Dkt. No. 40 - Brief For Petitioner-Appellee

Case 20-1544, Document 40, 06/03/2020, 2853734, Page1 of 50
20-1544-CV
IN THE
United States Court of Appeals

FOR THE SECOND CIRCUIT
>> >>
ISACCO JACKY SAADA,
Petitioner-Appellee,
v.
NARKIS ALIZA GOLAN,

Respondent-Appellant.
On Appeal from the United States District Court

for the Eastern District of New York
BRIEF FOR PETITIONER-APPELLEE
Richard Min
BURGER GREEN & MIN LLP
Attorneys for Petitioner-Appellee
420 Lexington Avenue, Suite 2834
New York, New York 10170
212-257-1944
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii
PRELIMINARY STATEMENT ............................................................................... 1
STATEMENT OF THE ISSUE ................................................................................. 3
STATEMENT OF THE CASE .................................................................................. 4
I. Factual Background .................................................................................... 4
II. The Grave Risk Finding ............................................................................. 5
III. The Undertakings Ordered by the District Court ....................................... 6
IV. The Second Circuit’s July 19, 2019 Opinion ............................................. 7
V. The Case on Remand .................................................................................. 9
VI. The Second Return Order ......................................................................... 13
SUMMARY OF ARGUMENT ............................................................................... 16
STANDARD OF REVIEW ..................................................................................... 17
ARGUMENT ........................................................................................................... 17
I. General Goals of the Hague Convention .................................................. 17
II. Undertakings Are A Crucial Component to the Hague

Convention................................................................................................ 20
A. Ameliorative Measures Further the Goals of the Hague

Convention ........................................................................................ 22
B. Ameliorative Measures are Appropriate in this Case

and Are Enforceable ......................................................................... 25
i
III. The Ameliorative Measures in Place are Sufficient to Protect

the Child ................................................................................................... 27
A. Mr. Saada’s Character Does Not Preclude Repatriating

B.A.S. ................................................................................................ 27
B. The Italian Court Proceedings Make This Case is

Readily Distinguishable .................................................................... 32
IV. The District Court Properly Weighed Ms. Golan’s and

B.A.S.’s Safety ......................................................................................... 38
CONCLUSION ........................................................................................................ 42
CERTIFICATE OF COMPLIANCE ....................................................................... 44
ii
TABLE OF AUTHORITIES
Page
Cases
Abbott v. Abbott,
560 U.S. 1 (2010) ..................................................................................................18
Acosta v. Acosta,
725 F.3d 868 (8th Cir. 2013) ................................................................................34
Acosta v. Acosta,
2012 WL 2178982 (D.Minn. 2012) ......................................................................34
Baran v. Beaty,
479 F. Supp. 2d 1257 (S.D. Ala. 2007), aff'd,
526 F.3d 1340 (11th Cir. 2008) ............................................................................35
Blondin v. Dubois (Blondin III),

78 F. Supp. 2d 283 (S.D.N.Y. 2000), ...................................................................41
Blondin v. Dubois (Blondin IV),

238 F.3d 153 (2d. Cir. 2001) ................................................................................21
Blondin v Blondin (Blondin II),

189 F.3d 240 (2d Cir. 1999) ......................................................................... passim
Chafin v. Chafin,
133 S. Ct. 1017 (2013) ..........................................................................................18
Davies v. Davies,
717 F. App'x 43 (2d Cir. 2017) ...................................................................... 33, 38
Davies v. Davies,
2017 WL 361556 (S.D.N.Y. Jan. 25, 2017), aff'd, 717 F. App'x 43
(2d Cir. 2017) ........................................................................................................33
Gitter v. Gitter,
396 F.3d 124 (2d Cir. 2005) .................................................................................18
In re D.T.J.,
956 F. Supp. 2d .....................................................................................................41
iii
In re Koc,
181 F. Supp. 2d 136 (E.D.N.Y. 2001) ..................................................................38
In re Matter of NIR,
797 F. App’x 23 (2d Cir. 2019) ............................................................................34
Mohacsi v. Rippa,
346 F. Supp. 3d 295 (E.D.N.Y. 2018) ..................................................................34
Monasky v. Taglieri,
140 S. Ct. 719 (2020) ............................................................................................17
Ostevoll v. Ostevoll,
2000 WL 1611123 (S.D. Ohio Aug. 16, 2000) ....................................................36
Ozaltin v. Ozaltin,
708 F.3d 355 (2d Cir. 2013) .................................................................................17
Reyes Olguin,
2005 WL 67094 ....................................................................................................41
Saada,
II, 930 F.3d (2d Cir. 2009) ............................................................................ passim
Saada v. Golan, 18-CV-5292, (AMD),

2019 WL 1317868 (E.D.N.Y. Mar. 22, 2019) (“Saada I”),
aff’d in part, vacated in part, remanded, 930 F.3d 533, 543
(2d Cir. 2019) ................................................................................................ passim
Saada v. Golan,
2020 WL 2128867 (E.D.N.Y. May 5, 2020) ................................................ passim
Simcox v. Simcox,
511 F.3d 594 (6th Cir. 2007) ......................................................................... 26, 36
Souratgar v. Lee,
720 F .3d 96 (2d Cir. 2013) ..................................................................................18
Valles Rubio v. Veintimilla Castro,

2019 WL 5189011 (E.D.N.Y. Oct. 15, 2019), aff'd, 2020 WL 2311897 ...... 24, 38
Valles Rubio v. Veintimilla Castro,
2020 WL 2311897 (2d Cir. May 11, 2020) ................................................... 24, 25
iv
Van De Sande v. Van De Sande,

