Golan deserves an answer

By Andrew Zashin*

Narkis Golan, a U.S. citizen, won a historic 9-0 victory in her international child custody case, Golan v. Saada, before the U.S. Supreme Court on June 15. Golan’s case was the fifth 1980 Hague Convention on the Civil Aspects of International Child Abduction case ever heard. On Oct. 19, Golan was found dead in her apartment. The tragic end to her life and custody case was, at once both shocking and foreseeable.

Golan’s death devastates her family and horribly, her bereft child. Her death also raises two pertinent and interconnected questions:

  • Why has the United States added an additional legal hurdle to the 1980 Hague Convention on Child Abduction?
  • How much do citizens know about the qualifications of judges whose decisions effect their lives?

There were systemic problems and inequalities at work in Golan’s case that shine a light on the courts writ large.

First, by way of background, 1980 Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that establishes proceedings for the return of children removed from their home country. At present, there are a little over 100 signatory countries to the convention. Within the actual text of the convention, some terms are clear, and some are undefined. Still other terms and doctrines have been created by courts interpreting the convention.

In the United States, one such doctrine is “ameliorative measures.” This court-created principal allows for the return of a child to his or her habitual residence even in cases where grave risk of harm is established. In other words, even if a fleeing party has proven by clear and convincing evidence that the child would be exposed to extreme physical and/or psychological harm if returned, the court has the discretion to implement ameliorative measures in an effort to reduce the harm that the child will be exposed to upon return. Thus, in America, court-made ameliorative measures may “eat the rule” of grave risk of harm, which are literally written into international treaty’s text, approved by all co-signing nations, if a court believes it can fashion ameliorative measures to increase the safety of the child and parent upon return to their habitual residence.

The primary problem with this concept is the court in the jurisdiction to which a child is returned from the American court is not prevented from ignoring or changing the ameliorative measures upon return.

In Golan’s case, shortly before her death, in a recorded telephone call available on YouTube, her husband threatened that once her son was returned, he would move past the ameliorative measures in a month.

Simply put, the ameliorative measures doctrine is dangerous. Michael Scharf, professor of international law and dean of the school of law at Case Western Reserve University in Cleveland, has said of ameliorative measures and of this case specifically, “The story is that if the court finds there is a grave risk of harm for the child, the court should not send the child back, full stop.” I suggest that Golan’s case is illustrative of not heeding that common sense approach.

When Congress enabled the convention in the United States, it used different standards than other countries. The Supreme Court’s handling of this case is problematic because while other signatory countries use the same evidentiary standard, or burden of proof, for the elements of these cases (habitual residence and grave risk of harm), the Supreme Court uses an increased burden of proof for both determinations. Once the standard civil burden, preponderance of the evidence, of determining habitual residence was met by the child’s father, Golan then had to meet the highest civil standard of proof, that of clear and convincing evidence, to establish the grave risk of harm exception to return, if she and her son were to avoid being returned to Italy.

Golan surmounted the challenge of proving grave risk of harm which, under the express terms of the treaty, should have blocked her return to Italy and resolved the Hague Petition completely, allowing her and her son to stay in America. But that did not happen. In the 2nd Circuit, Golan was forced to meet yet another court-imposed standard, proving somehow, that ameliorative measures would not protect her and her son. This undefined, necessarily-higher-than “clear and convincing” standard, to avoid return under the ameliorative measures concept, was imposed by the district court judge, as directed by the 2nd Circuit.

Following her 9-0 victory at the Supreme Court, Golan’s case was remanded back to the district court and she was again ordered by the same judge, from which Golan appealed in the first place, to return to Italy under the same terms, to the same husband, who denied her a Jewish religious divorce, who beat her and humiliated her routinely, and who apparently sexually abused her regularly. How did this happen? Why was all of this not foreseeable? How did the Supreme Court not understand the innate illogic of ameliorative measures in the first place? How did the Supreme Court fail to understand the legal shortcomings of their collective logic?

