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.