431 F.3d 567 (7th Cir. 2005) ................................................................................21
Walsh v. Walsh,
221 F.3d 204 (1st Cir. 2000) .................................................................................35
Statutes
22 U.S.C. §§ 9001-9011 ............................................................................................1
Other Authorities
Elisa PerezVera, Explanatory Report: Hague Conference on Private
International Law, in 3 Acts and Documents of the Fourteenth Session 426
(1980) ....................................................................................................................21
v
PRELIMINARY STATEMENT
This brief is submitted by Petitioner-Appellee Jacky Saada in opposition to
Respondent-Appellant Narkis Golan’s appeal of the District Court’s decision after
remand ordering, for the second time, the return of the parties’ three-year-old son,
B.A.S., (the “Child”) from New York back to Italy, his country of habitual residence.
On September 20, 2018, Mr. Saada initiated a proceeding against Ms. Golan
pursuant to the Hague Convention on the Civil Aspects of International Child
Abduction, as implemented by the International Child Abduction Remedies Act
(“ICARA”), 22 U.S.C. §§ 9001-9011. Mr. Saada, an Italian citizen, alleged that in
August of 2018, Ms. Golan, an American citizen, wrongfully retained their minor
son, B.A.S., in the United States.
On March 22, 2019, the District Court issued a decision finding that B.A.S.
was a habitual resident of Italy and that, while there was a grave risk of harm upon
repatriation due to the possibility of witnessing domestic violence between the
parties, there were sufficient measures available in Italy to keep the parties separated
and thereby ameliorate the risk. Saada v. Golan, 18-CV-5292, (AMD), 2019 WL
1317868, *1, *2 (E.D.N.Y. Mar. 22, 2019) (“Saada I”), aff’d in part, vacated in part,
remanded, 930 F.3d 533, 543 (2d Cir. 2019) (“Saada II”).
The Second Circuit affirmed the decision in part and vacated it in part. Saada
II, 930 F.3d at 537 (2d Cir. 2009). This Court agreed that Italy is B.A.S.’s “habitual
-1-
residence” under the Hague Convention, but determined that certain measures
ordered by the District Court could not be enforced before B.A.S. was repatriated to
Italy. Id. at 542-43. The Second Circuit remanded the case and instructed the District
Court to ensure that the measures necessary for B.A.S.’s safe repatriation could be
“enforce[d] by the District Court or supported by other sufficient guarantees of
performance.” Id. at 543.
The District Court then, over the course of nine months, extensively examined
the enforceable measures available in Italy, opened a dialogue with the Italian
judiciary thought the International Judicial Network under the Hague Convention,
and ordered that the parties take steps, such as obtaining an order of protection for
Ms. Golan, to achieve the goal of protecting the Child upon repatriation.
On December 12, 2019, the Italian court overseeing the parties’ custody
dispute over B.A.S. issued a comprehensive order (the “Italian Order”) imposing
various measures to facilitate B.A.S.’s Italian repatriation. JA-556; ECF No. 96-1.
The Italian Order included, among other provisions, interim custody of the Child to
Ms. Golan, a protective order against Mr. Saada, supervised visits in a neutral space,
and court ordered therapy and parenting classes overseen by Italian Social Services.
JA-564-567.
On May 5, 2020, the District Court again ordered B.A.S. to be returned to
Italy. See Saada v. Golan, 2020 WL 2128867 (E.D.N.Y. May 5, 2020) (“Saada III”).
-2-
The District Court’s carefully constructed order ensures that Ms. Golan will arrive
in Italy with custody of B.A.S., an order of protection against Mr. Saada, supervised
visitation, extensive court and Social Services oversight, and financial
independence. This Court should affirm the District Court’s order, which properly
balances the safety of the Child with the goals of the Hague Convention. Nearly two
years after B.A.S. was abducted in the summer of 2018, it is now time to finally
return him to Italy, his country of habitual residence, where custody proceedings can
continue as the Hague Convention intended.
STATEMENT OF THE ISSUE
1. Whether the District Court correctly found that the proposed
ameliorative measures in place are sufficient to ensure B.A.S.’s safety upon
repatriation and are either enforceable or supported by other guarantees of
performance.
2. Whether the District Court’s order furthers the goals of the Hague
Convention when it ensured that there are enforceable measures in place securing
the Child’s safe return.
-3-
STATEMENT OF THE CASE
I. Factual Background
Mr. Saada, an Italian citizen, was born and currently resides in Milan, Italy.
Ms. Golan, an American citizen, currently resides in New York. Mr. Saada and Ms.
Golan have one child, B.A.S., who was born in Italy and has dual Italian and
American citizenship. The parties met and began a relationship in 2014, and on
August 25, 2014, Ms. Golan moved to Milan, Italy to live with Mr. Saada. Saada I,
2019 WL 1317868 at *1, *2. They were engaged on February 18, 2015 and were
married in Tel Aviv, Israel on August 18, 2015. The Child was born in June 2016
while the parties lived in Milan, Italy. Saada I, 2019 WL 1317868 at *2.
