Amicus Curiae Brief — Narkis Aliza Golan, Petitioner v. Isacco Jacky Saada

No. 20-1034

IN THE

Supreme Court of the United States

______________________________

NARKIS ALIZA GOLAN,

Petitioner,

v.

ISACCO JACKY SAADA,

Respondent.

______________________________

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

______________________________

BRIEF FOR AMICI CURIAE FORMER JUDGES

IN SUPPORT OF PETITIONER

______________________________

January 26, 2022

Hon. Shira A. Scheindlin

Counsel of Record

Eric S. Aronson

Kerry T. Cooperman

Lee C. Rarrick

Ryan S. Nelson

STROOCK & STROOCK

& LAVAN LLP

180 Maiden Lane

New York, NY 10038

(212) 806-5400

sscheindlin@stroock.com

Counsel for Amici Curiae

QUESTION PRESENTED

The Hague Convention on the Civil Aspects of

International Child Abduction requires that a child

wrongfully removed from a country in which he or she

was habitually resident must be returned to that

country for an adjudication of custody rights unless,

inter alia, there is a grave risk that return would

expose the child to physical or psychological harm.

The question presented is:

Whether, upon determining 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 despite the grave-risk

determination.

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF CITED AUTHORITIES ......................... iv

INTERESTS OF AMICI CURIAE ..............................1

SUMMARY OF ARGUMENT.....................................4

ARGUMENT ...............................................................6

I.

Mandating Judicial Analysis of

Ameliorative Measures Forces

US Courts Beyond their

Traditional Jurisdiction and

Interactions with Foreign Law .............6

a.

Civil Law Judges

Perform Investigatory

Functions; Common Law

Judges Do Not ...........................10

II.

Federal District Courts Have

Limited Family Law

Experience............................................13

III.

Mandatory Consideration of

Ameliorative Measures

Protracts Hague Convention

Cases and Saps Judicial

Resources .............................................17

ii

a.

Crafting Ameliorative

Measures Prevents

Courts from Resolving

Hague Convention Cases

in an Expedited Manner,

As Required by the

Convention ................................17

b.

The Second Circuit’s

Mandate Would Further

Strain Court Dockets,

Delaying Resolution of

Other Cases in Favor of

Crafting Unenforceable

Orders ........................................21

CONCLUSION ..........................................................23

iii

TABLE OF CITED AUTHORITIES

Page(s)

Cases:

Acosta v. Acosta,

725 F.3d 868 (8th Cir. 2013)..................................5

American Airlines, Inc. v. Block,

905 F.2d 12 (2d Cir. 1990) ...................................15

Animal Sci. Prods., Inc. v.

Hebei Welcome Pharm. Co.,

138 S. Ct. 1865 (2018)............................................6

Ankenbrandt v. Richards,

504 U.S. 689 (1992) ........................................14, 15

Baran v. Beaty,

526 F.3d 1340 (11th Cir. 2008)........................5, 23

Barber v. Barber,

62 U.S. (21 How.) 582 (1858) ...............................14

Blondin v. Dubois,

238 F.3d 153 (2d Cir. 2001) ...................................9

Chafin v. Chafin,

568 U.S. 165 (2013) ..............................................18

Clarke v. Marriott Int’l, Inc.,

403 F. Supp. 3d 474 (D.V.I. 2019) .........................7

Compania Sud Americana De Vapores, S.A.

v. I.T.O. Corp. of Baltimore,

940 F. Supp. 855 (D. Md. 1996) .............................6

Danaipour v. McLarey,

286 F.3d 1 (1st Cir. 2002) .......................... 5, 12, 16

iv

Deem v. DiMella-Deem,

941 F.3d 618 (2d Cir. 2019) .................................15

Euroboor B.V. v. Grafova,

No. 2:17-CV-02157, 2021 WL 4325694

(N.D. Ala. Sept. 23, 2021),

reconsideration denied, No. 2:17-CV2157, 2021 WL 5085952 (N.D. Ala.

Nov. 2, 2021) ..........................................................7

Ex parte Burrus,

136 U.S. 586 (1890) ..............................................14

Exxon Mobil Corp. v.

Allapattah Services, Inc.,

545 U.S. 546 (2005)..............................................13

Friedrich v. Friedrich,

78 F.3d 1060 (6th Cir. 1996)..................................9

Holder v. Holder,

392 F.3d 1009 (9th Cir. 2004)..............................21

Journe v. Journe,

911 F. Supp. 43 (D.P.R. 1995) .............................22

Kowalski v. Boliker,

893 F.3d 987 (7th Cir. 2018)................................15

Lloyd v. Loeffler,

694 F.2d 489 (7th Cir. 1982)................................16

M.A. Mobile Ltd. v.

Indian Inst. of Tech. Kharagpur,

400 F. Supp. 3d 867 (N.D. Cal. 2019)....................7

Mansell v. Mansell,

490 U.S. 581 (1989) ..............................................13

v

March v. Levine,

249 F.3d 462 (6th Cir. 2001)................................21

Mayaguez S.A. v. Citigroup, Inc.,

No. 16-CV-6788, 2021 WL 1799653

(S.D.N.Y. Apr. 30, 2021) ........................................7

Monasky v. Taglieri,

140 S. Ct. 719 (2020)............................................19

Moore v. Sims,

442 U.S. 415 (1979) ..............................................13

Ohio ex rel. Popovici v. Agler,

280 U.S. 379 (1930) ..............................................14

Onrust v. Larson,

No. 15-CV-122, 2015 WL 6971472

(S.D.N.Y. Nov. 10, 2015) ......................................22

Saada v. Golan,

833 F. App’x 829 (2d Cir. 2020), cert.

granted, No. 20-1034, 142 S. Ct. 638

(2021) ....................................................................20

Saada v. Golan,

930 F.3d 533 (2d Cir. 2019) .................................20

Saada v. Golan,

No. 18-CV-5292, 2019 WL 1317868

(E.D.N.Y. Mar. 22, 2019), aff’d in part,

vacated in part, remanded, 930 F.3d 533

(2d Cir. 2019) ............................................. 8, 16, 22

vi

Saada v. Golan,

No. 18-CV-5292, 2020 WL 2128867

(E.D.N.Y. May 5, 2020), aff’d, 833 F.

