Golan v. Saada: Protecting Domestic Abuse Survivors in International Child Custody Disputes

• Author: Molshree -Molly- A. Sharma
• Pages: 251-270

251

Golan v. Saada: Protecting Domestic

Abuse Survivors in International Child

Custody Disputes

MOLSHREE “MOLLY” A. SHARMA*

Introduction

The Hague Convention on the Civil Aspects of International Child

Abduction (Convention) is a multilateral treaty with 102 signatories that

provides for the expeditious return of children to their country of habitual

residence when one parent removes the child to another country without

legal permission or agreement of the other parent.

1

However, if a court nds

that an exception applies, the court may deny return even when a child

was wrongfully removed, including in the case of a child who would be

placed in a “grave risk” of physical or psychological harm or an “intolerable

situation.”

2

In many cases, this “grave risk” of harm involves domestic

1. Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980,

T.I.A.S. No. 11,670, 1243 U.N.T.S. 89 [hereinafter Convention]; Status Table, 28: Convention of

25 October 1980 on the Civil Aspects of International Child Abduction, hague coNF. oN PRiv.

i

Nt

’

l

l

aW

,https://www.hcch.net/en/instruments/conventions/status-table/?cid=24 (last updated

Oct. 18, 2022) [hereinafter Convention Status Table].

2. Convention, supra note 1, art. 13 (stating that “[n]otwithstanding the provisions of the

preceding Article, the judicial or administrative authority of the requested State is not bound to

order the return of the child” if a listed exception is established by the party opposing return).

*Molshree “Molly” A. Sharma is a partner at Birnbaum Gelfman Sharma & Arnoux LLC.

Her family law practice includes international custody disputes under the Hague Convention on

the Civil Aspects of International Child Abduction. With special gratitude to Cora Leeuwenburg,

Associate Attorney, Birnbaum Gelfman Sharma & Arnoux LLC, who did extensive research and

work on this article.

Published in Family Law Quarterly, Volume 56, Numbers 2 & 3, 2022–2023. © 2023 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

252 Family Law Quarterly, Volume 56, Numbers 2 & 3

violence, including violence by one parent directed at the other parent—as

was seen in the 2022 Supreme Court case Golan v. Saada.3

Before 2022, there was a split in U.S. courts regarding whether a child

should be returned even when the “grave risk” exception was proven by

clear and convincing evidence, based on the availability of “ameliorative

measures” that could help to protect the child.4 In an effort to balance the

well-being of the child with the overarching purpose of the Convention,

some circuit courts required consideration of whether “ameliorative

measures” or “undertakings” were available that could limit the risk to

the child.5 Other circuits did not mandate consideration of these measures,

which are not specically mentioned anywhere in the Convention.

6

This

issue was recently claried by the Supreme Court through its ruling in

Golan v. Saada on June 15, 2022.7

This article will discuss the competing concerns that the courts have

attempted to balance in implementing the Convention, review the previous

split in the circuits and weight given to ameliorative measures, and

summarize the ultimate decision in Golan v. Saada. Part I provides an

overview concerning the Convention and the “grave risk” exception to

return. Part II discusses the lower court proceedings in Golan v. Saada.

Part III reviews the issues before the Supreme Court as presented in the

certiorari petition and response. Part IV summarizes the circuit split that

preceded the Golan decision. Part V reviews the Supreme Court’s decision

in favor of Narkis Golan, the mother and survivor of domestic violence

who had asserted the “grave risk” defense in this case. Part VI discusses

the proceedings on remand and Ms. Golan’s tragic death. The Conclusion

considers the decision’s signicance.

3. 142 S. Ct. 1880 (2022); Julianne McShane, Family Questions Death of Domestic Violence

Victim Whose Case Made It to Supreme Court Following Yearslong Custody Battle, NBC NeWs

(Oct. 26, 2022, 2:43 PM EDT), https://www.nbcnews.com/news/crime-courts/supporters-vow-

continue-ght-deceased-domestic-violence-victim-whose-rcna53966 (“Although there are no

denitive statistics, research estimates that domestic violence could be a factor in up to 70% of

Hague Convention child abduction cases.”).

4. Golan, 142 S. Ct. at 1891 & n.6; see Tracy Bateman Farrell, Construction and Application

of Grave Risk of Harm Exception in Hague Convention on the Civil Aspects of International

ChildAbduction as Implementedin International Child Abduction Remedies Act, 42 U.S.C.A. §

11603(e)(2)(A), 56 a.l.R. Fed. 2d 163 (2011).

5. Golan, 142 S. Ct. at 1887, 1890 n.4.

6. Id. at 1891 n.6, 1892; see Convention, supra note 1.

7. Golan, 142 S. Ct. 1880.

Published in Family Law Quarterly, Volume 56, Numbers 2 & 3, 2022–2023. © 2023 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.