The parties fought frequently during their relationship, and both engaged in
incidents of domestic violence. Id. at *4. In the summer of 2018, Ms. Golan and the
Child left Italy to attend her brother’s wedding in New York. Id at *10. When she
failed to return to Italy with the Child as scheduled, Mr. Saada initiated this
proceeding on September 19, 2018. Id. at *4. In Italy, the parties are both engaged
in an ongoing custody dispute. Saada III, 2020 WL 2128867 at *3.
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II. The Grave Risk Finding1
After a nine-day trial, the District Court found that Ms. Golan had established
the Article 13(b) “grave risk of harm” exception under the Hague Convention. The
District Court specifically stated that the grave risk of harm to B.A.S. would be
caused by “exposure to violence between [Mr. Saada] and [Ms. Golan].” Saada III,
2020 WL 2128867 at *2.2 The Court made a distinct point of stating that B.A.S was
never a target of abuse (id.) and that “. . . there was no evidence that [Mr. Saada]
was violent to B.A.S.” Saada III, 2020 WL 2128867 at *4. The Court also found
that Ms. Golan “did not see Mr. Saada as a threat” to the Child, and frequently left
B.A.S. with Mr. Saada while she ran errands or went out with friends. Saada I, 2019
WL 1317868 at *18, n.37.
The Court found that Mr. Saada’s expert psychologist, Dr. Alberto
Yohananoff, provided the “clearest and most objective evaluation” of the potential
risk to the Child. Saada I, 2019 WL 1317868 at *12. Dr. Yohananoff opined that
any risk to the Child would be mitigated if Mr. Saada’s visits were supervised and if
he received parental coaching and psychoeducational training. Id.
1
The District Court also found that Italy was the Child’s habitual residence.
This Court affirmed that finding and therefore it is not relevant to this instant
appeal.
2
The District Court held no further fact-finding hearings on the issue of grave
risk of harm and the findings in “Saada III” are consistent with and result from the
nine-day bench trial held in January 2019.
-5-
In fashioning the undertakings to protect the Child, the District Court aimed
to craft measures to create separation between Mr. Saada and Ms. Golan upon the
return to Italy because their interaction – rather than contact between Mr. Saada and
the Child – had the potential to cause future harm. Id. at *19
III. The Undertakings Ordered by the District Court
In its Memorandum and Order dated March 22, 2019 (Saada I, 2019 WL
1317868, JA-436), the District Court ordered the return of the Child to Italy subject
to the following undertakings/ameliorative measures:
(1) Mr. Saada to give Ms. Golan $30,000 before B.A.S. is returned to Italy for
housing accommodations without restriction on location in Italy, financial support,
and legal fees;
(2) Mr. Saada to stay away from Ms. Golan until the Italian courts address this
issue;
(3) Mr. Saada to pursue dismissal of criminal charges against Ms. Golan
relating to her abduction of B.A.S.;
(4) Mr. Saada to begin cognitive behavioral therapy in Italy;
(5) Mr. Saada to waive any and all rights to legal fees or expenses under the
Hague Convention and ICARA for the prosecution of this action;
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(6) Mr. Saada to provide the full record of these proceedings, including trial
transcripts, court filings, exhibits, undertakings, expert reports, and decisions of this
Court to the Italian court presiding over the custody proceeding;
(7) Mr. Saada to provide a sworn statement with the measures he will take to
assist Ms. Golan in obtaining legal status and working papers in Italy;
(8) Mr. Saada to drop any current civil actions against Ms. Golan in Italy
based on the abduction of B.A.S. and must not pursue any future criminal or civil
actions against her in Italy based on the abduction.
Saada I, 2019 WL 1317868 at *20.
The District Court found that, since the grave risk of harm posed to the Child
was based on exposure to possible future domestic violence between the parties, that
the undertakings it ordered would “sufficiently ameliorate the risk of harm to B.A.S.
upon repatriation” by separating the parties and “eliminating the element of
proximity” which will “reduce the occasions for violence.” Id. at *19.
IV. The Second Circuit’s July 19, 2019 Opinion
After Ms. Golan appealed the District Court’s March 22, 2019 order, this
Court issued a decision on July 19, 2019 (Saada II, 930 F.3d 533; JA-474) and found
that it would be appropriate to return the Child subject to undertakings so long as
they were enforceable or had sufficient guarantee of performance. The case was
remanded the case back to the District Court for that purpose. Saada II, 930 F.3d at
-7-
543 (“[b]ecause the record before the District Court does not support the conclusion
that there exist no protective measures sufficient to ameliorate the grave risk of harm
B.A.S. faces if repatriated, remand for further proceedings is appropriate.”).
With that foundation, this Court specified two measures which it deemed
“essential to mitigating the grave risk of harm B.A.S. faces.” Id. at 540. These were
the requirements that Mr. Saada stay away from Ms. Golan after she returned to
Italy, and that he visit B.A.S. only with Ms. Golan’s consent. Id. This Court directed
the District court to:
. . . determine whether there exist alternative ameliorative measures that

