to the homeland should not be required.
Under U.S. law interpreting the treaty, a parent or another person seeking return of a child to the home country can go to federal court for help. The court has power only to decide how to carry out the treaty’s terms.
This case involves a couple married in Milan, Italy, in 2015 – an American woman, Narkis Aliza Golan, and an Italian man, Isacco Jacky Saada. Their son, identified in the case only by his initials, B.A.S., was born in 2016. The couple apparently had marital difficulty, including violent mistreatment of the mother, from the beginning.
In 2018, the mother and the boy traveled to the U.S. to attend her brother’s wedding. She did not then return to Italy, but instead, fearful of returning home after getting repeated threats from her husband, checked into a domestic violence shelter in New York. The father then sued in U.S. federal court, relying on the Convention to require the boy’s return to Italy. (The boy has joint U.S. and Italian citizenship.)
A federal trial judge ruled that the “grave risk” exception to return might apply, but then concluded that the child could go back to Italy if sufficient protective measures could be required of the father. Among those was a duty to provide the mother with $30,000 so she could live separately, a duty for him to stay away from her, to undergo therapy for his anger, and to withdraw a criminal charge he had filed against her.
A federal appeals court, agreed that the “grave risk” exception did not automatically require the child’s return to Italy, but ruled that the obligations imposed by the trial judge might be unenforceable in Italy and might not actually be carried out. The case went back to the trial judge, who went further this time, ordering the couple to go to court in Italy to get protective orders, and ordering the father to pay the mother $150,000 for her expenses, pending the Italian court’s ruling on parental custody.
The appeals court this time upheld the judge’s order, thus indicating that the boy could be returned to Italy. However, it put its ruling on hold so that the mother could appeal to the Supreme Court.
In her appeal, Ms. Golan has the partial support of the U.S. government. While she contends that, once a “great risk” finding has been made, no conditions of any kind can be imposed in an effort to protect the child, the government lawyers argue that the “grave risk” finding is not a total, automatic bar to return, so judges have the power to craft conditions to “ameliorate” the risk. The father argues that the lower courts interpreted the treaty correctly.
The question before the Court: Does the 1980 treaty totally forbid return of a child who has been taken to a foreign country to the child’s home country, once a “grave risk” to safety is shown?
Significance: The more a law — or, in this case, a treaty — allows exceptions to a legal obligation, the more likely it is that differing interpretations will be given to that obligation. On the other hand, the imposition of inflexible obligations can ignore the complexities or nuances of differing sets of facts.
The Justice Department’s approach to the global child abduction pact is one of balancing: do what is needed to resolve promptly the question of the child’s proper homeland, but then carefully calibrate what is necessary to assure the child’s future safety. When courts go too far in crafting a “full range” of protective requirements, according to the Department, that may slow down the process and, in addition, runs the risk of “making custody decisions,” which the treaty explicitly forbids until the child is settled.
The Department’s stance seems also to be influenced, at least in part, by diplomatic considerations, since flexibility by the U.S. government in enforcing a treaty may avoid the possibility of affronting other nations’ views of the treaty.
The federal appeals courts are split on the Convention’s scope, and, in particular, how to deal with the “grave risk” exception to the return requirement. The Supreme Court’s agreement to step in has at least the possibility of clarifying what the treaty means, at least when applied by the courts in the U.S.
One of the risks that some experts on the Convention have seen in recent years is the rise of what they call nationalism sentiments, with the courts of each nation tending to favor the parent who has brought a child there, or seeks a child’s return there.
Another risk seen by some observers is that, with the focus so tightly centered on the child, there may be inadequate concern over the effect of domestic abuse that leads a parent – more often, the mother – to feel a need to flee with the child.
On Wednesday, the Court will complete this week’s hearings by examining another case with foreign policy implications, focusing on when a U.S. federal court can help gather evidence for use in a private commercial dispute in a foreign country. Next week, the Court will return for four hearings.