In contrast to many other countries where abduction cases are heard by designated Hague Courts and specialized judges, in the United States, most federal judges who hear cases like Golan’s have limited, or no experience at all, with the convention, or family law. These federal judges are nominated by the president and confirmed in the Senate.

Unelected judges may have no practical experience working with domestic relations clients or even having practiced law at all. Yet, these same people are the ones who decide the most intimate details of people’s lives, children’s custody, and everything that comes up in scope of human endeavors. How do the people hearing the cases understand the nuances of what is going on if they have had no practical experience with the subject matter themselves? These questions are relevant to those we elect to state judgeships, and to those state judges appoint, too.

I have been teaching family law for 20 years. Routinely, I tell my students that politically active citizens spend too much time focusing on national politics. Yet, the government touches most people’s lives through its judges. We need to ask ourselves, what real world legal and practical experience do judicial candidates have with children, finance, or even the basic practice of law?

For the sake of our families and society generally, let us ask, do we have qualified judges and judicial officers making rulings for the most vulnerable in our society?

Golan deserves an answer.

This article originally appeared as a column for the Cleveland Jewish News.

Depp-Heard trial about divorce, defamation, denial

By Andrew Zashin*

The Johnny Depp-Amber Heard trial has left me exhausted. The sordid details of the once power-couple’s relationship have been invading my phone and television for months on end. Much of this feeling can undoubtedly be attributed to the constant media attention throughout the duration of the proceedings, as well as the sudden influx of endless thought-pieces upon its conclusion.

For those unaware, actors Depp and Heard have spent approximately six weeks detailing the inner workings, or the lack thereof, of their relationship in both actual court, and the court of public opinion. For weeks, I have watched as both parties lob allegations of abuse (read: physical, mental, substance) back and forth in an effort to prove or disprove that the other had engaged in defamation. In the end, Depp prevailed.

Unsurprisingly, commentary surrounding the trial fell into two main camps: 1) the abuser has prevailed, ushering in the downfall of the #MeToo movement or 2) the trial destigmatized the notion that men can be victims of domestic abuse in relationships.

For example, EJ Dickson, of Rolling Stone, authored the piece, “‘Men Always Win’: Survivors ‘Sickened’ by the Amber Heard Verdict,” in which she states that the verdict indicates that (abused) women who come forward against powerful men may not only not be believed, but actively punished and that the verdict will have a chilling effect on female victims of domestic violence coming forward.

In contrast, Kurtis Condra wrote for the website YourTango, that Depp declaring himself a victim of domestic violence at trial helped to dispel the falsehoods that men have the ability to overpower women and “easily escape abusive situations,” and therefore, cannot be victims of domestic abuse. The piece further argued that Depp gave a voice to many male victims of domestic violence who, “suffer in silence.”

Despite the fact that the legal issue before the jury was whether one or both parties defamed the other, the Depp-Heard trial highlighted to me the complexity and anguish often inherently tethered to domestic violence civil litigation. Divorce, and the legal proceedings that surround it such as domestic violence protection order proceedings, are seldom joyous occasions that conclude swiftly; unsurprisingly, divorcing couples often struggle with working toward an amicable end.

Even after the parties are divorced, it is not uncommon for the wounds of the past to bleed into future legal proceedings. These future legal proceedings sometimes involve claims of defamation but more commonly are actions involving the modification of financial support or parenting time; aka post-decree matters. Many of my clients believe that post-decree litigation will heal the emotional wounds created during the marriage and/or divorce. Sadly, I find the opposite to be true with post-decree litigation not only deepening old wounds but typically effectuating new ones.

With Depp-Heard, you have two parties who have independently garnered both wealth and fame. Further, the two separated and divorced without much to do. However, from my perspective, the wounds that formed during their marriage and divorce had not healed, and in turn, the parties reached for the elixir of litigation to stop the bleeding. Unfortunately, what resulted was the acquisition of significant legal fees, and the parties’ pain and volatile relationship mired in various forms of abuse being played out on a public stage for all to see.