App’x 829 (2d Cir. 2020), cert. granted,

No. 20-1034, 142 S. Ct. 638 (2021), and

motion for relief from judgment denied,

No. 18-CV-5292, 2021 WL 1176372

(E.D.N.Y. Mar. 29, 2021), aff’d, No. 21876-CV, 2021 WL 4824129 (2d Cir. Oct.

18, 2021) ..................................................... 8, 12, 18

Simms v. Simms,

175 U.S. 162 (1899) ..............................................14

Societe Nationale Industrielle Aerospatiale

v. U.S. Dist. Ct. for S. Dist. of Iowa,

482 U.S. 522 (1987) ..............................................10

Thompson v. Thompson,

484 U.S. 174 (1988) ..............................................13

United States v. Hitachi Am., Ltd.,

20 C.I.T. 193 (1996) .............................................23

Van De Sande v. Van De Sande,

431 F.3d 567 (7th Cir. 2005)................................16

Williams v. Lambert,

46 F.3d 1275 (2d Cir. 1995) .................................15

Statutes & Other Authorities:

22 U.S.C. § 9001(b)(4) .........................................18, 19

Carol S. Bruch, The Unmet Needs of

Domestic Violence Victims and Their

Children in Hague Child Abduction

Convention Cases, 38 FAM. L.Q. 529

(2004) ....................................................................17

vii

Christopher T. Benitez, MD et al., Do

Protection Orders Protect?, 38 J. AM.

ACAD. PSYCH. LAW 376 (2010)..............................17

Dean Roscoe Pound, Proceedings in

Commemoration of the Address, 29

A.B.A. Rep. 395 (1906) .........................................11

Department of State, Report on Compliance

with the Hague Convention on the Civil

Aspects of International Child Abduction

(Apr. 2010) ...........................................................18

Fed. R. Civ. P. 44.1 ......................................................6

The Hague Convention on the Civil Aspects

of International Child Abduction, Oct.

25, 1980, T.I.A.S. No. 11670, reprinted in

51 Fed. Reg. 10,494 (Mar. 26, 1986) ........... passim

Hague Permanent Bureau, Report on the

Fifth Meeting of the Special Commission

(Mar. 2007) ...........................................................18

Henry J. Friendly, Reactions of a LawyerNewly Become Judge, 71 YALE L.J. 218

(1961) ....................................................................16

HON. JAMES D. GARBOLINO, FEDERAL

JUDICIAL CENTER, THE 1980 HAGUE

CONVENTION ON THE CIVIL ASPECTS OF

INTERNATIONAL CHILD ABDUCTION: A

GUIDE FOR JUDGES (2d ed. 2015) .........................19

Inquisitorial System, BLACK’S LAW

DICTIONARY (11th ed. 2019) .................................10

viii

JAMES G. APPLE & ROBERT R. DEYLING,

FEDERAL JUDICIAL CENTER, A PRIMER ON

THE CIVIL-LAW SYSTEM (1995) .............................11

JEFFREY L. EDLESON, PH.D., ET AL.,

MULTIPLE PERSPECTIVES ON BATTERED

MOTHERS AND THEIR CHILDREN FLEEING

TO THE UNITED STATES FOR SAFETY: A

STUDY OF HAGUE CONVENTION CASES,

FINAL REPORT (2010)............................................20

Letter from Catherine W. Brown, Assistant

Legal Adviser for Consular Affairs,

United States Dep’t of State, to Michael

Nicholls, Child Abduction Unit, Lord

Chancellor’s Dep’t, United Kingdom

(Aug. 10, 1995) .......................................................5

Merle H. Weiner, International Child

Abduction and the Escape from Domestic

Violence, 69 FORDHAM L. REV. 593 (2000) ...........23

Restatement (Third) of Foreign Relations

Law § 403 (1987) ..................................................23

Roxanne Hoegger, What if She Leaves?

Domestic Violence Cases Under the

Hague Convention and the Insufficiency

of the Undertakings Remedy, 18

BERKELEY WOMEN’S L.J. 181 (2003) ....................19

Sande L. Buhai, Access to Justice for

Unrepresented Litigants: A Comparative

Perspective, 42 LOY. L.A. L. REV. 979

(2009) ....................................................................10

Sup. Ct. R. 37.6 ...........................................................1

ix

Timothy L. Arcaro, Think Fast: Post

Judgment Considerations in Hague

Child Abduction Cases, 23 SUFFOLK J.

TRIAL & APP. ADVOC. 237 (2018) ..........................22

U.S. Courts, Chief Justice Roberts

Statement – Nomination Process .........................11

U.S. Courts, Federal Judicial Caseload

Statistics 2020 ......................................................21

x

INTERESTS OF AMICI CURIAE1

Amici are former US federal and state court

judges: the Hon. Gary E. Bair, Of Counsel at

RaquinMercer LLC, and formerly of the Maryland

Circuit Court, Montgomery County; the Hon. Mary

Ellen Barbera, formerly of the Maryland Court of

Appeals and the Maryland Special Court of Appeals;

the Hon. William G. Bassler, independent

arbitrator, and formerly of the United States District

Court for the District of New Jersey; the Hon. Mark

W. Bennett, Director of the Drake University Law

School’s Institute for Justice Reform and Innovation,

and formerly of the United States District Court for

the Northern District of Iowa; the Hon. Rubén

Castillo, mediator at FedArb, and formerly of the

United States District Court for the Northern District

of Illinois; the Hon. Jeremy Don Fogel, Executive

Director of the Berkeley Judicial Institute, and

formerly of the United States District Court for the

Northern District of California, the Superior Court of

California, County of Santa Clara, and the Santa

Clara County Municipal Court; the Hon. Helen E.

Freedman, Mediator, Arbitrator and Referee/Special

Master for Judicial Arbitration and Mediation

Services, and formerly of the New York Supreme

Court Appellate Division, First Department, the New

1 Pursuant to Rule 37.6, amici affirm that no counsel for

a party authored this brief in whole or in part, and that no person

other than amici, its members, or its counsel made a monetary

contribution intended to fund the brief’s preparation or

submission. All parties consented in writing to the filing of this

brief.

