SCOTUS listens to arguments about international custody cases

Supreme Court at night

United States Supreme Court in Washington, DC, on March 21, 2022. The United States Senate received the historic March 21, 2022 nomination by Judge Ketanji Brown Jackson to become the first black woman. first sit on the Supreme Court.

The Supreme Court of the United States held a hearing on Tuesday oral argument in the case of international child abductions occurs amid domestic disputes – including, in this particular case, a custody dispute.

Stylized like Golan and SaadaThe case involving the mother of a child was identified in court documents as “BAS“They were born in Milan, Italy in 2016. The child’s mother is Narkis Golan, a US citizen. The child’s father is Isacco Saada, an Italian citizen. Saada and Golan married in 2015, and Saada quickly abused Golan in front of the child, according to a New York district court.

“Saada will scream, slap, hit and push Golan,” the lower court concluded. “He would call her name and pull her hair. He once threw a glass bottle at her and threatened to kill her.”

After about two years, Golan went to the United States for a wedding in 2018 and never returned to Italy – instead choosing to live in a domestic violence shelter in New York with her children. Miss. Saada then applied to a federal court to force Golan to return the BAS to Italy under the rules of the 1980 Hague Convention on Civil Aspects of International Child Abduction.

The Hague Convention requires that child custody disputes be resolved in the child’s country of residence, to prevent parents from fleeing abroad to gain a legal advantage. However, there is an exception in cases where there is a “serious risk” that the return of the child to the home country will cause physical or psychological harm.

According to the legal standard adopted by the US Court of Appeals for the Second Circuit, the district court found that BAS could be returned to Italy if safeguards were in place, such as Saada’s participation in classes therapy and parenting as well as pay for Golan’s living expenses. The second round affirmed that the ruling – found the lower court had faithfully applied their interpretation of the convention.

Golan directly appealed that ruling to the country’s high court, arguing that the Second Circuit’s rule of interpretation was not found in the text of the convention and was inappropriate, especially in the context of proven domestic violence.

During oral arguments, the judges (still sick but restored to Justice Clarence Thomas) are largely concerned with how to correctly deliver their rulings in order to preserve discretion for the district courts without giving heavy-handed guidance. The special nature of domestic violence cases was cited throughout the questioning.

Justice Sonia Sotomayor was asked how courts can be found to have abused self-determination in such cases if the first priority of the convention is to return children to their usual places of residence and How to balance that priority with the potential danger that awaits their return.

Arguing for the mother, Karen E. King stated that safety is the primary goal of the policy and that the return of the child is an objective but “not at all costs”.

“There are some values ​​and principles that are more important than an immediate return.

Justice Samuel Alito repeatedly objected to the Supreme Court drafting a “classification rule” in domestic violence cases because the convention did not mention any kind of rule in such cases.

After some back-and-forth about cases including domestic violence, Alito was inclined to endorse the Second Circuit rule because, in his estimation, the rule contained standards that included conditions of cooperation to minimize the serious risk of returning to a domestic child.

Justice Brett Kavanaugh asked a procedural question as to why a remainder would be more “problematic” than an inversion. The mother wanted the Supreme Court to tell Second Circuit that they were wrong and put an end to the matter as soon as possible.

“There is a quick and safe remedy for the court and this child,” King said, arguing that there had been too much due process in the case and that the father did not deserve “a third apple bite.” “.

Justice Stephen Breyer began speaking for the Second Round, saying that the ring judges on that bench were probably trying to live up to the purpose of the convention – which is to prevent child abductions. He emphasized that family courts know best and that the higher up in the trial chain, the less likely a lawyer is to have a clear understanding of a child’s best interests.

King replied that the Supreme Court should not be wary of making an opinion that is “limited, enforceable and effective in the protection of the child”. She argued that the mother in this case presented clear and convincing evidence that her child was at risk. She went on to note that the convention is considered temporary – remaining in effect while the custody hearings continue. At this point, many years later, she insists, the best solution would be to uphold the district court’s conclusion on domestic violence and refuse the BAS’ return to Italy.

Justice Amy Coney Barrett expressed sympathy for the mother’s plight, saying domestic abuse cases are probably much harder to ameliorate than removing a child from a nuclear power plant in his hometown. King appreciates the question.

“It’s not just about physical abuse, she said. “It’s about emotional, psychological, verbal.”

Barrett, also casting doubt on a rule of thumb, suggested that petitioners asking for a specific guidance on domestic violence is like a “conduct with that kind of rule of extreme caution.”

Justice Neil Gorsuch note that there was a 9-day trial, so why not leave the district court ruling on serious jeopardy? Liu argued a bit about the procedural posture but admitted that they would accept a conclusion that denied the child’s return.

Arguing for the father, Richard Min said the recall order for BAS protects children in general, consistent with the general purpose of the convention and in the best interest of “this child”.

Judge John Roberts. Min concedes the point but argues that such measures are “implicit” in the text due to the language’s “risk of serious harm”.

“It’s almost like you’re adding a subsection,” Roberts retorted.

“The system is built on mutual trust and cooperation,” Min later argues – emphasizing that this is necessary under the convention to achieve “consistent outcomes” for children around the world. .

Breyer, when interrogating Min, suggested his vigilance about the impact of the current case when the court reached its verdict.

“I’m afraid to write anything,” he said – expressing concern that whatever the court decides will be used for some bad outcome somewhere and possibly be rejected by the lower courts. misunderstand.

“I’m not sure about which thumb [to put on the scale] and what those words should be,” Breyer said, adding that he though family courts have the hardest job in the court system. “It can’t be an absolute rule in my opinion.”

Min then responded to a theory from longstanding liberal justice about not sending a child back to Afghanistan and said that was indeed the kind of consideration that is valid under Second Round rules.

“We believe it is very simple for the court to consider all evidence in favor of them that either party presents in the proceedings,” argued the father’s attorney. He added that denying a convention-based deletion must overcome the strong assumption that the courts in the host country are likely to provide the best interests of the child.

King, in dismissing, addresses what she feels is the proceedings in Italy so far, arguing that there isn’t really much action taken there, “just placeholder dates” .

“[There is] No heavy thumbs or obligations to return [a child] once a serious risk is demonstrated,” she argues – repeating at least a second time that the mother has demonstrated a severe risk “by the extremely high standards in this country”, that is “evidence.” clear and convincing”.

The judges gave little indication of their final call.

[Image via STEFANI REYNOLDS/AFP/Getty Images]

Is there a trick we should know? [email protected] SCOTUS listens to arguments about international custody cases

James Brien

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