This article originally appeared as a column for the Cleveland Jewish News.

2023-11-10T13:38:05-05:00June 17th, 2022|Celebrity Divorces, Defamation, Domestic Violence|

Back to the Supreme Court We Go

By Andrew Zashin*

I and my team are back in the Supreme Court of the United States with an epic case that will be heard March 22, 2022.

I am proud to say that this is not our first rodeo at the Supreme Court.

Golan v. Saada is the fifth 1980 Hague Convention on Child Abduction case ever heard, and it turns on a central issue to the treaty, specifically the Grave Risk of Harm exception to return to a child’s Habitual Residence (Article 13(b)). We represent the Petitioner, a mother, who is the victim of domestic violence. The court has already determined that there exists a “Grave Risk of Harm” if the mother and her child are returned at least without some truly meaningful and enforceable ameliorative measures.

Previously, in Monasky v. Taglieri, we represented the Petitioner in the fourth 1980 Hague Convention on Child Abduction ever heard. The central issue in Monasky was Habitual Residence, the threshold issue in The Hague treaty. In the determination of Habitual Residence of an eight week old girl was the focus of the case.

Monasky is, and Golan will be, critical to interpreting the Hague Treaty in the United States, and no doubt, in the courts of foreign countries.

We continue to try to educate the court and jurists about matters they seem to know nothing about in the real world and over which they wield so much power over so many lives.

Yes, the world is often an unfair place.

We strive to even the playing field when we can.

Click here for a copy of the brief.

Official statement from Zashin & Rich: Monasky v. Taglieri 589 US____2020

We are, obviously, disappointed in the outcome of the Supreme Court case Monasky v. Taglieri, especially for its impact upon Michelle Monasky and her daughter. Like all matters before the Supreme Court, however, this case had, and has, implications bigger than the impact on the particular litigants. While our involvement in this case has always been about achieving justice for our client and her daughter, it highlighted the then-fractured nature of US Habitual Residence jurisprudence and the impact of domestic violence in 1980 Hague Convention cases.  

The Supreme Court of the United States adopted a new unifying standard for Habitual Residence, not just for infants and children unable to acclimate, but for determining Habitual Residence writ large. This seminal decision—on what is effectively the central provision of the 1980 Hague Convention (Habitual Residence)—renders many prior controlling decisions obsolete.   While the Court was unwilling to adopt an actual-agreement requirement to protect survivors of domestic violence, it did state that a child’s presence in a country due to parental coercion “should figure into the calculus.”  The Supreme Court further suggested that the “grave risk” exception remains “a mechanism for guarding children from the harms of domestic violence,” even if the Court was unprepared to address whether violence against a parent alone, but not specifically directed at the child, would constitute a grave risk of harm.

Despite the positive effects of a now-unified Habitual Residence standard, we remain concerned about the practical impact of the Court’s adoption of a purely fact-based Habitual Residence standard and a “clear error” standard of review. This pronouncement, and the Court’s apparent trade off of expediency over other considerations, makes more probable situations wherein cases being decided on similar facts have disparate outcomes driven by the proclivities of the particular judge or court hearing the case with almost no basis for meaningful appellate review. “Prompt but wrong” is not a generally accepted legal norm and is especially pernicious when the well-being of children is at stake.

Halle Berry’s Violent Custody Battle: Domestic Violence and Child Custody

Halle Berry’s personal family saga continues to evolve (see our previous posts on Berry’s child custody case here and here, and a related one involving Kelly Rutherford.) Just a few days ago, on Thanksgiving Day, a fight broke out between Gabriel Aubry, the father of Berry’s daughter Nahla, and Olivier Martinez, Berry’s fiancée. Apparently, Aubry was arrested at Halle’s house after allegedly pushing Olivier and striking him in the shoulder. (Martinez apparently defended himself by punching Aubry in the face – and sources differ as to whether Aubry was rendered unconscious from the blow.)

