SCOTUS Addresses Domestic Violence in International Child Custody Commentary
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SCOTUS Addresses Domestic Violence in International Child Custody

International travel in child custody matters is often complicated. On June 15, 2022, the US Supreme Court ruled in Saada v. Golan that a court need not consider ameliorative or safety measures when assessing if a child should be returned to a country where there is a grave risk. The Supreme Court analyzed the application of the Hague Convention of Civil Aspects of International Child Abduction (Hague Convention) in a case that involves the intersection of foreign travel, child custody and domestic abuse.

The Hague Convention governs the return of children when they are taken to other countries during a custody dispute. The purpose of the Hague is to prevent the removal of children in order to get a leg up in a custody matter or avoid custody litigation in a country. The Hague Convention is not used to determine custody; it is merely used to establish jurisdiction of a custody matter and facilitate the return of the child. The Hague Convention was implemented in the United States through the passage of the International Child Abduction Remedies Act (ICARA), which helps interpret the Hague Convention.

In the case of Saada v. Golan, Mother and Father lived in Italy for the first two years of the child’s life. Mother traveled from Italy to the United States with the child to attend a wedding. Mother then remained in the United States with the child, refusing to return to Italy with the child.

The father filed in federal court in the United States under the Hague Convention and requested the child be returned to Italy. The federal district court determined the child’s habitual residence was Italy. Under the Hauge Convention, habitual residence is the country that the child has historically lived in.

When a habitual residence has been determined, the Hague Convention usually requires the expeditious return of the child to the habitual residence. Any court proceeding that determines the physical and legal custody of a child usually occurs in the local court after the Hague Convention issues have been resolved.

There are a few exceptions to the requirement for children to be returned to their habitual residence. One of those exceptions is if the return of the child to the habitual residence poses a “grave risk.” If a grave risk is present, then the court may “examine the full range of options that might make possible the safe return of the child.” The court may still return the child to the country of habitual residence even when a grave risk occurs. The court may also deny the return of the child because of the grave risk. The Supreme Court was asked to determine if the district court must address ameliorative measures (also called undertakings) that would make the child’s return safer and, if so, what level of consideration must the ameliorative measures be given.

In Saada, the initial ruling included safety provisions in the order returning the child to Italy. The district court had not verified, or could not verify, the enforceability or guarantee of the safety provisions it outlined. On the first appeal, the case was remanded to the trial court to determine enforceability or guarantee of the safety provisions.

On remand to the district court, a new order was entered that provided safety provisions that were verified. Some of those ameliorative measures included petitioning the appropriate Italian court for a protective order that prohibited the father from certain contact with the mother, including that the child be entrusted to Italian Social Services, confirming the child would continue to live with the mother, making sure the father’s visits were to be supervised in a neutral space, and required psychological counseling for the father. Additionally, the district court ordered the father to pay $150,000 to the mother to cover her and the child’s expenses to return to Italy. The funds were estimated to cover Mother and the child’s expenses until child support could be established in Italy.

The father petitioned the Italian Court for a mirror order that enforced the terms of the district court’s order pending further litigation in Italy. The Italian court entered a protective order with the necessary provisions that would last a year from the arrival of the child in Italy and then would be renewable. Upon proof that the safety provisions were in place and were enforceable or guaranteed, the trial court ordered that the child should be returned to Italy as the grave risk of harm was ameliorated and the Hague prioritizes the return of the child.

While the quick return of the child is a key goal of the Hague, the safety of the child is also important. The Supreme Court held that the district court did not have the opportunity to “engage in the discretionary inquiry as to whether to order or deny the return under the correct legal standard.” Contrary to the lower court’s opinion, the Supreme Court held there is no duty to consider ameliorative measures when a grave risk of harm has been established. Neither the Hague Convention, nor ICARA, specifically require the consideration of ameliorative or safety measures. The district court could consider the grave risk and the ameliorative measures simultaneously, but it does not have to. The district court also does not need to consider what is not presented to the court by counsel or the parties. Both the Hague Convention and ICARA call for a timely decision; they do not specifically require a court to address the safety provisions. The Supreme Court did consider the additional delay to the case from remand but determined that further delay was not enough to prevent remand for proper consideration. Therefore, the Saada case was remanded to the district court for further proceedings under the proper discretionary inquiry. Further proceeding will occur in the district court to review if return of the child to his habitual residence is appropriate.

While the decision may be in line with ICARA, it does not reflect the importance of returning a child to his/her home country. There is a fear that failing to consider safety measures when determining if a child should return to his/her home country could be negatively interpreted by other signatory countries.

Further, the United States argued in an amicus brief that the Supreme Court needed to take the case to resolve the inconsistency found in how domestic courts have ruled on the Hague Convention. This opinion does not endeavor to resolve the concern. The Supreme Court leaves it to the domestic courts to determine if and when ameliorative measures should be considered in a grave risk case. Without more specific guidance, the inconsistency in ruling will continue.

In its amicus brief the American Academy of Matrimonial lawyers argued to the consideration of safety measures, which included analyzing the enforceability, comprehensiveness, and exigency with which the grave risk would be reduced. This made sure the courts considered the safety measures and made sure the safety measures were more than just words on paper.

Ultimately, the Supreme Court ruling in Golan v. Saada is frustrating. It does not provide further guidance on how to proceed in grave risk cases involving domestic violence. The opinion also does not resolve the issue of the child in the instant case; it allows the case to continue to languish in the federal court system and further delays the ultimate ruling on the children’s return to the home country.

In cases involving a grave risk argument, the parties and counsel should be prepared to discuss ameliorative safety measures. As the Supreme Court leaves the consideration of such remedies to the discretion of the court, the parties and counsel should be prepared to discuss them even though they are not required. One does not want to show up unprepared. The lack of clear direction increases the burden on parties and counsel.


Julie R. Colton is a partner at Obermayer Rebmann Maxwell & Hippel LLP, where she focuses her practice in family law. She also serves as an adjunct professor at the University of Pittsburgh, where she teaches family law.


Suggested citation: Julie R. Colton, SCOTUS Addresses Domestic Violence in International Child Custody, JURIST – Professional Commentary, September 2, 2022,

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