1

York Supreme Court, New York County, and the Civil

Court of the City of New York; the Hon. William

Royal Furgeson, Jr., Member of FurgesonMalouf

Law PLLC, and formerly of the United States District

Court for the Western District of Texas; the Hon.

Nancy Gertner, Senior Lecturer on Law at Harvard

Law School, and formerly of the United States

District Court for the District of Massachusetts; the

Hon. John Gleeson, Partner at Debevoise &

Plimption LLP, and formerly of the United States

District Court for the Eastern District of New York;

the Hon. Timothy K. Lewis, Counsel at Schnader

Harrison Segal & Lewis LLP, and formerly of the

United States Court of Appeals for the Third Circuit

and the United States District Court for the Western

District of Pennsylvania; the Hon. Richard J.

Holwell, Partner at Holwell Shuster & Goldberg

LLP, and formerly of the United States District Court

for the Southern District of New York; the Hon. A.

Howard Matz, Senior Counsel at Bird, Marella,

Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow,

P.C., and formerly of the United States District Court

for the Central District of California; the Hon.

Stephen M. Orlofsky, Partner at Blank Rome LLP,

and formerly of the United States District Court for

the District of New Jersey; the Hon. Ernst H.

Rosenberger, Of Counsel at Stroock & Stroock &

Lavan LLP, and formerly of the New York Supreme

Court Appellate Division, First Department and the

New York Supreme Court, New York County; the

Hon. Shira A. Scheindlin, Of Counsel at Stroock &

Stroock & Lavan LLP, and formerly of the United

States District Court for the Southern District of New

2

York; the Hon. Jacqueline W. Silbermann, Special

Counsel at Dobrish, Michaels, Gross LLP, and

formerly of the New York Supreme Court, New York

County; and the Hon. Thomas I. Vanaskie, Of

Counsel at Stevens & Lee, and formerly of the United

States Court of Appeals for the Third Circuit and the

United States District Court for the Middle District of

Pennsylvania.

Amici are concerned that the Second Circuit

mandate that trial courts consider ameliorative

measures in all Hague Convention cases in which

they make a “grave risk” finding will force courts to

engage in conduct beyond their jurisdiction and

experience and wade into the underlying merits of the

custody dispute, in contravention of the treaty, its

implementing legislation, and the basic structure of

our adversarial system. Amici are further concerned

that it will put unnecessary strain on US court

dockets and prevent expeditious resolution of Hague

Convention cases. Amici therefore submit this brief

in support of Petitioner Golan.

3

SUMMARY OF ARGUMENT

The Second Circuit mandate that trial courts

consider crafting ameliorative measures after making

a “grave risk” determination in Hague Convention2

cases involving domestic violence obligates US courts

to wade into the underlying custody determination.

Not only does this contravene the language and intent

of the Convention, it: (i) forces US judges into a role

that exceeds the bounds of their traditional

jurisdiction and interaction with foreign law;

(ii) requires US judges to perform non-judicial tasks

that they are ill-equipped to fulfill; and (iii) wastes

scarce judicial resources.

First, federal district courts are courts of

limited subject matter jurisdiction, constrained by

Article III and federal legislation. In certain limited

circumstances, they determine matters of foreign law.

But US courts never step into the role of a foreign civil

law judge by proactively investigating and resolving

the non-judicial issues surrounding foreign custody

disputes.

Second, most US courts lack familiarity and

experience with the family law issues implicated in

cases such as the one at bar. Even in domestic cases,

federal district courts lack experience with state

family law issues, due to the domestic relations

exception and abstention doctrines. US courts have

even less experience in handling family law matters

based on the law and institutions of other countries.

2 The Hague Convention on the Civil Aspects of

International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670,

reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986) [hereinafter

Hague Convention].

4

Finally,

mandatory

consideration

of

ameliorative measures prevents the expeditious

resolution of cases as contemplated by the

Convention. It also puts unnecessary strain on the

dockets of busy courts and forces judges to expend

resources on non-judicial issues surrounding the

safety of minors, including custody determinations,

that will eventually be relitigated abroad. Even if US

courts had the ability to craft ameliorative measures

in a timely and efficient manner, they most often lack

the jurisdiction to enforce the ameliorative measures

they spend so much time crafting.

For these reasons, this Court should adopt the

discretionary model, advanced by the First, Eighth,

and Eleventh Circuits, as well as the US State

Department and the United States as amicus curiae.3

Discretion would permit courts to forgo the protracted

and improper consideration of ameliorative measures

in domestic violence cases such as the one at bar. At

the same time, discretion would permit courts to craft

ameliorative measures in cases in which the

measures (i) would not require the court to wade into

the underlying custody dispute, (ii) would not force

the court into an improper investigation of non-legal

foreign institutions, and (iii) would be enforceable. In

addition, it would permit courts to act promptly and

efficiently to resolve Hague Convention cases, as

3 See Danaipour v. McLarey, 286 F.3d 1, 21 (1st Cir.

2002); Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013); Baran v.

Beaty, 526 F.3d 1340, 1349 (11th Cir. 2008); Brief for the United

States as Amicus Curiae [hereinafter U.S. Cert. Br.] at 1a–20a

(Letter from Catherine W. Brown, Assistant Legal Adviser for

Consular Affairs, United States Dep’t of State, to Michael

Nicholls, Child Abduction Unit, Lord Chancellor’s Dep’t, United

Kingdom (Aug. 10, 1995)); U.S. Cert. Br. at 8, 11–14, 18–19.

5

contemplated in the treaty. Therefore, this Court

should reject the mandatory consideration of

ameliorative measures and instead leave it to the

discretion of the trial courts.

ARGUMENT

I.

Mandating

Judicial

Analysis

of

Ameliorative Measures Forces US Courts

Beyond their Traditional Jurisdiction

and Interactions with Foreign Law

Requiring courts to consider and impose

ameliorative measures in cases such as this one forces

courts to delve into the merits of the underlying

custody dispute,4 and thereby obligates them to make

judgments regarding the effectiveness of foreign

social and legal institutions. This represents a

significant deviation from the ordinary interactions

with foreign law by US courts.

Federal courts have the power to utilize “any

relevant material or source” to resolve “question[s] of

law” related to the application of foreign law.5 Courts

may “undertake [their] own research” in learning and

applying such law6 and may reject interpretations of

foreign law provided by the foreign government

itself.7 Recently, district courts have analyzed and

4 See Brief for the Petitioner [hereinafter Pet. Br.] at 38–

40; U.S. Cert. Br. at 16a.

