19‐820‐cv
Saada v. Golan




                                    In the
             United States Court of Appeals
                           for the Second Circuit


                               AUGUST TERM 2018

                                  No. 19‐820‐cv

                              ISACCO JACKY SAADA,
                                Petitioner‐Appellee,

                                        v.

                             NARKIS ALIZA GOLAN,
                             Respondent‐Appellant.




                 On Appeal from the United States District Court
                      for the Eastern District of New York



                             ARGUED: JUNE 18, 2019
                             DECIDED: JULY 19, 2019



Before: WINTER, CABRANES, and RAGGI, Circuit Judges.
      Respondent‐Appellant Narkis Aliza Golan (“Ms. Golan”)
appeals from a final order of the United States District Court for the
Eastern District of New York (Ann M. Donnelly, Judge) granting
Petitioner‐Appellee Isacco Jacky Saada’s petition under the Hague
Convention on the Civil Aspects of International Child Abduction (the
“Hague Convention”) for the return of the parties’ minor child, B.A.S.,
to Italy. On appeal, Ms. Golan challenges the District Court’s
conclusion that Italy is B.A.S.’s “habitual residence” for the purposes
of the Hague Convention. She also contends that the District Court
erred in granting the petition subject to certain conditions
notwithstanding its determination that repatriating B.A.S. would
expose him to “a grave risk of harm.” The District Court’s March 22,
2019 order is AFFIRMED IN PART and VACATED IN PART, and
the cause is REMANDED for further proceedings.




                         MARISSA C.M. DORAN (Claudia
                         Hammerman, Karen R. King, and Daniel H.
                         Levi, on the brief), Paul, Weiss, Rifkind,
                         Wharton & Garrison LLP, New York, NY,
                         for Respondent‐Appellant.

                         RICHARD MIN, Burger Green & Min LLP,
                         New York, NY, for Petitioner‐Appellee.




                                   2
Rachel G. Skaistis, Amal El Bakhar, and
Harry Black, Cravath, Swaine & Moore LLP,
New York, NY, for Amici Curiae Dean Jeffrey
L. Edleson, Ph.D.; Professor Steven Marans,
Ph.D.; Professor Evan Stark, Ph.D.; Dr. Luz
Towns‐Miranda, Ph.D.; Dr. Marie G.
Rudden, M.D.; the National Association of
Social Workers; and the Leadership Council
on Child Abuse and Interpersonal Violence.

Anita F. Stork, Covington & Burling LLP,
San Francisco, CA, Shailee Diwanji Sharma,
Covington & Burling LLP, New York, NY,
and Ryan R. Roberts, Covington & Burling
LLP, Palo Alto, CA, for Amici Curiae
Sanctuary for Families, Inc.; Pathways to
Safety International; Domestic Violence
Legal Empowerment and Appeals Project;
Her Justice Inc.; Day One New York Inc.;
National Network to End Domestic
Violence; Lawyers Committee Against
Domestic Violence New York; Safe Center
LI, Inc.; Legal Momentum; Professor
Deborah Epstein, Co‐Director, Georgetown
University Law Center Domestic Violence
Clinic; Battered Mothers Custody
Conference; Lansner & Kubitschek;




         3
                                Professor Leigh Goodmark, University of
                                Maryland Francis King Carey School of
                                Law; Professor Merle Weiner; New York
                                Legal Assistance Group; Safe Horizon, Inc.;
                                Urban Resource Institute; and Dr. Jacquelyn
                                Campbell, National Program Director,
                                Robert Wood Johnson Foundation Nurse
                                Faculty Scholars.




JOSÉ A. CABRANES, Circuit Judge:

      Under the Hague Convention on the Civil Aspects of
International Child Abduction (the “Hague Convention”),1 as
implemented by the International Child Abduction Remedies Act,2 “a
child abducted in violation of rights of custody must be returned to
the child’s country of habitual residence, unless certain exceptions
apply.”3 In this appeal, we address the scope of a district court’s
discretion to direct that a child be returned where “there is a grave risk
of harm that his or her return would expose the child to physical or



      1 The Hague Convention on the Civil Aspects of International Child
Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (“Hague
Convention”).
      2   22 U.S.C. § 9001 et seq.
      3   Abbott v. Abbott, 560 U.S. 1, 5 (2010) (internal quotation marks omitted).




