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.

The two most important cases to be decided by any court in the world regarding this treaty

By Andrew Zashin*

“These are basically the two most important cases to be decided by any court in the world regarding this treaty.”

“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.”

-Michael Scharf,
BakerHostetler Professor of Law,
School of Law,
Case Western Reserve University,
Frederick K. Cox International Law Center


On Tuesday, March 22, I am excited to have the rare opportunity to return to the Supreme Court of the United States (“SCOTUS”) with another monumental case, Golan v. Saada.

Golan regards an international treaty, specifically, the 1980 on the Civil Aspects of International Child Abduction (“Hague Treaty”). I and my Family Law team at Zashin & Rich, previously represented the Respondent in the seminal case, Monasky v. Taglieri, throughout that case and before the Supreme Court. The Monasky case was the fourth Hague Treaty case SCOTUS ever heard, and certainly the most important, as it dealt with the meaning and application of its threshold issue, “Habitual Residence” of a child.

In Golan, the fifth case SCOTUS will hear on this international treaty, the fundamental issue is also of exceptional importance, the 13(b) Grave Risk of Harm exception to a Habitual Residence return order.

More broadly, the Grave Risk of Harm issues in this case concern a lower court’s ameliorative measures order, and domestic violence, and whether or not a child should return to his Habitual Residence despite a Grave Risk of Harm finding under Article 13(b).

Generally speaking, a Grave Risk of Harm finding should prevent a child’s return to the place of his or her habitual residence. In this case, the the Federal District Court in the 2nd Circuit (New York) were legally bound to, and have tried to, create ways to make a return “safe” for Ms. Golan and her child. I personally, and other legal scholars believe (as opposed to our particular position in the Golan case, lawyers have to be flexible!), that there is no safe way to return a child after a Grave Risk finding has been found. In fact, to return a child after a Grave Risk of Harm finding would be both contrary to the explicit language and the spirit of the Hague Treaty.

Others, like those in the 2nd Circuit and those who support its findings, believe that it is a court’s duty to find any reasonable way to return a child whose Habitual Residence has been determined to be outside of the United States. Textually, the basis for this belief is baffling, because there is no language in the Hague Treaty itself that suggests such an interpretation. Also, traditional methods for interpreting international legal documents, like treaties, support my interpretation.

In addition, the United States requires the burden of proof to find Habitual Residence its the lowest standard, a “preponderance of the evidence.” To establish a Grave Risk of Harm, however, which Ms. Golan has established, the United States uniquely requires a higher standard, the “clear and convincing evidence” standard. Therefore, after having established this higher burden, the Respondent, our client, a domestic violence victim, who has no money and is being represented pro bono, is being asked again, to surmount yet another legal challenge, i.e., in layman’s terms, that the ameliorative measures the 2nd Circuit imposed are impermissible under the treaty. Which, of course, is odd because the Hague Treaty makes no mention of an exception to Grave Risk of Harm in the first place!!!

So, I ask, how many burdens does someone who has already made her case of Grave Risk of Harm have to face?

Is this justice?

In Golan, the ameliorative measures that the 2nd Circuit ordered to make the child’s return “safe,” are simply impractical, unenforceable, unfair, dangerous, and create an intolerable and unconscionable situation for the child and his mother.

On top of this, the federal courts have seemingly failed to consider that when this case started the child at issue was 2 years old and now the child is 6 years old. The father has not paid child support, and the child has been in America for 4 years. Moreover, the child, like his mother, speaks no Italian.

Moreover, as the parties have a Jewish religious, and not a secular, marriage. The husband’s failure to give our client, Ms. Golan, a Jewish religious divorce, a GET, prevents her from getting remarried or from having traditionally Jewish children. He is what is known as a “GET denier.” This fact is a violation of her human rights. An individual is allowed to practice the religion she chooses, without interference, fear, and coercion. She is also allowed to constitue her family as she wishes. Ms. Golan is being denied these rights (start here: Article 16, Universal Declaration of Human Rights). What the husband does do, through counsel, is use the GET as leverage; as a means of coercion. A GET given under such pressure, however, invalidates the GET in the first place. So his offer to give Ms. Golan a GET conditionally is merely a self-serving ploy (for example see his attorney’s comments in the article attached).