5 Fed. R. Civ. P. 44.1.

6 Compania Sud Americana De Vapores, S.A. v. I.T.O.

Corp. of Baltimore, 940 F. Supp. 855, 861 (D. Md. 1996).

7 Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co.,

138 S. Ct. 1865, 1868 (2018) (“[A] federal court is neither bound

to adopt the foreign government’s characterization [of its own

law] nor required to ignore other relevant materials.”).

6

applied a diverse array of foreign laws, including

Indian contract law,8 the premises liability law of St.

Kitts and Nevis,9 the negligence standards of

Colombia,10 and the damage mitigation law of the

Netherlands.11 Deciding questions of foreign law also

parallels the process district courts undertake in

reaching conclusions of domestic law, including

considering briefs from the parties, the opinions of

experts, and legal treatises. There can thus be no

question that US federal judges have the training,

expertise, and experience to resolve questions of

foreign law.

But interpreting foreign law is plainly a far

different task than the research and crafting of nonlegal ameliorative measures in Hague Convention

cases, which often involve complex assessments of the

foreign social and healthcare institutions involved in

the protection of the child. Interpreting foreign law is

also categorically different than mastering the

intricate practical operations of foreign legal systems.

As the trial court’s extensive actions in this

case show, in order to ensure that ameliorative

measures are adequate in a case involving domestic

abuse, a court must first become intimately familiar

with the operative facts in relation to a range of

diverse topics in the foreign jurisdiction. These topics

8 See M.A. Mobile Ltd. v. Indian Inst. of Tech.

Kharagpur, 400 F. Supp. 3d 867 (N.D. Cal. 2019).

9 See Clarke v. Marriott Int’l, Inc., 403 F. Supp. 3d 474

(D.V.I. 2019).

10 See Mayaguez S.A. v. Citigroup, Inc., No. 16-CV-6788,

2021 WL 1799653 (S.D.N.Y. Apr. 30, 2021).

11 See Euroboor B.V. v. Grafova, No. 2:17-CV-02157,

2021 WL 4325694 (N.D. Ala. Sept. 23, 2021), reconsideration

denied, No. 2:17-CV-2157, 2021 WL 5085952 (N.D. Ala. Nov. 2,

2021).

7

can include: (i) protective orders, (ii) criminal

proceedings, (iii) immigration, (iv) social service

investigations, (v) behavioral and psychoeducational

therapy, (vi) parenting classes, and (vii) special

education needs—just to name those directly

implicated by the measures ordered here.12 Affirming

the Second Circuit’s mandate would force courts to

engage in a similar inquiry every time they found a

“grave risk” to the child13 in cases involving domestic

abuse.

US judges are rarely, if ever, asked to perform

independent investigations of domestic non-legal

institutions. Judges are not domestic social workers,

mental health professionals, therapists, special

education specialists, or law enforcement officers. A

fortiori, they should not be asked to take on such roles

or become experts with respect to such institutions in

foreign jurisdictions.

See Saada v. Golan, No. 18-CV-5292, 2019 WL

1317868, at *20 (E.D.N.Y. Mar. 22, 2019), aff’d in part, vacated

in part, remanded, 930 F.3d 533 (2d Cir. 2019) [hereinafter

Saada I] (outlining initial ameliorative measures); Saada v.

Golan, No. 18-CV-5292, 2020 WL 2128867, at *2–6 (E.D.N.Y.

May 5, 2020), aff’d, 833 F. App’x 829 (2d Cir. 2020), cert. granted,

No. 20-1034, 142 S. Ct. 638 (2021), and motion for relief from

judgment denied, No. 18-CV-5292, 2021 WL 1176372 (E.D.N.Y.

Mar. 29, 2021), aff’d, No. 21-876-CV, 2021 WL 4824129 (2d Cir.

Oct. 18, 2021) [hereinafter Saada II] (outlining updated

ameliorative measures).

13 See Hague Convention art. 13 (“Notwithstanding the

provisions of the preceding Article, the judicial or administrative

authority of the requested State is not bound to order the return

of the child if the person, institution or other body which opposes

its return establishes that – . . . (b) there is a grave risk that his

or her return would expose the child to physical or psychological

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

12

8

However, not all cases necessarily present the

issues raised in this case and others involving

domestic abuse. There may instead be other factors,

unrelated to the custody dispute, that would create a

“grave risk” of exposure to harm for the child. Indeed,

courts frequently state that it would place a child in

grave risk of exposure to harm within the meaning of

the Hague Convention if they were to be returned “to

a zone of war, famine, or disease.”14 In such cases, a

court might be able to mitigate the risk of harm to the

child by crafting ameliorative measures that would

neither intrude into the custody determination nor

require courts to engage in extensive consideration of

foreign social and legal institutions.

Petitioner provides an example of such a

hypothetical case in which the child’s “country of

habitual residence is facing an outbreak of a

contagious disease but preventative medications are

available in the United States.”15 In such a case,

Petitioner argues, “the court could issue an order

conditioning the child’s return on receipt of the

medications.”16 This would neither require the court

to wade into the underlying custody dispute nor

obligate it to investigate the various social,

healthcare, and legal institutions of the foreign

jurisdiction.

Adoption of the discretionary model would thus

allow US courts the option to decline crafting

ameliorative measures in certain cases they deem to

be inappropriate, such as the one at bar. Instead,

courts could craft appropriate ameliorative measures

14 Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir.

1996); Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).

15 Pet. Br. at 38.

16 Ibid.

9

only where they deem it possible to do so while

maintaining their traditional role of interpreting and

applying foreign law, rather than engaging in timeconsuming and perhaps fruitless interactions with

foreign legal and non-legal institutions.

a. Civil

Law

Judges

Perform

Investigatory Functions; Common

Law Judges Do Not

In considering the limited role of the US judge

within the common law adversarial system, it is

instructive to contrast that role with the more

expansive and inquisitorial function that civil law

judges perform. Under various civil law systems,

judges assume the primary responsibility for

investigating the underlying facts and developing the

record following the commencement of the action.17

Civil law judges may perform tasks including

(i) calling and examining witnesses; (ii) appointing

experts; (iii) interrogating suspects; (iv) ordering

further investigations; and (v) preparing written

summaries of the evidence.18 This stands in sharp

17 See Inquisitorial System, BLACK’S LAW DICTIONARY

(11th ed. 2019) (“A system of proof-taking used in civil law,

whereby the judge conducts the trial, determines what questions

to ask, and defines the scope and the extent of the inquiry. This

system prevails in most of continental Europe, in Japan, and in

Central and South America.”).