                                           4
psychological harm or otherwise place the child in an intolerable
situation.”4

      Respondent‐Appellant Narkis Aliza Golan (“Ms. Golan”)
appeals from a final order of the United States District Court for the
Eastern District of New York (Ann M. Donnelly, Judge) granting
Petitioner‐Appellee Isacco Jacky Saada’s (“Mr. Saada”) petition under
the Hague Convention for the return of the parties’ minor child, B.A.S.,
to Italy. On appeal, Ms. Golan challenges the District Court’s
conclusion that Italy is B.A.S.’s habitual residence, and its decision to
grant the petition subject to certain conditions notwithstanding its
determination that repatriating B.A.S. would expose him to a grave
risk of harm.

      We agree with the District Court’s habitual‐residence
determination. But we conclude that the District Court erred in
granting Mr. Saada’s petition because the most important protective
measures it        imposed     are unenforceable and    not otherwise
accompanied by sufficient guarantees of performance. Accordingly,
the District Court’s March 22, 2019 order is AFFIRMED IN PART and
VACATED IN PART, and the cause is REMANDED for further
proceedings concerning the availability of alternative ameliorative
measures.




      4   Hague Convention, art. 13(b).




                                          5
                           I.     BACKGROUND

       We draw the facts, which are undisputed for the purposes of
this appeal, from the District Court’s thorough recitation.5

       A. The Parties’ Relationship

       On June 13, 2014, Ms. Golan, a United States citizen then living
in New York, and Mr. Saada, an Italian citizen and resident, met at a
wedding in Milan, Italy. Approximately two months later, Ms. Golan
relocated to Milan and moved in with Mr. Saada. The parties were
married on August 18, 2015, and Ms. Golan became pregnant shortly
thereafter. The couple’s first and only child, B.A.S., was born in Milan
in June 2016.

       Mr. Saada and Ms. Golan’s “relationship was violent and
contentious almost from the beginning.”6 The couple “fought
frequently,” and “Mr. Saada physically, psychologically, emotionally
and verbally abused Ms. Golan.”7 Among other things, Mr. Saada
yelled at Ms. Golan, called her names, slapped her, pushed her, pulled
her hair, threw a glass bottle in her direction, and, during a
conversation with Ms. Golan’s brother, threatened to kill her. These
incidents, many of which occurred in the presence of B.A.S., “were not


       5 See Saada v. Golan, No. 18‐CV‐5292(AMD)(LB), 2019 WL 1317868 (E.D.N.Y.
Mar. 22, 2019).
       6   Id. at *5.
       7   Id. at *4.




                                      6
sporadic or isolated . . . but happened repeatedly throughout the
course of the parties’ relationship.”8

      Despite the significant problems in their relationship, Mr. Saada
and Ms. Golan continued living together in Milan after B.A.S. was
born. They secured for B.A.S. an Italian passport, medical coverage,
identification cards, and a certificate of residence, and enrolled B.A.S.
in a local daycare. With the exception of several trips abroad, B.A.S.
lived continuously in Milan for the first two years of his life.

      In July 2018, Ms. Golan traveled with B.A.S. to the United States
to attend her brother’s wedding. After the wedding, Ms. Golan elected
not to return to Italy and moved with B.A.S. to a confidential domestic
violence shelter in New York.

      B. Procedural History

      In Fall 2018, Mr. Saada filed a criminal complaint against Ms.
Golan and initiated civil proceedings, including custody proceedings,
in Italy. He also commenced this action under the Hague Convention.
In January 2019, the District Court held a nine‐day bench trial at which
seventeen lay and expert witnesses, including Mr. Saada and Ms.
Golan, testified.