are either enforceable by the District Court or, if not directly
enforceable, are supported by other sufficient guarantees of
performance.
In doing so, the District Court may consider, among other things,
whether Italian courts will enforce key conditions such as Mr. Saada’s
promises to stay away from Ms. Golan and to visit B.A.S. only with
Ms. Golan’s consent.
Id. at 541
In order to achieve that goal, this Court stated that the District Court could
order the parties to apply to the Italian court overseeing the parties’ custody case for
“any available relief that might ameliorate the grave risk of harm to the child.” Id.
This Court specifically referenced the District Court’s finding that the Italian courts
can issue “‘criminal and civil court orders of protection’ and ‘orders of supervised
visitation during the pendency of custody proceedings.’” Id. at 542. This Court also
suggested, among other measures, that the District Court "use its broad equitable
-8-
discretion to request the aid of the United States Department of State, which can
communicate directly with the government of Italy to ascertain whether it is willing
and able to enforce certain protective measures." Id. (internal quotations, alteration,
and citation omitted). This Court further noted that the lack of any Italian orders of
protection or supervised visitation orders was perhaps attributable to the fact that
neither of the parties had applied for such relief and directed the District Court to
consider compelling the parties to makes such applications. Id.
V. The Case on Remand
The District Court set out to meticulously determine which enforceable
measures were available in Italy. On August 2, 2019, it issued an order (JA-493)
advising that it had contacted the State Department and was in contact with the
International Judges Network. Judge Donnelly contacted the U.S. Network Judge,
Hon. Peter J. Messitte, who then opened a line of communication with two Italian
Network Judges regarding the case. JA-494. Both the District Court’s and this
Court’s orders were sent to the Italian Network Judges. Id. The District Court stated
that “The Italian Network Judges will review the information and advise the Court
whether those ameliorative measures specifically designed to assure B.A.S. 's safety
could be implemented, monitored, and respected in Italian courts.” JA-495.
On August 15, 2019, Judge Messitte sent a letter to the Italian Network Judges
regarding the case. JA-498. He laid out the essential facts of the case and, among
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other things, stated “. . . the essential inquiry is whether, in your judgment, the Italian
courts would be able to ensure that the undertakings that Judge Donnelly has
prescribed in her Order would be implemented, monitored, and respected in Italian
courts. Further, she is hopeful that you might be able to advise her as to which
particular Italian court or courts in Italy she should be in touch with to determine
this.” JA-500.
On October 8, 2019, Italian Justice Giuseppe Vinciguerra, sent a letter in
response. JA-502. He stated in sum and substance that the Italian court was able to
issue an order of protection for Ms. Golan even before she or the Child return to Italy
and that “. . . should the U.S. Judge inform about the date and place of the child’s
return, we will address the Court of Milan in view of taking steps ahead of time so
as to make protection measures effective and immediately enforceable.” JA-502.
On October 11, 2019, Judge Donnelly wrote a letter in response to Justice
Vinciguerra’s. JA-506. She sought clarification on the issues of the protective order,
the dismissal of the criminal charges pending against Ms. Golan, Ms. Golan’s legal
status and work permit, and the ability of the Italian court to ensure compliance with
the cognitive behavioral therapy she ordered Mr. Saada to undergo.
On November 12, 2019, Justice Vinciguerra emailed a letter response. JA-
509. He confirmed that an order of protection issued by the Italian court would be
immediately enforceable in Italy and that the Italian court was “empowered to
-10-
instruct therapy-related programs obviously taking account of the findings of the
proceedings held in the US and of the treatment, if any, already started.” JA-508-
509.
On November 15, 2019, the District Court issued another order regarding
ameliorative measures. JA-513. It directed that the parties to obtain an order of
protection in Italy, for Mr. Saada to request court-monitored therapy, to update the
District Court on the status of the pending Italian criminal charges, for Ms. Golan to
take steps to obtain legal status in Italy, and for the parties to confer regarding
financial support for Ms. Golan and the Child upon their return to Italy. JA-513-514
The parties’ respective Italian counsel appeared in the ongoing custody case
in Milan, Italy on December 12, 2019. Requests were made for temporary custody
of B.A.S. to Ms. Golan, an order of protection, supervised visitation, court ordered
therapy, and financial support. JA-517; JA-531. Mr. Saada waived any right to bring
future civil or criminal against Ms. Golan regarding B.A.S.’s abduction, signed a
document to that effect, and read it in open court. JA-545; ECF 94-1.
On December 17, 2019, the Italian Order was issued by the Court of Milan.
JA-556; ECF No. 96-1. The Italian Order provides for the following:
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(1) An order of protection directing Mr. Saada to stay away from Ms.
Golan and the Child’s place of residence, her place of work, the Child’s school, and
“other places habitually frequented by them,” effective immediately upon the return
of Ms. Golan and B.A.S. to Italy. Its initial duration is one year and can be extended.
(2) Mr. Saada to submit to cognitive behavioral therapy, parenting
classes, and psychoeducational therapy to be overseen by Italian Social Services,
with updates on his progress to be periodically provided to the Court. The Court
further stated that if Mr. Saada does not comply with the court’s or Social Services’
directives, such action could be held against him in the custody proceedings.
(3) Supervised parenting time for Mr. Saada.
(4) Financial support for Ms. Golan and the Child of an unspecified