18 See Societe Nationale Industrielle Aerospatiale v. U.S.

Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 560 (1987) (Blackmun,

J., concurring in part) (“The civil-law system is inquisitional

rather than adversarial and the judge normally questions the

witness and prepares a written summary of the evidence.”);

Sande L. Buhai, Access to Justice for Unrepresented Litigants: A

Comparative Perspective, 42 LOY. L.A. L. REV. 979, 1015 (2009)

10

contrast with the US adversarial system in which it

is the role of parties and their counsel to uncover and

present the facts. US judges serve only as neutral

arbiters or “umpires.”19

Mandating that US judges (i) determine

whether ameliorative measures are sufficient to

overcome grave risk concerns, and (ii) if they so

(explaining that in civil law systems: “After a case is filed, the

judge examines any documents the parties have submitted,

requests further evidence, and undertakes investigatory

hearings. If an issue requires expertise, it is the judge that hires

the experts.”); JAMES G. APPLE & ROBERT R. DEYLING, FEDERAL

JUDICIAL CENTER, A PRIMER ON THE CIVIL-LAW SYSTEM 27–28

(1995) (explaining that in civil law systems, with respect to civil

cases, “[t]he judge supervises the collection of evidence and

preparation of a summary of the record on which a decision will

be based”; and that with respect to criminal cases “[t]he

examining judge plays an active role in the collection of evidence

and interrogation of witnesses”).

19

See Dean Roscoe Pound, Proceedings in

Commemoration of the Address, 29 A.B.A. Rep. 395 (1906),

reprinted in 35 F.R.D. 241, 273–91, 281 (1964) (“The sporting

theory of justice, the ‘instinct of giving the game fair play,’ as

Professor Wigmore has put it, is so rooted in the profession in

America that most of us take it for a fundamental legal tenet. . . .

[I]n America we take it as a matter of course that a judge should

be a mere umpire, to pass upon objections and hold counsel to

the rules of the game, and that the parties should fight out their

own game in their own way without judicial interference. We

resent such interference as unfair, even when in the interest of

justice.”); U.S. Courts, Chief Justice Roberts Statement –

Nomination Process <https://www.uscourts.gov/educationalresources/educational-activities/chief-justice-roberts-statementnomination-process> (“Judges and Justices are servants of the

law, not the other way around. Judges are like umpires.

Umpires don’t make the rules, they apply them. The role of an

umpire and a judge is critical. They make sure everybody plays

by the rules, but it is a limited role. Nobody ever went to a ball

game to see the umpire.”).

11

determine, to craft such measures, erodes their

neutral arbitral role and forces them to perform

quasi-investigatory functions which are at odds with

our adversarial system. For example, on remand, and

in compliance with the Second Circuit’s mandate, the

district court in this case conducted a nine-month

“extensive examination of measures available to

ensure B.A.S.’s safe return to Italy.”20 This

examination—led primarily by Judge Donnelly as

opposed

to

the

parties—included

direct

correspondence between Judge Donnelly and “the

Italian Central Authority and the Italian Ministry of

Justice on matters concerning B.A.S., the petitioner

and the respondent.”21 This independent, proactive

role minimizes the guidance of the parties and is more

akin to that of a civil law judge.

This is not the role envisioned for judges in our

adversarial system of law. Thus, the Second Circuit’s

mandate that trial courts examine the legal and

factual circumstances in foreign jurisdictions in order

to craft ameliorative measures in all cases can force

US judges into an improper investigatory role that

bleeds into the merits of the custody dispute. And

even were the investigation into foreign social and

legal institutions to be primarily led by the parties, it

would still cause the court to extend its role beyond

the usual boundaries with respect to foreign law.

Moreover, extensive ameliorative measures can raise

international comity concerns.22

20 Saada II, 2020 WL 2128867, at *1.

21 Ibid.

22 See Danaipour v. McLarey, 286 F.3d 1, 23–25 (1st Cir.

2002) (“Conditioning a return order on a foreign court’s entry of

an order, as the district court did here, raises serious comity

12

II.

Federal District Courts Have Limited

Family Law Experience

As courts of limited subject matter jurisdiction,

federal district courts may only adjudicate cases or

controversies authorized by both Article III and a

federal jurisdictional statute.23 Accordingly, federal

courts are relatively unfamiliar with certain areas of

the law which have historically been viewed as the

province of the states; family law is one such area.24

In addition to these constitutional and statutory

limitations, federal courts are further constrained in

their experience with family law by common law

abstention doctrines, which exist to reinforce this

allocation of jurisdiction.

This Court has long recognized that “[t]he

whole subject of the domestic relations of husband

and wife, parent and child, belongs to the laws of the

concerns. The Department of State has stated that it ‘does not

support conditioning the issuance of a return order on the

acquisition of [an] order from a court in the requesting state,’

presumably because such a practice would smack of coercion of

the foreign court. . . . In sum, the district court offended notions

of international comity under the Convention by issuing orders

with the expectation that the Swedish courts would simply copy

and enforce them.”).

23 Exxon Mobil Corp. v. Allapattah Services, Inc., 545

U.S. 546, 552 (2005).

24 See Mansell v. Mansell, 490 U.S. 581, 587 (1989)

(“[D]omestic relations are preeminently matters of state law.”);

Moore v. Sims, 442 U.S. 415, 435 (1979) (“Family relations are a

traditional area of state concern.”); Thompson v. Thompson, 484

U.S. 174, 185 (1988) (“[F]ederal enforcement of state custody

decrees would . . . entangle the federal judiciary in domestic

relations disputes with which they have little experience and

which traditionally have been the province of the States.”).

13

states and not to the laws of the United States.”25 So

strong is the Court’s deference to state law in this

area that it has formally recognized a “domestic

relations exception” to federal subject matter

jurisdiction.26

The Supreme Court first articulated the

domestic relations exception in 1858 in Barber v.