      On March 22, 2019, the District Court granted Mr. Saada’s
petition. After a careful review of the evidence, the District Court first
concluded that Italy is B.A.S.’s habitual residence for the purposes of


      8   Id. at *18 (internal quotation marks omitted).




                                          7
the Hague Convention. The District Court acknowledged that Ms.
Golan had repeatedly expressed an intent to return to the United
States, and that Mr. Saada was aware of this intent. In the District
Court’s view, however, the totality of the circumstances—and, in
particular, Ms. Golan’s conduct—“established B.A.S. as a[n] habitual
resident of Italy.”9

      Next, the District Court determined that Ms. Golan had
established that repatriating B.A.S. to Italy would expose him to a
grave risk of harm. Specifically, the District Court concluded that
exposing B.A.S. to severe and continuing domestic violence of the type
documented in this action could have significant adverse effects on his
psychological health and development. This conclusion was based on
both undisputed expert testimony and the facts of this case, including
the District Court’s findings that “Mr. Saada has to date not
demonstrated a capacity to change his behavior,” has “minimized or
tried to excuse his violent conduct,” and “could not control his anger
or take responsibility for his behavior.”10

      Finally, the District Court held that a suite of conditions—or
“undertakings”—would “sufficiently ameliorate the grave risk of
harm to B.A.S.” and granted Mr. Saada’s petition subject to those
conditions.11 The undertakings include, among others, requirements
that Mr. Saada (1) give Ms. Golan $30,000 before B.A.S. is returned to

      9   Id. at *16.
      10   Id. at *18.
      11   Id. at *19.




                                    8
Italy, for housing, financial support, and legal fees; (2) stay away from
Ms. Golan; and (3) visit B.A.S. only with Ms. Golan’s consent.

       This appeal followed.

                                  II.     DISCUSSION

       On appeal, Ms. Golan challenges the District Court’s conclusion
that Italy is B.A.S.’s habitual residence, and its decision to grant Mr.
Saada’s petition subject to the enumerated undertakings. We affirm
the District Court’s habitual‐residence determination but vacate its
order insofar as it grants Mr. Saada’s petition.

       A. Standard of Review

       In cases arising under the Hague Convention, we review a
district court’s factual findings for clear error and its legal
conclusions—including its interpretation of the Convention and its
application of relevant legal standards to the facts—de novo.12 Thus, as
relevant here, although “[t]he habitual residence inquiry is heavily fact
dependent, . . . whether the relevant facts satisfy the legal standard is
a question of law that we review de novo.”13


       12   Ozaltin v. Ozaltin, 708 F.3d 355, 368 (2d Cir. 2013).
       13 Guzzo v. Cristofano, 719 F.3d 100, 109 (2d Cir. 2013). On June 10, 2019, the
Supreme Court granted certiorari to resolve a split among the Courts of Appeal
concerning the appropriate standard of review for habitual‐residence
determinations. See Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018) (en banc), cert.
granted, No. 18‐935, 2019 WL 266837 (U.S. June 10, 2019). Since we affirm the District
Court’s conclusion that Italy is B.A.S.’s habitual residence under the least




                                             9
      B. Country of Habitual Residence

      We take up first Ms. Golan’s challenge to the District Court’s
conclusion that Italy is B.A.S.’s habitual residence for the purposes of
the Hague Convention.

      In determining habitual residence, courts in this Circuit “inquire
into the shared intent of those entitled to fix the child’s residence
(usually the parents) at the latest time that their intent was shared,”
considering both “actions” and “declarations.”14 We have observed
that “[f]ocusing on intentions gives contour to the objective, factual
circumstances surrounding the child’s presence in a given location.”15
But we have also cautioned that, at bottom, this inquiry “is designed
simply to ascertain where a child usually or customarily lives.”16

      On review, we see no error in the District Court’s conclusion
that Italy is B.A.S.’s country of habitual residence. We acknowledge
that certain evidence, particularly the declarations of both parties
concerning Ms. Golan’s intent to return to the United States, supports
Ms. Golan’s position. But we agree with the District Court that the
parties’ actions tell a different story—namely, that Italy, where B.A.S.



deferential standard—de novo review—we would necessarily affirm under the
more deferential standards that other Circuits have applied.
      14   Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005).
      15   Id. at 132.
      16   Guzzo, 719 F.3d at 109.




                                            10
spent almost the entirety of the first two years of his life, is the country
where he “usually or customarily lives.”17 Accordingly, we affirm the
District Court’s habitual‐residence determination.

