Golan v. Saada

The court of appeal imposed “an atextual, categorical requirement that courts consider all possible ameliorative measures” on a discretionary decision, inconsistent with the treaty’s goals.

A married couple, Petitioner did not return to Italy with her and Respondent’s child. Respondent filed a kidnapping complaint in Italian court, and a petition in U.S. District Court, seeking an order for the child’s immediate return to Italy, under the Hague Convention on the Civil Aspects of International Child Abduction and accompanying U.S. law, the International Child Abduction Remedies Act (ICARA). The District Court determined that Italy was the child’s “habitual residence,” and ordered his return with ameliorative measures. The Second Circuit remanded on appeal, finding the District Court’s ameliorative measures did not do enough to mitigate the risk to the child, because of the lower court’s additional finding of a “grave risk of harm,” and therefore must consider all possible ameliorative measures. After the District Court conducted a nine-month hearing to decide appropriate measures, the Second Circuit affirmed. On appeal, the Supreme Court held that the court of appeal imposed “an atextual, categorical requirement that courts consider all possible ameliorative measures” on a discretionary decision, inconsistent with the treaty’s goals. A petition under ICARA is not intended to be a custodial determination, and a timely resolution is important for the provisional, final remedy to proceed. Reversed and remanded.