Barber, a diversity suit brought by a wife to enforce a

New York state court alimony award against her

husband who had moved to Wisconsin in an attempt

to escape the jurisdiction of the New York court.27 In

dicta, the Court noted, “[w]e disclaim altogether any

jurisdiction in the courts of the United States upon

the subject of divorce, or for the allowance of

alimony.”28

Over the next century, the Court

addressed the reach of the exception in a variety of

circumstances.29 Then, in 1992, in Ankenbrandt v.

Richards, this Court contracted the scope of the

25 Ex parte Burrus, 136 U.S. 586, 593–594 (1890).

26 Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992).

27

Barber v. Barber, 62 U.S. (21 How.) 582, 583–84

(1858).

28 Id. at 584. The Court specifically noted at the outset

that “this is not a suit asking the court for the allowance of

alimony.

That has been done by a court of competent

jurisdiction. The [district] court in Wisconsin was asked to

interfere to prevent that decree from being defeated by fraud.”

Ibid.

29 See, e.g., Burrus, 136 U.S. at 591 (noting that child

custody cases generally do not fall within the jurisdiction of

federal courts); Simms v. Simms, 175 U.S. 162, 167–68 (1899)

(holding that the state law domestic relations considerations

raised in Burrus had “no application to the jurisdiction of the

courts of a territory, or to the appellate jurisdiction of this court

over those courts”); Ohio ex rel. Popovici v. Agler, 280 U.S. 379,

383 (1930) (holding that federal jurisdiction did not extend to

disputes over “divorces and alimony”).

14

exception, concluding that it “divests the federal

courts of power to issue divorce, alimony, and child

custody decrees” in cases before the court on diversity

jurisdiction.30 However, the Court did not discuss the

exception’s application to federal questions.31 As

such, lower courts remain split on the exact reach of

the exception.32

While the outer bounds of the domestic

relations exception remain unsettled, even in

circumstances in which the exception may not apply,

the domestic relations abstention principle often acts

to limit federal courts’ involvement in matters of

family law.33 This principle, like other abstention

doctrines, allows district courts to refuse to hear a

case if doing so would improperly intrude on the

powers of another court.34 The combination of limited

subject matter jurisdiction, along with these

doctrines, has thus limited the experience of federal

courts with matters of family law, and more

specifically, with custody decrees.35 For Hague

Convention cases that involve domestic violence, this

30 Ankenbrandt, 504 U.S. at 703–04.

31 Id. at 693–704.

32 Compare Williams v. Lambert, 46 F.3d 1275, 1284 (2d

Cir. 1995) (holding that the exception does not apply to cases

“before this Court on federal question jurisdiction”), with

Kowalski v. Boliker, 893 F.3d 987, 995 (7th Cir. 2018) (holding

that “the domestic-relations exception . . . appl[ies] to both

federal-question and diversity suits”).

33 See Deem v. DiMella-Deem, 941 F.3d 618, 621–25 (2d

Cir. 2019).

34 See American Airlines, Inc. v. Block, 905 F.2d 12, 14

(2d Cir. 1990) (“[E]ven if subject matter jurisdiction lies over a

particular matrimonial action, federal courts may properly

abstain from adjudicating such actions in view of the greater

interest and expertise of state courts in this field.”).

35 Ankenbrandt, 504 U.S. at 703.

15

lack of experience can jeopardize the child’s wellbeing.

When evaluating ameliorative measures, a

court must “satisfy itself that the child[] will in fact,

and not just in legal theory, be protected” if returned

to their home country.36 But district courts “do not

have staffs of social workers, and there is too little

commonality between family law adjudication and

the normal responsibilities of federal judges to give

them the experience they would need to be able to

resolve domestic disputes with skill and sensitivity.”37

Given the Convention’s focus on protecting children,38

and the custody concerns inherent in cases of

domestic violence, this lack of experience could cause

significant problems.39

As this case illustrates, courts may be forced to

evaluate the effectiveness of behavioral therapies and

other such protections as part of the ameliorative

measures analysis.40 Unfortunately, as research

36 Van De Sande v. Van De Sande, 431 F.3d 567, 571 (7th

Cir. 2005).

37 Lloyd v. Loeffler, 694 F.2d 489, 492 (7th Cir. 1982);

accord Danaipour v. McLarey, 286 F.3d 1, 21 (1st Cir. 2002)

(courts must “recognize the limits” of their abilities in Hague

Convention cases).

38 The preamble to the Convention states that “the

interests of children are of paramount importance in matters

relating to their custody.”

Hague Convention Preamble.

Furthermore, the existence of Article 13’s grave risk exception

indicates a desire to protect the child’s safety.

Hague

Convention art. 13(b).

39 See Henry J. Friendly, Reactions of a Lawyer-Newly

Become Judge, 71 YALE L.J. 218, 223–24 (1961) (discussing how

a lack of judicial expertise may cause problems when judges are

confronted with “a question for which accepted judicial

techniques afford no satisfactory answer”).

40 See Saada I, 2019 WL 1317868, at *19.

16

indicates, domestic abusers often have little regard

for such protections, violating them nearly as often as

not.41 As a result, even within the field of child

welfare itself, there are questions as to the efficacy of

such measures.42 To affirm the Second Circuit's

mandate would force courts to delve into unsettled

psycho-behavioral issues, among many others, a task

they are simply not qualified to perform.

III.

Mandatory Consideration of Ameliorative

Measures Protracts Hague Convention

Cases and Saps Judicial Resources

a. Crafting Ameliorative Measures

Prevents Courts from Resolving

Hague Convention Cases in an

Expedited Manner, As Required by

the Convention

The Hague Convention’s text elucidates

several animating principles, paramount of which is

the well-being of the child.43 Where there is no “grave

risk” to the child, the Convention urges the prompt

return of the child to her home country.44 It is for that

reason that Hague Convention cases are intended to

41 See Pet. Br. at 41–42; see also Christopher T. Benitez,

MD et al., Do Protection Orders Protect?, 38 J. AM. ACAD. PSYCH.

LAW 376, 384 (2010) (discussing the mean rate of 40% violation

of protective orders found throughout a series of published

studies).