       C. The Undertakings

       Ms. Golan also challenges the District Court’s decision to grant
Mr. Saada’s petition notwithstanding its determination that
repatriating B.A.S. would expose him to a grave risk of harm.18 In
particular, Ms. Golan contends that the District Court erred in
concluding that a suite of undertakings—or promises by Mr. Saada—
sufficiently ameliorates the grave risk of harm to B.A.S.

       We have long recognized that district courts are “vested with
considerable discretion under the [Hague] Convention.”19 Thus, even
where the abducting parent establishes that repatriating his or her
child would expose the child to a grave risk of harm, a district court
“is not necessarily bound to allow the child to remain with the
abducting parent.”20 In exercising their discretion in such cases,


       17   See id.

        Mr. Saada does not contest the District Court’s grave‐risk determination,
       18

and we do not revisit it here.
       19   Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013).
       20 Blondin v. Dubois, 189 F.3d 240, 246 n.4 (2d Cir. 1999); see also Hague
Convention, art. 13 (permitting, but not requiring, contracting states to decline “to
order the return of the child” if certain exceptions are established); U.S. Dep’t of
State, Hague International Child Abduction Convention; Text and Legal Analysis,
51 Fed. Reg. 10,494, 10,509 (Mar. 26, 1986) (“[A] finding that one or more of the




                                            11
district courts must “take into account any ameliorative measures (by
the parents and by the authorities of the state having jurisdiction over
the question of custody) that can reduce whatever risk might
otherwise be associated with a child’s repatriation.”21 Insofar as certain
of these measures might be undertaken by courts in the country of
habitual residence, then “the exercise of comity that is at the heart of
the [Hague] Convention” requires us “to place our trust in th[ose]
court[s] . . . to issue whatever orders may be necessary to safeguard
children who come before [them].”22

        At the same time, the jurisdiction of our district courts is not
limitless. As the Eleventh Circuit has aptly observed, “reviewing
courts are free to enter conditional return orders” but “retain no power
to enforce those orders across national borders.”23 And in those
instances in which our courts lack jurisdiction to redress non‐
compliance, “even the most carefully crafted conditions of return may




exceptions provided by Articles 13 and 20 are applicable does not make refusal of
a return order mandatory. The courts retain the discretion to order the child
returned even if they consider that one or more of the exceptions applies.”).
        21   Blondin, 189 F.3d at 248.
        22   Id. at 248–49.
        23Baran v. Beaty, 526 F.3d 1340, 1350 (11th Cir. 2008); cf. Ermini v. Vittori, 758
F.3d 153, 168 (2d Cir. 2014) (“Once a determination properly applying the
Convention to the facts at hand has been made, all other issues leave the realm of
the treaty’s domain. The Convention is not, and cannot be, a treaty to enforce future
foreign custody orders, nor to predict future harms or their dissipation.”).




                                           12
prove ineffective in protecting a child from risk of harm.”24 We
conclude that, in cases in which a district court has determined that
repatriating a child will expose him or her to a grave risk of harm,
unenforceable undertakings are generally disfavored,25 particularly
where there is reason to question whether the petitioning parent will
comply with the undertakings and there are no other “sufficient
guarantees of performance.”26

       In this case, it is undisputed that many of the undertakings the
District Court imposed are unenforceable because they need not—or
cannot—be executed until after B.A.S. is returned to Italy. This
includes several conditions that, under the circumstances, are essential
to mitigating the grave risk of harm B.A.S. faces—namely, promises
by Mr. Saada to stay away from Ms. Golan after she and B.A.S. return
to Italy and to visit B.A.S. only with Ms. Golan’s consent.27 The District
Court’s factual findings provide ample reason to doubt that Mr. Saada


       24Baran, 526 F.3d at 1350; see also Danaipour v. McLarey, 286 F.3d 1, 21 (1st
Cir. 2002) (“The court entertaining the petition must recognize the limits on its
authority and must focus on the particular situation of the child in question in order
to determine if the undertakings will suffice to protect the child.”).
       25See Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007) (“Where a grave risk
of harm has been established, ordering return with feckless undertakings is worse
than not ordering it at all.”).
       26 See Walsh v. Walsh, 221 F.3d 204, 219 (1st Cir. 2000) (“A potential grave risk
of harm can, at times, be mitigated sufficiently by the acceptance of undertakings
and sufficient guarantees of performance of those undertakings.” (emphasis added)).
       27   See note 11 and accompanying text, ante.