amount, to be determined when she and the Child return to Italy.
On January 28, 2020, the District Court held a conference to discuss the status
of the various undertakings. Judge Donnelly had reviewed the Italian Order and
stated “I have to put in place measures that can be either enforced or that have
guarantees of performance and I would just add, the thorough nature of the [Milan
court's] order is persuasive evidence to me that they are taking this case very
-12-
seriously.” JA-591; Tr. 5-9. The District Court clarified to the parties: “The question
before me is what ameliorative measures are sufficient to ensure the child's safe
return to Italy and anything within those parameters is fine. . . I made certain factual
determinations which I think, I think the Second Circuit took issue with whether or
not the ameliorative measures could be enforced before the child's return.” JA-612;
Tr. 5-17.
On January 31, 2020, the pending Italian criminal charges against Ms. Golan
regarding B.A.S.’s abduction were dismissed by the Italian judge overseeing the case
upon Mr. Saada’s request. JA-626; ECF No. 99. On May 5, 2020, the District Court
issued its second Memorandum Decision and Order granting the Petition and
directing the return of B.A.S. to Italy. JA-633.
VI. The Second Return Order
The District Court began its analysis by finding that the “Italian courts are
willing and able to enforce the conditions necessary to protect B.A.S.” Saada III,
2020 WL 2128867 at *3. It also recognized that both parties have “obtained legal
counsel and are active litigants in an ongoing custody dispute in Italy” Id.
-13-
Regarding the Italian Order, the District Court stated that it “noted the extensive case
documentation in this Court’s proceedings, as well as the Court’s finding that the
petitioner was physically and psychologically violent toward the respondent,
sometimes in the presence of B.A.S.” Id. The order of protection put in place by the
Italian court was found to be “sufficient to ameliorate the grave risk of harm resulting
from [B.A.S.’s] parents’ violent relationship.” Id. at *4.
The District Court was able to determine the exact capabilities of the Italian
court and its ability to achieve the District Court’s goal of protecting B.A.S. upon
repatriation. Put succinctly, “. . . the Italian justice system is actively involved with
the parties and their disputes, including most significantly, B.A.S.’s welfare.” Id.
In addition to the Italian Order, the Italian criminal court dismissed charges
against Ms. Golan in connection with B.A.S.’s removal from Italy. Id. Mr. Saada
signed a statement agreeing not to pursue future criminal or civil actions against Ms.
Golan and submitted it to the Italian court. Id. The District Court was confident to
return B.A.S. because “[t]he Italian court has issued a comprehensive order that
demonstrates an understanding and respect for this Court’s findings, and has
imposed measures consistent with B.A.S.’s safe return.” Id. at *4.
The District Court also ordered Mr. Saada to give Ms. Golan $150,000 before
her return to cover her and the Child’s expenses to “ensure [Ms. Golan’s] interim
stability pending the Italian custody proceeding.” Id. at *5
-14-
The District Court found that the proposed ameliorative measures, all of
which are now enforceable, are sufficient to ameliorate the grave risk of harm to
B.A.S. upon his repatriation. Id. at *2.
The District Court rejected Ms. Golan’s argument, identical to that which she
advances before this Court, that the Italian Order was insufficient because Mr. Saada
was untrustworthy. Id. at *4. The District Court explained that the record did not
support the contention that Mr. Saada would violate the Italian court’s orders. Id. On
the contrary, the record reflected that Mr. Saada complied with the 2017 Italian
Social Services investigation into the parties after Ms. Golan called the police on
him. Id.
Further, since the case was initiated, Mr. Saada had been exercising
supervised visitation in New York and had complied with all of the conditions of
supervised visits. Id. Crucially, the District Court recognized that Mr. Saada would
be held accountable for his actions by the Italian court, and if he failed to comply
with its orders, he could lose the ability to see his son. Id. These facts collectively
allowed the District Court to confidently conclude that B.A.S. would be safe in Italy
and that the courts there would protect him.
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With enforceable Italian court orders and money being transferred to Ms.
Golan before the return for her and the Child’s financial support, the District Court
was confident that it achieved the goals set before it by this Court and granted the
Petition.
SUMMARY OF ARGUMENT
The District Court’ grant of the Petition should be affirmed because the
ameliorative measures in place, which include an order of protection, supervised
visits, court ordered therapy, and a financial award, are enforceable and sufficient to
protect the Child when he returns to Italy.
None of the undertakings rely on a promise by Mr. Saada, and he will be under
the oversight of both the Italian Court and Italian Social Services when the Child
returns to Italy. He has demonstrated in the past that has complied with directives
from the District Court and Italian Social Services, and he is under the threat of
losing custody rights to the Child if he fails to abide by the Italian court’s orders.
The District Court sufficiently weighed all of the appropriate factors regarding
B.A.S.’s safe return and appropriately concluded that the undertakings in place are
sufficient to ameliorate the risk of harm. Repatriating B.A.S. to Italy comports with
public policy and international comity, given the extensive consideration that the
Italian court has given to the findings of the District Court and the comprehensive
order it issued aimed toward protecting the Child when he returns.
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STANDARD OF REVIEW
The district court’s factual findings are reviewed for clear error and its legal
conclusions – including its interpretation of the Hague Convention and its
application of relevant legal standards to the facts – are reviewed de novo. Ozaltin