42 See Carol S. Bruch, The Unmet Needs of Domestic

Violence Victims and Their Children in Hague Child Abduction

Convention Cases, 38 FAM. L.Q. 529, 542–43 (2004).

43 Hague Convention Preamble.

44 Ibid.; id. art. 1.

17

proceed on “expedit[ed]” timelines45 and are primarily

designed to determine solely which jurisdiction

should serve as the forum for resolving the custody

dispute.46 Mandating that courts undertake an

ameliorative measures analysis in all cases

contravenes these stated policy goals.

Crafting ameliorative measures is often an

extremely time-consuming process. As discussed

above, the courts’ lack of experience in crafting

custody decrees means that judges must conduct

“extensive

examination[s],”

liaising

with

international authorities to determine the adequacy

and enforceability of the measures imposed.47 This

Hague Convention art. 2 (“Contracting States shall

take all appropriate measures to secure within their territories

the implementation of the objects of the Convention. For this

purpose they shall use the most expeditious procedures

available.”)

Id. art. 11 (“The judicial or administrative

authorities of Contracting States shall act expeditiously in

proceedings for the return of children. . . .”); see also Chafin v.

Chafin, 568 U.S. 165, 179 (2013) (“[W]hether at the district or

appellate court level, courts can and should take steps to decide

these cases as expeditiously as possible . . . .”).

46 See Department of State, Report on Compliance with

the Hague Convention on the Civil Aspects of International Child

Abduction

36–37

(Apr.

2010)

<tinyurl.com/2010haguecompliance>;

Hague

Permanent

Bureau, Report on the Fifth Meeting of the Special Commission

56 (Mar. 2007) (“The Permanent Bureau stated that suggestions

had been made to limit the use of undertakings to . . . respect the

jurisdictional nature of the Convention by not intruding on

custody issues to be determined by the court of the habitual

residence.”) <tinyurl.com/hcchfifthmeeting>. Courts are also

expressly instructed not to determine the underlying “merits” of

the custody dispute. See Hague Convention arts. 16, 19; 22

U.S.C. § 9001(b)(4).

47 Saada II, 2020 WL 2128867, at *1–4.

45

18

process is “time-consuming and complicated,” and can

“slow down proceedings.”48

The Hague Convention sets out a baseline

expectation for a return decision to be made within six

weeks following the commencement of the

proceeding.49 However, when courts are mandated to

first consider and craft ameliorative measures, and

thereby wade into the merits of the custody case,

resolution of the forum issue becomes protracted and

the benefits of an expedited process are lost.50

This case is a prime example of how the issue

of ameliorative measures can turn an expedited

preliminary determination on proper forum into a

years-long de facto adjudication of the merits—in

direct contravention of the mandates of the

Convention and its implementing legislation.51 This

Roxanne Hoegger, What if She Leaves? Domestic

Violence Cases Under the Hague Convention and the

Insufficiency of the Undertakings Remedy, 18 BERKELEY

WOMEN’S L.J. 181, 201 (2003).

49 Hague Convention art. 11; Monasky v. Taglieri, 140 S.

Ct. 719, 724 (2020) (noting the “normal” six week timeframe

outlined in the Convention); see also HON. JAMES D. GARBOLINO,

FEDERAL JUDICIAL CENTER, THE 1980 HAGUE CONVENTION ON

THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION: A

GUIDE FOR JUDGES 161–65 (2d ed. 2015) (discussing use of

expedited discovery, briefing, and appeals in US Hague

Convention

cases)

<https://findmyparent.org/wpcontent/uploads/2021/08/Hague-Convention-Guide.pdf>.

50 See Pet. Br. at 35–38, 43–44.

51 See Hague Convention art. 16 (“[T]the judicial or

administrative authorities of the Contracting State to which the

child has been removed or in which it has been retained shall not

decide on the merits of rights of custody until it has been

determined that the child is not to be returned under this

Convention . . . .”); 22 U.S.C. § 9001(b)(4) (barring US courts from

engaging with the “merits of any underlying child custody

claims”).

48

19

case was first filed in the district court on September

20, 2018.52 After a nine-day bench trial in January,

2019, the district court issued its first Memorandum

and Order on March 22, 2019.53 Thereafter, due to

the Second Circuit’s mandate, the parties spent the

next three years litigating the sole issue of

ameliorative measures, appearing twice before the

Second Circuit54 and now before this Court. No doubt

this time would have been better spent from the

perspective of the parties, B.A.S., and the US and

Italian courts resolving the underlying custody

dispute in the proper forum.

Accordingly, the Second Circuit’s mandate that

courts consider ameliorative measures in all cases

frustrates the expeditious resolution of the forum

issue which lies at the heart of the jurisdiction of US

courts adjudicating Hague Convention cases.55

52 See Joint Appendix at 8.

53 Saada I, 2019 WL 1317868.

54 See Saada v. Golan, 930 F.3d 533 (2d Cir. 2019)

(remanding to district court for further consideration of

ameliorative measures); Saada v. Golan, 833 F. App’x 829 (2d

Cir. 2020), cert. granted, No. 20-1034, 142 S. Ct. 638 (2021)

(summary order affirming return of B.A.S. based on district

court’s revised ameliorative measures).

55 This is not the only Hague Convention case in which

resolution has taken multiple years. See JEFFREY L. EDLESON,

PH.D., ET AL., MULTIPLE PERSPECTIVES ON BATTERED MOTHERS

AND THEIR CHILDREN FLEEING TO THE UNITED STATES FOR

SAFETY: A STUDY OF HAGUE CONVENTION CASES, FINAL REPORT

163–65 (2010).

20

b. The Second Circuit’s Mandate Would

Further

Strain

Court

Dockets,

Delaying Resolution of Other Cases in

Favor of Crafting Unenforceable

Orders

The significant growth in the number of cases

handled by the federal judiciary reveals that if the

Second Circuit’s mandate is adopted, it may well

contribute to a delay in the resolution of other cases.

In 2020, combined filings in US district courts

in civil cases and by criminal defendants increased by

thirteen percent, while terminations held steady.56

This continues a multi-year increase in case filings in

federal district courts, which have increased by over

twenty-one percent since 2016.57 The declining

overall termination-to-filing rate demonstrates that

new case filings may be delaying the resolution of

older matters.