                                          13
will comply with these conditions.28 And the record does not
otherwise contain evidence of sufficient guarantees of performance.
Under the circumstances, we are not convinced that these particular
undertakings are sufficient to mitigate the undisputed grave risk of
harm that B.A.S. faces if returned to Italy. Accordingly, we vacate the
District Court’s order insofar as it granted Mr. Saada’s petition subject
to the conditions enumerated therein.

       D. Availability of Alternative Ameliorative Measures

       Having determined that the undertakings the District Court
imposed are insufficient under the circumstances presented here, we
must determine whether to direct the District Court to deny Mr.
Saada’s petition or to remand for further proceedings concerning the
availability of alternative measures. In our view, the latter course is
more appropriate.

       As we have previously observed, in cases of this nature, it is
important for courts to consider “the [full] range of remedies that
might allow both the return of the children to their home country and
their protection from harm.”29 District courts have “broad equitable
discretion to develop a thorough record” on potential ameliorative



       28  See note 10 and accompanying text, ante; see also Saada, 2019 WL 1317868,
at *18 (recounting testimony of Mr. Saada’s expert that Mr. Saada’s “reliability was
‘down the tube’”).
       29   Blondin, 189 F.3d at 249 (emphasis in original).




                                           14
measures.30 And, in our view, it is by no means inevitable that there
will be no conditions conducive to balancing our commitment to
ensuring that children are not exposed to a grave risk of harm with our
general obligation under the Hague Convention to allow courts in the
country of habitual residence to address the merits of custody
disputes.31

       On review, we cannot conclude that the record before the
District Court would have permitted a finding that this is such a case.
Accordingly, we think it appropriate to remand the cause to the
District Court for further proceedings. On remand, the District Court
must determine whether there exist alternative ameliorative measures
that are either enforceable by the District Court or, if not directly
enforceable, are supported by other sufficient guarantees of
performance.

       In doing so, the District Court may consider, among other
things, whether Italian courts will enforce key conditions such as Mr.
Saada’s promises to stay away from Ms. Golan and to visit B.A.S. only
with Ms. Golan’s consent. There is some dispute concerning whether
it is appropriate for courts in the United States to condition orders of

       30   Id.
       31 See Blondin v. Dubois, 238 F.3d 153, 163 (2d Cir. 2001) (affirming district
court’s decision declining to order return and emphasizing that “uncontested expert
testimony” established that “the children will face a recurrence of traumatic stress
disorder if repatriated” (emphasis added)); see also id. at 162 (noting that “the
authorities in [the country of habitual residence]—for reasons entirely beyond their
control—cannot provide the children with the necessary protection”).




                                         15
return on a foreign court’s entry of an order containing similar
protective measures.32 But we do not think that international comity
precludes district courts from ordering, where practicable, that one or
both of the parties apply to courts in the country of habitual residence
for any available relief that might ameliorate the grave risk of harm to
the child.33 So long as the purpose of such an order is to ascertain the
types of protections actually available, and the district court does not
condition a child’s return on any particular action by the foreign court,
there is little risk that this “practice would smack of coercion of the
foreign court.”34



       32  Compare Danaipour, 286 F.3d at 23 (“Conditioning a return order on a
foreign court’s entry of an order . . . raises serious comity concerns.”), with Baran,
526 F.3d at 1349 (“Undertakings may take many forms, including direct orders by
the reviewing court providing conditional return of the child and mirror‐orders
(also called safe harbor orders) requiring the petitioning parent to obtain a
conditional custody order in the country of habitual residence before return of the
child is ordered.”).
       33 In most cases, the international comity norms underlying the Hague
Convention require courts in the United States to assume that an order by a foreign
court imposing protective measures will guarantee performance of those measures.
See note 22 and accompanying text, ante. But, in certain circumstances, even a
foreign court order might not suffice. See Simcox, 511 F.3d at 608 (“[U]ndertakings
would be particularly inappropriate . . . in cases where the petitioner has a history
of ignoring court orders.”); Walsh, 221 F.3d at 221 (rejecting use of undertakings
where petitioning parent “violated the orders of the courts of Massachusetts” and
“the courts of Ireland,” and there was “every reason to believe that he [would]
violate the undertakings he made to the district court in this case and any barring
orders from the Irish courts”).
       34   Danaipour, 286 F.3d at 23.