At the beginning of this post I set forth two quotations from world-renowned international legal scholar, Professor Michael Scharf, which are contained in the article herein. As the quotes attest, the Golan and Monasky cases are of monumental jurisprudential importance. They will be cited in judicial decisions concerning the issues of Habitual Residence and Grave Risk of Harm, in the United States, and surely, throughout the world.

I, and my team at Zashin & Rich, are proud to be at the absolute cutting edge of the most important legal issues internationally, in the United States, and throughout Ohio.

International case involving ‘get’ reaches Supreme Court

By BECKY RASPE | Cleveland Jewish News

Another habitual residence case, Golan v. Saada, involving a local family practice law firm will be heard March 22 by the U.S. Supreme Court in Washington, D.C.

The term “habitual residence” is essentially the location where a child has spent most of his or her life, or where he or she has the deepest connection. Whether the habitual residence is defined by the parent or by the child, age depending, is a matter of debate.

“I became involved because of the Monasky case,” attorney Andrew Zashin, co-managing partner of Zashin & Rich in Cleveland, and a member of Golan’s legal team. “This is in some ways the flip side of that case and I have always been interested in the Hague Convention’s Grave Risk of Harm exceptions.”

The difference with this case, compared to the most recent hearing of Monasky v. Taglieri that was ruled in favor of the father in February 2020, where Zashin represented the mother, Michelle Monasky, is that Golan v. Saada deals with grave risk of harm – where returning the child to his country of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, as laid out by Article 13(b) of The Hague Convention on the Civil Aspects of International Child Abduction – and whether a district court is required to consider ameliorative measures that would facilitate the return of the child safely, notwithstanding the grave risk finding.

A look at the case

In Golan v. Saada, the couple met and began a relationship in June 2014. Narkis Aliza Golan moved to Milan, Italy, to live with Isaaco Jacky Saada, and two months later, they were married in a religious Jewish marriage. Their child, referred to as B.A.S. in court documents, was born in Milan in 2016 and spent two years living there with his parents. But, in July 2018, Golan took B.A.S. to a wedding in New York and did not return to Milan in August as scheduled.

According to court proceedings, Saada then initiated actions in the Italian court system and the United States to seek the return of his son by filing a criminal kidnapping complaint, initiating civil proceedings against Golan. He filed his lawsuit in September 2018, but Golan refused, stating it would pose a physical and psychological danger to her and the child as the marriage was “physically, psychologically, emotionally and verbally abusive,” according to a January 2022 brief filed by Golan’s team, led by attorney Karen R. King, partner at Morvillo Abramowitz Grand Iason & Anello PC in New York City.

While Zashin has been involved in several domestic violence cases, what makes Golan v. Saada unique is that it involves the Hague Convention.

“Previously, the Supreme Court had heard only four cases regarding the Hague Convention, including Monasky v. Taglieri and this is the fifth,” he told the Cleveland Jewish News. “Monasky, that focused primarily on the Habitual Residence issue in the convention. This case focuses on the Article 13(b) issue, which is an exception to Habitual Residence, grave risk of harm. So, it is like the flip-side of Monasky. These are the two issues are pillars of the entire 1980 Hague Convention of Child Abduction, and cases like this will be cited forever. My client is an abused woman, a mother, who is both sympathetic and in an intolerable situation. The idea of her returning to Milan is horrible, unjust, and contrary to the language and spirit of the treaty itself.”

But Saada’s legal team, led by Richard Min, partner at Green Kaminer Min & Rockmore LLP in New York City, notes the case demonstrates clear child abduction under the Hague Convention, requiring the child to be returned by international law.

“I hope to use my expertise to advocate for a father who has been dealing with all of the complex effects of having his child taken from his home and extended family,” Min told the CJN in an emailed statement. “Decisions regarding the best interest of children should be decided by courts in their home country and parents should not be able to unilaterally abduct children with the aim of changing the jurisdiction of custody.”

