| Abstrakt: |
In cases brought under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) and its implementing statute, the International Child Abduction Remedies Act (ICARA), the foremost concern is whether a wrongfully removed child may be safely repatriated into their country of habitual residence. When courts determine there is a "grave risk of harm" facing the child upon their return, the key inquiry becomes whether courts are required to identify and analyze any potential "ameliorative measures" that could be imposed to ensure the safety of the child. The Supreme Court of the United States granted certiorari in Golan v. Saada to resolve the circuit split concerning the proper consideration of ameliorative measures in these cases. The Court's 2022 opinion held state and federal courts have discretion to analyze ameliorative measures in cases where there is a "grave risk of harm" to the child. To guide future courts in exercising this discretion, the Court opined that courts ordinarily should address ameliorative measures raised by parents or as evidenced by the circumstances of the case. Specifically, courts should consider whether ameliorative measures are (1) intended to prioritize the child's physical and psychological safety, (2) without usurping the role of foreign countries in resolving the underlying custody issues, and (3) while moving as "expeditiously as possible.". In the year since the Golan opinion was released, courts are already grappling with how to interpret the Supreme Court's guidance. The Hague Convention and ICARA are notably silent on procedural matters, leaving courts with wide discretion on how to adjudicate child abduction cases. The gap in the plain language of the Hague Convention, ICARA, and existing case law is particularly amplified when analyzing cases where the taking parent is a victim of domestic violence. This Article surveys cases decided prior to and following Golan and advances a proposed two-stage judicial framework for court proceedings to promote consistent and expedient adjudication of international child abduction cases. Initially, a court should expedite the case, enter a case management order after consideration of written proofs of the parties, make a finding of whether the abducted child has been exposed to domestic violence, and appoint an attorney for the child. This Article argues that further consideration of ameliorative measures is not necessary in cases where the court initially finds that a child has been exposed to or is a victim of domestic violence. At the final trial, the court should contemporaneously determine the separate issues of (1) whether the petitioner establishes a prima facie case, (2) if so, whether the respondent can establish the child faces a "grave risk of harm" if returned, and (3) in cases without a preliminary finding of domestic violence, whether there are enforceable protective measures that can ameliorate that risk. [ABSTRACT FROM AUTHOR] |