                                         16
       Here, the District Court has already found—and the parties do
not dispute—that Italian courts are authorized by Italian law to enter
“criminal and civil court orders of protection” and “orders of
supervised visitation during the pendency of custody proceedings.”35
Although the Italian courts have not entered any such orders to date
in the matter before us, this might be attributable in part to the parties’
failure to apply for relief, in the ongoing custody proceedings or
otherwise. On remand, the District Court may consider whether it is
practicable at this stage of the proceedings to require one or both of
the parties to do so.36 The District Court may then take into account
any corresponding decision by the Italian courts in determining
whether there are sufficient guarantees of performance of protective
measures that will mitigate the grave risk of harm B.A.S. faces if
repatriated.

       This is, of course, just one of several avenues the District Court
may elect to pursue. As an initial matter, the District Court can attempt
to revise certain of the undertakings it imposed in a manner that
would render them directly enforceable—for example, by requiring
Mr. Saada to comply with the condition before B.A.S. is repatriated.37

       35   See Saada, 2019 WL 1317868, at *13.
       36And, it almost goes without saying, the parties can petition the Italian
courts to impose protective measures even without prompting by the District
Court.
       37We note, for instance, that the condition pertaining to monetary support
requires Mr. Saada to act before B.A.S. returns to Italy. See note 11 and
accompanying text, ante.




                                          17
In addition, as we have previously recognized, the District Court can
use its “broad equitable discretion” to “request[ ] the aid of the United
States Department of State, which can communicate directly with” the
government of Italy to ascertain whether it is willing and able to
enforce certain protective measures.38 Finally, the District Court can
solicit from the parties additional evidence concerning whether—and,
if so, to what extent—Mr. Saada has undertaken to abide by any of the
currently unenforceable conditions. We leave these matters to the
informed discretion of the District Court and “trust that [it] will
conduct the[ ] proceedings on remand with the same dispatch that
properly characterized its initial consideration” of the petition.39

                                III.   CONCLUSION

      To summarize, we hold that:

      (1) The District Court did not err in concluding that Italy is
             B.A.S.’s “habitual residence” for the purposes of the Hague
             Convention.

      (2) In cases in which a court has determined that repatriating a
             child will expose him or her to “a grave risk of harm,”
             unenforceable undertakings are generally disfavored,
             particularly where there is reason to question whether the
             petitioning parent will comply with the undertakings and
             there are no other sufficient guarantees of performance.

      38   Blondin, 189 F.3d at 249.
      39   Id.




                                        18
         Here, the District Court erred in granting the petition subject
         to (largely) unenforceable undertakings despite adverse
         factual findings concerning Mr. Saada’s credibility and the
         absence of other sufficient guarantees of performance.

      (3) Because the record before the District Court does not support
         the conclusion that there exist no protective measures
         sufficient to ameliorate the grave risk of harm B.A.S. faces if
         repatriated, remand for further proceedings is appropriate.

      (4) On remand, the District Court should consider whether there
         exist alternative ameliorative measures that are either
         enforceable by the District Court or supported by other
         sufficient guarantees of performance.

      (5) Where, as here, the safety of a minor is at risk, the District
         Court, if it deems practicable, may direct one or both of the
         parties to petition Italian courts for the imposition of any
         appropriate protective measures. The District Court may
         take into account any corresponding decision by the Italian
         courts in determining whether to issue an order of return.

      For the foregoing reasons, the District Court’s March 22, 2019
order is AFFIRMED IN PART and VACATED IN PART, and the
cause is REMANDED for further proceedings. In the interest of
judicial economy, any future appeals in this action will be referred to
this panel.




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