MK Family Law

On April 5, 2021, the U.S. Supreme Court invited the Acting Solicitor General to file a brief in the case of Golan v. Saada, to express the views of the United States.  This blog has featured a variety of updates on this case over the past year.  The issue presented to the Supreme Court was:  "The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is: Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding."   Ms. Golan's Petition for a Writ of Cert can be found here .  Mr. Saada's Affirmation in Opposition can be found here .  Ms...

On March 1, 2021, Mr. Saada filed his response to Ms. Golan's petition to the U.S. Supreme Court, where she asked the court to answer " Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child not withstanding the grave risk finding ."  Mr. Saada takes the view that "ameliorative measures" are simply one tool available to a court, in that a court always has the discretion to return a minor child, even if Respondent demonstrates an exception by the requisite burden of proof from ICARA.  Mr. Saada argues that Ms. Golan is simply seeking to restrict the court's discretion, thereby undermining the goals of the treaty.  Specifically, in addressing why cert should not be granted, Mr. Saada says, "To be clear, none of the Circuits have established a blanket rule that it is inappropriate to consider ameliorati...

In the recent case of In re MVU , the Appellate Court of Illinois affirmed an order refusing return of a minor child to its habitual residence of Mexico because that would present a grave risk of harm to the child based on the father's domestic violence of the mother.   The court in opining on the grave risk acknowledged that most jurisprudence on the Hague Abduction Convention arises from federal courts.  This particular case was brought in a state court where there was a parentage case pending over the same child (which was stayed when this Hague Abduction return petition was filed).  At trial, the taking-parent mother, presented evidence about several situations she argued formed the basis of a grave risk of harm to returning the child.  The situations included: an altercation where she says the father choked her while she was holding the child; another where the father threatened her that if she took the child, he would kill her; and another where the father...

The Second Circuit addressed a 2nd appeal in the Saada v. Golan case on October 28, 2020, and affirmed Judge Donnelly's May 5, 2020 order to return the minor child to Italy.  As a reminder, this family has been litigating the father's Hague Abduction Convention return petition up and down the second circuit for a few years.  The original trial yielded a finding that the child would be subject to a grave risk of psychological harm if returned to Italy, but the court fashioned certain "undertakings" to nonetheless make the child's return possible.  The mother, Ms. Golan, appealed.  The Second Circuit acknowledged that any undertakings had to be enforceable, and it remanded the matter to Judge Donnelly for further review of what ameliorative measures can and should be put in place that would enable a safe return.  After 9 months, Judge Donnelly again ordered the child returned , and altered the ameliorative measures.  In those 9 months, additional things had ...

On May 11, 2020,  the Second Circuit Court of Appeals affirmed the return of a minor child to Ecuador in the case of Valles Rubio v. Veintimilla Castro , 813 Fed.Appx. 619 (2020).  The key issue on appeal revolved around the grave risk of harm to the minor child if returned to Ecuador, and more specifically the ameliorative measures available to ensure a safe repatriation of the minor child.  “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.”  In this case, the court concluded there was a grave risk of harm, but further concluded that the Ecuadorian courts were capable and willing to protect the child.  The Mother appealed, arguing that the court did not sufficiently develop the record to support its conclusion that there are enforceable ameliorative measures in Ecuad...

On September 16, 2020, the U.S. District Court for the District of Arizona returned the parties' children to their habitual residence of Germany.  In the case of Radu v. Shon , the Respondent Mother (Shon) conceded that her removal of the children from Germany in June 2019 was wrongful.  She argued 2 exceptions to their return: consent/acquiescence and grave risk of harm.  The court focused predominantly on the grave risk of harm arguments. Shon argued that the Petitioner Father (Radu) was emotionally and psychologically abusive towards her and the children in Germany, causing them to fear Radu.  Shon alleged that Radu had an explosive temper, he yelled, degraded her, and used derogatory language. Further, she argued that Radu banged his hands on the table, threw objects, and once slapped her.  The Court noted that none of this caused the children to require medical attention and no one sought a protective order or filed a police report because of this behavior....

The U.S. Court of Appeals for the 2nd Circuit recently affirmed a return order issued pursuant to the Hague Abduction Convention in the Grano v. Martin matter.  The Respondent Mother appealed on three points.   First, she argued that the trial court misapplied the Monasky v. Taglieri test in deciding that the minor child was habitually resident in Spain.  The 2nd Circuit disagreed.  Monasky requires the trial judge to apply a totality-of-the-circumstances test when determining a child’s habitual residence.  It also determined that the trial judge’s decision would only be overturned upon a showing of clear error.  The 2nd circuit elaborated on several facts that lead the trial judge to find Spain was this child’s habitual residence, including purchases of real estate, registering the child as a Spanish citizen, finding a school for the child, and traveling to Spain in 2017 on a one-way ticket. Second, the Respondent Mother argued that the trial judge was wr...

In 2019, the 2nd Circuit Court of Appeals addressed the issue of undertakings in a 1980 Hague Child Abduction Convention case.  In the case of Saada v. Golan , 930 F.3d 533 (2nd Cir 2019), a mother was accused of wrongfully retaining the parties’ minor child in New York after visiting for a family wedding.  The mother argued it would be a grave risk of harm to the minor child if the child were returned to Italy.  The U.S. District Court for the Eastern District of New York found that, with certain undertakings, the risk could be ameliorated, and the child should nonetheless be returned.  The undertakings included such things as the father giving the mother money before the child was returned for housing, that the father agree to stay away from the mother after the return, and that the child only visit with the father with the mother’s consent (of course, pending an appropriate custody resolution in Italy).  The 2nd Circuit expressed concern that certain underta...