v. Ozaltin, 708 F.3d 355, 368 (2d Cir. 2013); see also Saada II, 930 F.3d at 538.
ARGUMENT
I. General Goals of the Hague Convention
The Supreme Court recently stated in Monasky v. Taglieri, 140 S. Ct. 719,
723 (2020) that “[t]he Convention's return requirement is a “provisional” remedy
that fixes the forum for custody proceedings. Upon the child's return, the custody
adjudication will proceed in that forum.” With that understanding the District Court
wrote “the exercise of comity that is at the heart of the [Hague] Convention requires
[the Court] to place [its] trust in th[ose] court[s]” of Italy to do what is necessary to
protect B.A.S. Saada II, 930 F.3d at 539-40 (citing Blondin v Blondin (Blondin II),
189 F.3d 240, 248-49 (2d Cir. 1999)). Saada III, 2020 WL 2128867 at *4.
This Court has made clear that “the important treaty commitment” articulated
in the Hague Convention is “to allow custodial determinations to be made – if at all
possible – by the court of the child’s home country.” Blondin II, 189 F.3d at 248.
This is because “the whole structure of the Convention depend[s] on the institutions
-17-
of the abducted-to state generally deferring to the forum of the child’s home state.”
Id. (citation and internal quotation marks omitted).
The Hague Convention is intended to '"protect children internationally from
the harmful effects of their wrongful removal by establishing procedures to ensure
their prompt return to the State of their habitual residence,' so that the 'rights of
custody and of access under the law of one Contracting State are effectively
respected in the other Contracting States."' Souratgar v. Lee, 720 F .3d 96, 101-02
(2d Cir. 2013) (quoting Abbott v. Abbott, 560 U.S. 1, 32 n.6 (2010) and Chafin v.
Chafin, 133 S. Ct. 1017, 1021 (2013)). The Convention is particularly focused on
instances of "unilateral removal or retention of children by those close to them, such
as parents, guardians, or family members." Gitter v. Gitter, 396 F.3d 124, 129 (2d
Cir. 2005) (citation omitted). The Convention's remedy is repatriation, which "is
designed to preserve the status quo in the child's country of habitual residence and
deter parents from crossing international boundaries in search of a more sympathetic
court." Souratgar, 720 F.3d at 102 (internal quotations omitted).
In the primary source of interpretation for the Convention, the Explanatory
Report, Professor E. Perez-Vera noted that “[t]he practical application of this
principle requires that the signatory States be convinced that they belong, despite
their differences, to the same legal community within which the authorities of each
State acknowledge that the authorities of one of them —those of the child's habitual
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residence are in principle best placed to decide upon questions of custody and access.
As a result, a systematic invocation of the said exceptions, substituting the forum
chosen by the abductor for that of the child's residence, would lead to the collapse
of the whole structure of the Convention by depriving it of the spirit of mutual
confidence which is its inspiration." Elisa Perez-Vera, Explanatory Report: Hague
Conference on Private International Law in 3 Acts and Documents of the Fourteenth
Session ("Explanatory Report"), 34 at 22-23.
This Court, in Blondin II, 189 F.3d at 242, stated that the “careful and
thorough fulfillment of our treaty obligations” not only protects child abducted to
the U.S. but also serves “to protect American children abducted to other nations
whose courts, under the legal regime created by this treaty, are expected to offer
reciprocal protection.” Italy and the United States are treaty partners, part of the
same legal community. In a very real sense, refusing to send the child back to Italy
gives license to foreign countries' courts to act in the same manner in refusing to
return children to the United States where there may be pending custody proceedings
and where the courts are fully capable and willing to protect children from harm.
There would be no need for an international treaty for child abduction if every
country assumed that the other treaty members would not or could not protect the
well-being of the children in their jurisdiction. We should believe that our treaty
partners are able to protect children just as we are; otherwise, the very foundation
-19-
upon which treaty rests crumble, and the treaty itself is rendered moot and
ineffective.
Italy is the Child’s habitual residence. Italy has demonstrated – not in theory
but in practice – that it is willing and able to protect B.A.S. Returning B.A.S. to his
home would achieve the goals of the Convention.
II. Undertakings Are A Crucial Component to the Hague Convention
Ms. Golan seeks to overturn the law in this Circuit by arguing that
ameliorative measures and undertakings are inappropriate in cases involving
domestic violence. This Court has clearly explained in a well-established body of
case law that, on the contrary, ameliorative measures are appropriate in these
instances because of the comity concerns. Saada II, 930 F.3d at 539-540, quoting
Blondin II, 189 F.3d at 248.
In Blondin II, this Court remanded the case to the district court with
instructions to “take into account any ameliorative measures (by the parents and by
the authorities of the state having jurisdiction over the question of custody) that can
reduce whatever risk might otherwise be associated with a child’s repatriation.” Id.
at 248. This Court further stated that “[t]he Court must examine “the range of
remedies that might allow both the return of the child[ ] to [his] home
country and [his] protection from harm, pending a custody award in due course by a
[court in the country of the child’s habitual residence] with proper jurisdiction.” Id.
-20-
at 249. Thus, “[i]n cases of serious abuse, before a court may deny repatriation on
the ground that a grave risk of harm exists under Article 13(b), it must examine the
full range of options that might make possible the safe return of a child to the home
country.” Blondin v. Dubois (Blondin IV), 238 F.3d 153, 163 (2d. Cir. 2001). The
inquiry is not whether repatriation would place the respondent in danger, but whether
the grave risk of harm to the child is unavoidable. Id. at 160-61.