Requiring courts to always conduct an

ameliorative measures analysis after making a

finding of grave risk of harm would compound this

issue. Courts are instructed to prioritize cases under

the Convention, and often move those cases to the

front of their dockets.58 Thus, if the court makes a

56 U.S. Courts, Federal Judicial Caseload Statistics 2020

<https://www.uscourts.gov/statistics-reports/federal-judicialcaseload-statistics-2020>.

57 Id.

58 See, e.g., Holder v. Holder, 392 F.3d 1009, 1023 (9th

Cir. 2004) (“[W]e urge courts to give docket priority to

Convention petitions and to seek means of expediting the

petitions to the extent possible and practicable.”); March v.

Levine, 249 F.3d 462, 474 (6th Cir. 2001) (holding that courts are

to “fast track” cases brought under the Hague Convention and

use “the most expeditious procedures available”) (internal

21

finding of “grave risk,” and then must spend time

investigating and coordinating protective measures,

it will detract from the time available to the court to

address other cases.

For example, as noted above, in this matter the

district court spent nine months crafting its

protective

measures,

engaged

in

multiple

conversations with Italian officials, and conducted

several case management conferences with the

litigants.59 This underscores the time and burden

involved in coordinating basic protections with

foreign judicial and social institutions. With case

filings continuing to increase, it stands to reason that

adding a time-consuming mandate would only serve

to further impede the resolution of other cases and

affect the ability of the judges to manage their own

dockets.

Such a delay might be worthwhile if it would

guarantee the safety of the child. But even intricately

crafted protective measures may fail once the child

leaves the United States, for the simple reason that

courts often cannot enforce their orders in other

citations omitted); Onrust v. Larson, No. 15-CV-122, 2015 WL

6971472, at *1 (S.D.N.Y. Nov. 10, 2015) (shifting docket priority

to Hague Convention case to expedite it “[o]ut of respect for the

priority that the Convention places on prompt resolution of

claims of abduction”); Journe v. Journe, 911 F. Supp. 43, 44

(D.P.R. 1995) (setting a merits hearing for a Hague petition filed

in June for August of the same year to facilitate “expeditious

resolution of the proceedings”); Timothy L. Arcaro, Think Fast:

Post Judgment Considerations in Hague Child Abduction Cases,

23 SUFFOLK J. TRIAL & APP. ADVOC. 237, 243 (2018) (“Abduction

cases filed under the Convention are generally given priority on

court dockets by administrative order in compliance with the

dictates of [the Convention’s domestic implementing legislation]

and the Convention goals.”).

59 Saada I, 2019 WL 1317868, at *1.

22

jurisdictions.60 The Hague Convention does not

require that ratifying countries afford each other’s

domestic judiciaries “full faith and credit,” nor does it

mandate that one country implement the judicially

crafted measures for protection of a child once that

child returns to his or her habitual residence. As the

Eleventh Circuit explained, courts that “enter

conditional return orders . . . retain no power to

enforce those orders across national borders.”61

Affirming the Second Circuit’s mandatory

approach, therefore, would (i) prevent the expeditious

resolution of Hague Convention cases, (ii) detract

from the federal judiciary’s ability to manage their

own dockets, and (iii) delay resolution of other cases—

all without any assurance that the ameliorative

measures would be enforceable abroad.

CONCLUSION

The Second Circuit’s mandate that courts

finding a “grave risk of harm” to children in Hague

Convention cases then consider crafting extensive

60 See Pet Br. at 17–18, 31–33.

61 Baran v. Beaty, 526 F.3d 1340, 1350 (11th Cir. 2008);

see also Merle H. Weiner, International Child Abduction and the

Escape from Domestic Violence, 69 FORDHAM L. REV. 593, 678

(2000) (“[T]here is currently no remedy for the violation of an

undertaking. Contrary statements by some courts are simply

wrong.”); cf. Restatement (Third) of Foreign Relations Law § 403

(1987) (“Even when one of the bases for jurisdiction under § 402

is present, a state may not exercise jurisdiction to prescribe law

with respect to a person or activity having connections with

another state when the exercise of such jurisdiction is

unreasonable.”); United States v. Hitachi Am., Ltd., 20 C.I.T. 193

(1996) (noting that there is no power to subpoena or compel

actions of foreign nationals living abroad).

23

ameliorative measures in all cases forces US judges to

take actions beyond their traditional role. It requires

them to move beyond serving as neutral umpires

resolving issues of foreign law, into an investigatory

role of uncovering facts relating to a myriad of legal

and non-legal institutions in foreign jurisdictions. In

cases involving domestic abuse such as the one at bar,

the mandate further obliges trial courts to engage in

custody and other family law issues that they are illequipped to resolve.

Finally, mandatory

consideration of extensive ameliorative measures in

such cases thwarts the Convention’s purpose in

resolving the threshold issue of identifying the proper

forum in an expeditious manner, and instead forces

courts to engage in a lengthy analysis of the

underlying custody dispute in order to craft measures

they will ultimately be unable to enforce.

In contrast, the discretionary approach

adopted by the First, Eighth, and Eleventh Circuits,

and advanced by the State Department and the

United States as amicus curiae, is preferable. Under

such an approach, in cases involving domestic abuse,

courts would be given the discretion to recognize that

crafting ameliorative measures would necessarily

entangle them in the custody merits dispute which

they are ill-suited to handle. It would also relieve

them of the obligation to undertake a time-consuming

investigation of various foreign social and legal

institutions that goes well beyond the limited role of

determining foreign law. Avoiding this process in

such cases would also preserve precious judicial

resources and allow for the requisite expeditious

resolution of Hague Convention cases.

We acknowledge that there are unique

circumstances in which ameliorative measures would

24

not transgress these boundaries, such as in cases of

war, famine, or disease, as outlined above. However,

leaving resolution of these unique circumstances to

the discretion of the trial courts in the first instance is

the more prudent approach, and the one that this

Court should adopt.

Respectfully submitted,

Hon. Shira A. Scheindlin

Counsel of Record

Eric S. Aronson

Kerry T. Cooperman

Lee C. Rarrick

Ryan S. Nelson

STROOCK & STROOCK &

LAVAN LLP

180 Maiden Lane

New York, NY 10038

(212) 806-5400

sscheindlin@stroock.com

January 26, 2022

25