This comes at a particularly interesting time for Berry as she just failed in an attempt to get a court to grant her permission to relocate with her daughter to France, where Martinez lives. Does this violent episode help her? Does it hurt Aubry in the eyes of the court with regard to child custody? If a court finds that Aubry committed domestic violence will it help Berry get out of the country?

Having worked with many domestic violence cases, the first question that must be asked is this: is this incident domestic violence? Domestic violence laws vary from state to state, but, generally speaking, they are designed to protect family members from violence that might be perpetrated against them by other family members. The laws generally can be enforced through either civil courts or criminal courts. Where a court finds domestic violence (“DV”) to have occurred, broad remedies are available to protect family members. This could mean that someone is summarily evicted from their home. Financial arrangements could be made to protect vulnerable parties. Temporary protection orders could be issued against alleged perpetrators prohibiting them from trying to be anywhere near protected parties. These remedies can be applied at an ex parte hearing (a hearing without the opposing party present to defend himself or herself.) Shortly thereafter, such orders can be made more “permanent” at a full hearing where the accused is given a chance to appear and defend himself/herself.

Back the Berry’s story, according to news reports Aubry is being charged with some sort of criminal assault. He is also restrained from going near Berry, Martinez, or Nahla. So, is this domestic violence? Or is this just a case of criminal assault and battery? The answer may turn on whether or not a court considers Martinez to be a family member. In answering this question, where Martinez lives is relevant. If he simply stays with Berry in Los Angeles when he is not in France, that may not be enough for protection under the relevant DV laws.

Does a DV hurt someone’s attempt to get companionship rights with their child? Will this hurt Aubry regarding getting access and time with his daughter if a court finds that this episode is DV? Maybe. Maybe not. A finding of domestic violence, whether civil or criminal, could detrimentally impact a court’s determination of custody and access. But a court should consider against whom the violence occurred. If the DV was perpetrated against the child at issue it will matter more than if the violence that (allegedly) occurred was against only the fiancée.

Here, it appears that the violence occurred between Aubry and Martinez, and the child was not involved. Therefore, even though news reports indicate that Aubry is restrained from being near Berry, Martinez, or Nahla, those restraining orders may have been issued on an emergency and temporary basis. The reality is that the temporary restraining orders (“TRO”s) may be dissolved soon, especially the one against Nahla.) However, it is also likely that the court will not only consider, but frown upon, Aubry’s behavior if it is established that he was violent towards Martinez. But because the violence was not directed toward the child this incident may well have no impact on the overall child custody case.

So, ultimately, is this event likely to hurt Aubry with regard to Berry’s attempt to leave the country? If this case had taken place in Ohio (interestingly, Berry is originally from the Cleveland area) a number of protections against Aubry could have been put into place. For example, Aubry could have been ordered into counseling. He could have been prohibited from contacting, even via a third party, Berry, and even his daughter. And, if an act of domestic violence is established under Ohio Revised Code 3113.31, the civil law controlling domestic violence, or its counterpart under the criminal codes, that act of violence should be considered by a court not only as a reason against finding that a shared parenting plan is appropriate but also as a major factor in determining an appropriate parenting schedule.

At our firm we have lectured to other lawyers and consulted with many clients about this exact issue, and we have handled many cases where domestic violence intersects with child custody and shared parenting issues. These are tough cases. Findings of domestic violence do not help people seeking shared parenting with their children, and can impair their access to their children. But a finding of domestic violence it is often not fatal. This reality is good or bad depending on your perspective, either as the accused or as the alleged victim.

Finally, as we discussed in another blog entry, the reason Berry was not permitted to relocate to France was because the move would limit Nahla’s access to her father. That is true whether or not Aubry acted violently toward Martinez. Therefore, at the end of the day it is unlikely that this event will help Berry relocate from the United States to France. But, it most certainly could come back to haunt Aubry if (or when) he seeks to expand his parental access to Nahla. A court might find – and perhaps reasonably so – that if one cannot avoid a violent outburst when one comes to pick up one’s daughter, he may not be able to effectively co-parent with the mother of his child.