The undertakings also may “accommodate [both] the interest in the child's
welfare [and] the interests of the country of the child's habitual residence.” Van De
Sande v. Van De Sande, 431 F.3d 567, 571-72 (7th Cir. 2005). The Hague
Convention's Reporter has explained "that the 'whole structure of the Convention'
depend[s] on the institutions of the abducted-to state generally deferring to the forum
of the child's home state." Blondin II, 189 F.3d at 248 (quoting Elisa Perez-Vera,
Explanatory Report: Hague Conference on Private International Law, in 3 Acts and
Documents of the Fourteenth Session 426 (1980)).
In Saada II, 930 F.3d at 539, this Court explained that the District Court
must “take into account any ameliorative measures (by the parents and by the
authorities of the state having jurisdiction over the question of custody) that can
reduce whatever risk might otherwise be associated with a child’s
repatriation” (internal quotation marks and citation omitted)). The District Court in
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this action precisely followed this Court’s directions and considered the extensive
measures available (and already in place) in Italy before ordering the return.
The District Court’s goal was to find ameliorative measures which “reduce
whatever risk might otherwise be associated with the child’s” return (Blondin II, 189
F.3d at 248). After effectively doing so, the policy goals as iterated by this Court
now dictate that the Child should be returned to Italy.
A. Ameliorative Measures Further the Goals of the Hague Convention
Ms. Golan argues that granting petitions contingent on ameliorative measures
in domestic violence Hague Convention cases undermines the goals of the treaty.
She notes that many of the recent cases in this Circuit have involved domestic
violence (50% of the last 12), and that the typical case now involves a mother fleeing
violence. In this situation, according to Ms. Golan, even if a District Court finds that
the habitual residence can protect the Child the petition should still be denied.
Her reasoning is faulty and if this Court were to adopt her position it would
hollow out the treaty. This Circuit holds that the exercise of comity is at the heart of
the treaty. Saada II, 2020 WL 2128867, at *4. If that axiom holds true, then requiring
courts to examine ameliorative measures in domestic violence cases is imperative to
achieving the basic purpose of the Convention – to return children to their country
of habitual residence for custody proceedings. Ms. Golan’s position would result in
-22-
increased abductions and reduced international cooperation in returning children to
countries of habitual residence, including the United States.
Ms. Golan’s arguments also deny district courts from having the discretion to
evaluate each individual family and their respective unique risks. Instead she argues
in generalizations about the nature of harm in cases of domestic violence. Rather,
this Court should look at the particular facts pertaining to this one family and to the
practical reality of Ms. Golan’s and the Child’s situation. If Ms. Golan were to
remain in the U.S., in the context of a custody case, her goals would be to have
temporary custody of B.A.S., to receive financial support, to have an order of
protection against Mr. Saada, and for Mr. Saada to have professionally supervised
visits. The Italian court has already granted her this relief. The only person who gains
an advantage if the Petition were to be denied would be Ms. Golan – she would be
rewarded for her wrongful conduct. The Child is in essentially the exact same
situation, except that he would be in New York with one parent rather than in his
habitual residence of Italy with both parents. If comity is truly at the heart of the
Convention, then the Petition should be granted given that Italy has already provided
the Child with all of the protections that would be available to him in the U.S.
This Court was concerned with Italy’s ability to enforce certain undertakings
to protect the Child. The District Court took nine months to determine with great
detail what was possible in Italy to protect B.A.S. and then issued orders to turn
-23-
those possibilities into reality. Even assuming Ms. Golan’s position that ameliorative
measures should be used sparingly, this would be precisely the situation where they
should be applied – when the District Court communicates with the country of
habitual residence, sees that its courts are taking appropriate action to protect the
subject child, and sends the child back only when it is completely confident that the
child will be protected.
The recent case before this Court, Valles Rubio v. Veintimilla Castro, 2020
WL 2311897 (2d Cir. May 11, 2020), where a return order was affirmed despite a
finding of grave risk, is instructive. In Valles Rubio, the District Court found grave
risk where there was evidence that the respondent father physically and emotionally
abused the Child and handed him a loaded guns. Valles Rubio v. Veintimilla Castro,
2019 WL 5189011, at *15 (E.D.N.Y. Oct. 15, 2019), aff'd, 2020 WL 2311897. The
District Court granted the petition because the parties were active litigants in the
Ecuadorian courts (just as the parties here are in the Italian courts) and it found that
the Ecuadorian courts could the child. Id. at *32. By the time this Court heard the
case on appeal, the parties had negotiated an agreement regarding visitation and the
eliminating child’s access to guns. Valles Rubio, 2020 WL 2311897 at *2. This Court
affirmed the District Court’s decision because the respondent “has failed to show
that these measures or the protection of the Ecuadorian courts are inadequate.” Id. at
*3.
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Ms. Golan takes the position that she and B.A.S. are in a worse position than
the respondent in Valles Rubio because she and Mr. Saada not agreed to any terms
regarding ameliorative measures. This argument should fail because B.A.S. is
afforded more protection by the enforceable Italian court already in place that than
mere agreement.3 Valles Rubio supports affirming the grant of the Petition rather
than its dismissal.
B. Ameliorative Measures are Appropriate in this Case and Are