Min added that since the child had been taken to the United States, B.A.S. has been “deprived of the love and support from the father and his extended family of grandparents, aunts, uncles and cousins who live in the same building.”

“Prior to the abduction, the child had daily contact with his extended family as well as weekly Shabbat meals and family gatherings, which he has since been denied,” he said.

Golan seeks ‘get’ from Saada

One of the other aspects of the case surrounds the claim that Golan has been denied a get, or a Jewish religious marriage divorce, from Saada.

“As such, she cannot remarry or have traditionally Jewish children under Jewish law,” Zashin said. “It is the first time a woman in this position, a chained woman, an “agunah,” has made it to the Supreme Court. It may not move the legal needle so to speak, in this case, but it does describe the character of the individual demanding the return of the child to Italy. The ability for her to have a family, the ability to define the nature of your family, is a human right. And our client, Ms. Golan, is being denied that right.”

But, Min noted that Saada has “consistently said he has no problem with the get as soon as the child returns to Italy.”

International importance

Michael P. Scharf, dean and the Joseph C. Hostetler-BakerHostetler Professor of Law at Case Western Reserve University School of Law in Cleveland, who helped co-write a March 2021 amicus brief submitted by the Frederick K. Cox International Law Center at CWRU, said the Golan v. Saada case, along with the prior Monasky v. Taglieri case, is “very important,” because of the sheer number of Americans that live abroad, have kids abroad or are married to people who live abroad.

“These are basically the two most important cases to be decided by any court in the world regarding this treaty,” he told the CJN. “The first case answered the question of what habitual residence means. This one focuses on the grave risk of harm, which is the exception of habitual residence. They’re bookends of the Hague Convention.”

Scharf said when the courts determined grave risk of harm but still moved to consider ameliorative measures was a “weird decision.”

“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,” he said. “But the 2nd Circuit said what if we order these protective measures? These are just very involved things that the U.S. courts could ask the Italian courts to do. The U.S. can ask that they do it, and just have to hope they will. They can’t follow up or complain about it if it isn’t happening.”

Something like that could cause issues in international relations, Scharf added.

“In our brief, we say that this offends ‘good neighborliness,’” he said. “Two things could happen, both of them bad. The U.S. courts could defer wrongly to the Italian courts to enforce the ameliorative measures, or two, these orders could get in the way of U.S. foreign relations with Italy.”

Decision could further clarity

Zashin said he hopes the hearing causes the Supreme Court to focus on the case’s practical evidence, rather than just taking a legalistic look.

“The child at issue here is six years old. He has lived in the United States for four years, and doesn’t know his family overseas,” he said. “The court, practically speaking, should consider how much time has elapsed already, because of how deficiencies in our own court system when it comes to handling Hague cases. The court should realize that sending the case back for more proceedings in the lower courts, which is a real possibility, would harm the child even more. The child at issue does not even speak Italian. Anything the lower courts can fashion in the way of ameliorative measures do not make sense anymore. Federal courts need to be streamlined when handling Hague cases. Therefore, remanding this case for further proceeding would be grossly unfair.”

And the fact the case is being heard at all is a “credit to our legal system,” Zashin said.

“This case has been going on for a years,” he said. “There are so many unanswered questions in our system about how it can handle situations like this. So, we hope the Supreme Court is going to create some uniform procedural rules and not make the situation worse. Ideally, we want the Court in this case to stop the delays, end all the court proceedings, and let the child stay in the only home he knows.”

Min said his team hopes the child is instead returned to Italy in time for the custody proceedings scheduled for June.

“Ultimately, a thorough best-interests analysis will also include an evaluation, not just of the father, but also of the mother’s parental abilities and the risk she may herself present to the child,” he said. “These factors are critical to the custody case in Italy but have largely been ignored as it is not relevant to a Hague case, which serves only to highlight the differences between a custody case and a Hague abduction case.”

But simply put, Zashin said, “this sounds like a cliche, but this case will literally be one for the books.”

Other than the custody hearing scheduled in Italy this spring, there is no currently established time frame for the opinion and vote.

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

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.

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