It is rare that there are United States Supreme Court cases that affect family law. Almost every family law case is addressed through circuit or district courts in the family’s state of residence and then if appealed, it goes to a district or area court of appeals, followed by a state supreme court review, if needed. Thus, when a case involving family law matters makes it all the way to the United States Supreme Court, it is something to pay attention to in family law.
The case of Golan v. Saada, 20-1034, a United States Supreme Court case was decided on June 15, 2022. This was a unanimous vote of 9-0 from the Supreme Court justices holding that a court is not required to review or examine all ameliorative measures before denying a Hague Convention petition for a return of the child. A Hague Convention petition addresses a situation when a child has been removed to another country- either by initial agreement and then staying longer than was agreed upon or directly removed and kidnapped to another country. If a court determines that a return of the child exposes him or her to a “grave risk of harm” the court is permitted to make a finding that protects that child. In the case of Golan v. Saada, the mother (Golan) is a US citizen who married an Italian citizen (Saada). The parties had a son and in 2008, the mother and the child flew to the United States to attend a wedding. From there, the mother and the minor child sought protection through a domestic violence shelter. The father followed by filing a petition for the return of the parties’ son to Italy under the Hague Convention. The court made an initial determination that there was grave risk of harm to the child, but still ordered the child to be returned to Italy. The district court found that appellate legal precedent required the court to determine all options that would allow the child to return safely to his home country, in this case Italy.
In the Golan case, the father had set forth a variety of protective measures for the mother that included providing her with $30,000 for living and legal expenses pending a court order on child support, staying away from the mother until the child custody dispute was adjudicated, enrolling in therapy to address concerns of domestic violence and not asking the court to award to the father legal attorney fees and expenses from the proceeding. This determination from the district court was then appealed to the Second Circuit (a federal appeal) and the court found that the measures ordered (as proposed by the father) were insufficient and additional measures could be- and needed to be- put in place. The federal court ordered the district court to determine what measures could be further taken. The district court then added requirements that an Italian social services agency oversee the father’s parenting classes and therapy, visits between father and the son be supervised and that a protective order prevent the father from approaching the mother for a period of one year. The district court further ordered the father to pay $150,000 to facilitate the child and the mother returning to Italy and ordered that the father pay all costs for living of the mother and son while they relocated to Italy. The federal appeals court affirmed (approved this second order). However, the United States Supreme Court vacated the ruling, holding as follows:
“Nothing in the Convention's text either forbids or requires consideration of ameliorative measures in exercising this discretion. The Convention itself nowhere mentions ameliorative measures. Nor does ICARA, which, as relevant, instructs courts to “decide the case in accordance with the Convention” and accordingly leaves undisturbed the discretion recognized in the Convention.... The fact that a court may consider ameliorative measures concurrent with the grave risk determination, however, does not mean that the Convention imposes a categorical requirement on a court to consider any or all ameliorative measures before denying return once it finds that a grave risk exists.
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To summarize, although nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention. A district court's compliance with these requirements is subject to review under an ordinary abuse of discretion standard.”
The Golan case will now go back to the federal district court to determine whether the child should be permitted to return to live in the United States or under what circumstances the child can be ordered to reside in Italy. The Supreme Court ordered “The district court should determine whether the measures in question are adequate to order return in light of its factual findings concerning the risk to [the child], bearing in mind that the convention sets as a primary goal the safety of the child.”
This case provides lawyers addressing Hague convention (international abduction and relocation cases) with strong direction for future cases. While not required to consider ameliorative measures, the Supreme court seemed to be very strongly supportive of them and it clearly worked to the benefit of the father that he had come up with as many options as possible and expressed a willingness to engage in any steps necessary. The court seemed focused on measures that would be protective of the child, would not cause delay in adjudication of the case and would not overtake the custody case. The court also implied that it could be an abuse of discretion by a trial court for a trial judge to refuse to consider the proposed measures that a parent places before the court. This holding will likely result in parents seeking the return of the children (over the objection of the other parent claiming grave risk of harm) trying to be as creative as possible to offer as many potential solutions as possible to support the return of their children to their home country. On the other hand, ameliorative measures often take extensive time to research and actually carry out. The Supreme Court stated in Golan, "it took the District Court took nine months to comply with the Second Circuit's directive on remand." Therefore, the potential benefit of ameliorative measures can be negated by the length of time it can take to determine and research ameliorative measures being offered or proposed. The Hague conventions’ premise is built upon "expeditious resolution" (citing the Blondin line of cases). Additionally, while the Court acknowledged that a District Court can implement ameliorative measures, the measures cannot be mandated, and must be recommended on "sound legal principles." It is also important to note that the District Court has the ability to decide that no ameliorative measures are appropriate, and no measures can overcome the "grave" risk of harm.
Next, a federal court case of Koral v. Saunders, No. 20 3663 (a Second Circuit Court of Appeals ruling on May 31, 2022).
In this case, involving fraud and misrepresentation, the parties exchanged their statements of assets and debts in a divorce in 2004. Both parties expressed satisfaction and agreed that their assets were fully disclosed and that no further inquiry was needed and the parties signed a settlement agreement. Following that settlement, the husband died in a car accident about ten years later and the ex-wife was deposed in conjunction with the wrongful death proceedings. At that time, the ex-wife was advised that the husband’s commercial property investments may have been worth millions of dollars. The ex-wife became concerned that the husband had misrepresented his financial picture to her, including potentially providing fraudulent appraisals and filed an action stating that the divorce settlement was induced by fraud. The ex-wife then filed a lawsuit against the former husband’s estate and the new wife, as the administrator of the former husband’s estate. The court dismissed the complaint for fraud on summary judgment. The ex-wife claimed the suit was timely filed because the statute of limitations did not start until she learned about the fraud which occurred at the deposition. The federal court found that the evidence does, in fact, suggest that the husband may have committed fraud in connection with his sale of real estate holdings and then concealed his fraud. The federal court sent this case back to the district court to determine if the statute of limitations was tolled (paused) due to concealment of the fraud.
What do we learn from this case? It is never a good idea to conceal or hide assets when you are providing disclosures of your assets, debts and income under oath.
If Pingel Family Law can help discuss situations similar to these with you, please call us today for a consultation at (816) 208-8130.