Charlie Sheen Loses His Kids, and Domestic Violence Civil Protection Orders

If you have paid any attention to the news lately then you probably already know that actor Charlie Sheen was fired. Both tabloids and mainstream news outlets have reported that he was terminated from the show “Two and a Half Men,” effective immediately. The decision by Warner Brothers comes as little surprise to most, after his highly publicized personal and legal troubles, reports about his “goddesses,” his “warlock” powers, and his “tiger blood,” a stint in rehab that postponed filming of the show, and the public feud between the actor and the show’s creator, Chuck Lorre. You may also know that Sheen’s former wife Brooke Mueller filed for and obtained a Temporary Restraining Order which prohibits Sheen from coming within 100 feet of either her or the parties’ twin sons, and which resulted in the police arriving on his doorstep within hours of the filing in order to take the children from his care.

Domestic violence is an extremely serious issue, and the courts have created a mechanism to secure immediate protection for children, family members, and other close relations. As happened in Sheen’s case, such protection can be granted on a temporary basis without any input at all from the abusive party.

The laws regarding Domestic Violence Civil Protection Orders have been carefully drafted in order to balance the alleged abuser’s constitutional due process rights against the more pressing need to protect children and other household and family members from physical harm. The process is playing out in Sheen’s case just as it does in courtrooms throughout the county, and this is a real teaching moment.

First, Mueller, as the petitioner, was required to show the hearing officer why she was in immediate fear for the safety of herself and her children. A copy of the petition is available here. Mueller’s petition tells of a long history of violence on Sheen’s part, violence that most recently culminated in him punching her, pulling a knife on her, threatening to stab her in the eye, and, even more disturbingly, threatening to cut off her head and send it in a box to her mother.
The immediate safety of the parties is paramount, and courts take such testimony regarding abuse very seriously. Based upon this testimony of Mueller, the Los Angeles Superior Court granted a temporary restraining order which will remain in effect until the parties have a full hearing on the matter. At the full hearing, presently scheduled for March 22, 2011, Sheen will have the opportunity to present his side of the story to the court, and the court will determine whether the temporary order should remain in effect for a longer period, often up to a period of years.

Ohio law differs slightly from the law of California, but the process is the same. At the first hearing, also known as the ex parte hearing, the hearing officer will consider the evidence of the individual, or the “petitioner,” seeking the order. The petitioner might be any of a number of people with a close relation to the alleged abuser, including a parent, child, spouse, former spouse, other household member, or even someone with whom the alleged abuser has a child, and the petitioner can seek protection on behalf of other household members. At this initial ex parte hearing the court will grant a temporary restraining order if the hearing officer finds an immediate and present danger of domestic violence. Domestic violence is not mere arguing or yelling. Domestic violence generally is defined as causing or attempting to cause bodily injury, child abuse, sexually oriented offenses, or causing a real fear of imminent serious physical harm.

If a temporary restraining order is granted at the ex parte hearing, the alleged abuser, or “respondent,” is entitled to a full hearing within seven to ten days. At the full hearing the respondent will have the opportunity to present evidence in his or her defense. After considering all evidence presented by both sides, the hearing officer will determine if a more permanent protection order is warranted. A Civil Protection Order may generally be granted for a period of up to five years. An individual who violates a Civil Protection Order may face jail time for contempt of court, and potentially criminal prosecution.

In Sheen’s case, only time will tell what evidence he will present in his defense and whether that evidence will be sufficient to convince the court that a longer term Domestic Violence Protection Order is not necessary. But for the time being, at least, Sheen’s bizarre, abusive and violent behavior was enough to bring the police to his home to take his children away and to prevent him from having any contact at all with the twins for at least the next few weeks.

2023-11-10T13:38:18-05:00March 8th, 2011|Domestic Violence|
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