Enforceable
The issue before the District Court on remand was one of enforceability and
guarantee of performance, rather than whether the ameliorative measures were
sufficient on their face. This Court’s opinion makes this distinction clear in stating
“we conclude that the District Court erred in granting Mr. Saada’s petition because
the most important protective measures it imposed are unenforceable and not
otherwise accompanied by sufficient guarantees of performance.” Saada II, 930 F.3d
at 537.
This Court had the opportunity to deny the Petition and chose not to
“[b]ecause the record before the District Court does not support the conclusion that
there exist no protective measures sufficient to ameliorate the grave risk of harm
3
Mr. Saada did not contest Ms. Golan’s application for an order of protection
against himself nor did he argue against any of the other undertakings that were to
be enforced by the Italian courts.
-25-
B.A.S. faces if repatriated. . . “ Id. at 542. If it had found that, regardless of
enforceability, the nature of the ameliorative measures ordered by the District Court
were insufficient to protect the Child, then a remand would have been pointless. This
Court did not take issue with the aim and purpose of the measures – to separate the
parties so that the Child would not be exposed to any further domestic violence
between them. This Court also indicated that an enforceable order of protection in
Italy would be sufficient to remedy the District Court’s error. Id. at 542.
In light of the Italian Order, which, among other things, ordered Mr. Saada to
stay away from Ms. Golan and the Child, that he undergo therapy, and that visits be
supervised, the District Court was tasked to determine if the order offered
“...sufficient guarantees of performance of protective measures that will mitigate the
grave risk of harm B.A.S. faces if repatriated.” Saada II, 930 F.3d at 542. As Italy is
clearly able to enforce its own orders, the District Court correctly decided that such
enforceability and guarantee of performance had been achieved.
The question before this Court is not whether risk can be totally eliminated,
but whether it can be reduced to the point that there will no longer be a “grave risk”
of harm. See Blondin II, 189 F.3d at 250 (identifying relevant period as period
“pending a final adjudication of custody”); see also Simcox v. Simcox, 511 F.3d 594,
607 (6th Cir. 2007) (a court should “primarily focus on the time period between
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repatriation and the determination of custody by the courts in the child's
homeland.”).
The District Court’s proposed measures ensure that Ms. Golan and the Child
will arrive in Italy with ample financial resources. The order of protection will be in
place as soon as she sets foot off the plane, she will be represented by Italian legal
counsel, and any visitation between Mr. Saada and the Child will be supervised in a
neutral environment. Further, Mr. Saada will be subject to court ordered therapy to
further reduce the likelihood of harm to the Child.
Given these conditions, the odds that the Child witnesses any negative
interactions between the parties is sufficiently reduced to ameliorate any grave risk
of harm. The District Court credited Dr. Yohananoff’s testimony that if Mr. Saada
had only supervised visitation, any risk to the Child would be close to nil. Saada I,
2019 WL 1317868 at *12. Therefore, the District Court’s ameliorative measures are
consistent with its findings and, given that they reduce any risk to the child to “nil,”
this Court should affirm its decision.
III. The Ameliorative Measures in Place are Sufficient to Protect the Child
A. Mr. Saada’s Character Does Not Preclude Repatriating B.A.S.
The main premise of Ms. Golan’s argument on this issue is that Mr. Saada is
so unreliable that it was clear error for the District Court to find that the Italian
court’s oversight is a sufficient guarantee of performance. This argument was
-27-
considered and dismissed by the District Court as unsupported by the record. Saada
III, 2020 WL 2128867 at *4. In drawing that conclusion, the District Court noted
that Mr. Saada cooperated with the 2017 Italian Social Services investigation that
was prompted by one of the Ms. Golan’s calls to the Italian police. Id. There was
no evidence that he obstructed or refused to participate with Italian Social Services.
Id.
Ms. Golan’s argument regarding Mr. Saada’s character is linked to a recitation
of the facts regarding abuse which are inconsistent with the District Court’s findings.
She references incidents of abuse – such as rape and abuse in front of police officers
– that were refuted by Mr. Saada and not credited by the District Court. Saada I,
2019 WL 1317868 at *7. The District Court did find, however, that Ms. Golan
“exaggerated at points in her testimony.” Id. at *1 and that she was “evasive” and
“feigned confusion or failure of memory when confronted with evidence that she
perceived to be unhelpful to her position.” Id. Despite her allegations of spousal
abuse, the District Court believed it was “[s]ignificant that Ms. Golan did not see
Mr. Saada as a threat to B.A.S.” Saada I, 2019 WL 1317868 at *18 n.37. Her position
that Mr. Saada is an uncontrollable abuser is completely undermined by the fact that
she was not concerned at all that Mr. Saada was a danger to the Child.
During the January 28, 2020 appearance in this action before the District
Court, Ms. Golan asked to speak with the judge directly. She recited a pre-written
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speech regarding the domestic abuse. Judge Donnelly stopped her during her speech
to advise, among other things, that she was making “factual assertions” that “conflict
with the record.” JA-615-620. This included the new allegation that Mr. Saada
“punched [her] pregnant belly” and “struck B.AS.” (JA-616-618), neither of which
she testified to during trial.
It is undisputed that there was domestic abuse in the relationship and if not for
the existence of domestic abuse, undertakings would not be an issue. However, Ms.
Golan’s allegations regarding Mr. Saada’s alleged inability to control his actions is
not reflected in reality. No order of protection existed before the Italian court issued
one in December 2019. Despite the lack of an order of protection, Ms. Golan has not
complained of a single negative interaction with Mr. Saada since this case was
initiated – nearly two years. He made multiple extended trips to New York for the
case and to visit with B.A.S., all of which were completely uneventful. The District
Court noted that “since the start of proceedings in this Court, the petitioner has
traveled to the United States for the trial and other hearings. He has abided by all
conditions of the supervised visits with B.A.S., despite the absence of any court
order.” Saada III, 2020 WL 2128867 at *2.
Ms. Golan argues that this Court should disregard his compliance with
supervision protocols with arguments unsupported by the record, such as his
purported “multiple” attempts to eliminate supervision. Notably there is no citation
-29-
for this assertion. The lack of any negative interaction for this extended period
despite there being ample opportunity for the parties to interact both in person and
electronically demonstrates conclusively that Mr. Saada does in fact have control of
his actions even in the absence of an order of protection and is not a threat to violate
it in Italy.
Ms. Golan’s position – that Mr. Saada is on his best behavior in the U.S. so it
cannot be considered a good faith example of his ability to control himself – is
illogical. She argues that he has been able to modulate his behavior for years during
these proceedings, but simultaneously has no control over his behavior and therefore
cannot be counted on to follow the order of protection in place. Ms. Golan cannot
have it both ways.
The nature of the District Court’s findings are highly relevant in assessing this
argument. It did not find that he had ever violated a court order or general disrespect
for authority. It found that the parties had an extremely toxic relationship (“The
evidence established that the parties' relationship was turbulent from its inception,
characterized by loud arguments and violence. . . ” Saada I, 2019 WL 1317868 at
*1.) The hostility that occurred when the two were together was potentially harmful
to B.A.S. Id. at *19. Therefore, separating the parties and eliminating their
opportunity to interact would ameliorate the risk to the Child. Id.
-30-
This Court did not disturb those findings. It gave the District Court the option
of ordering the parties to obtain an order of protection pre-return in Italy in order to
make that compelled separation enforceable. Saada II, 930 F.3d at 542.
The District Court distilled its findings in Saada III, 2020 WL 2128867 at *2:
“The grave risk of danger to B.A.S. is his exposure to domestic violence, almost all
of it perpetuated by the petitioner against the respondent. The order of protection put
in place by the Italian court prohibits the petitioner from going near the respondent
or B.A.S.9 (ECF No. 96-1 at 11.) This is sufficient to ameliorate the grave risk of
harm resulting from his parents’ violent relationship.”
Regarding guarantee of performance, the District Court noted the
consequences Mr. Saada will suffer if he does not comply with the Italian court’s
orders or Social Services – the potential to lose the right to see B.A.S. Id. at *4.
Moreover, Mr. Saada retained private counsel in Italy and the U.S. to prosecute this
action, which has lasted for nearly two years. Mr. Saada has borne the expense of a
trial and two appeals, and substantial costs including experts and travel expenses.
He also chose not to appeal the $150,000 financial award to Ms. Golan.4
4
This award is five times what the District Court initially ordered. Although
Mr. Saada believes that such an amount is excessive and that rather than give such
a large sum directly to Ms. Golan with no oversight, it should be held in escrow by
a third party for Ms. Golan’s use for her and the Child’s reasonable expenses, he
has chosen not to appeal this issue so that the focus can remain on B.A.S.’s safe
and timely return to Italy.
-31-
The implication of Ms. Golan’s argument suggests that Mr. Saada, who has
taken every appropriate and legal step towards having his son returned to Italy, will
throw it all away by violating the Italian court orders despite the catastrophic
ramifications laid out in the Italian Order and the contrary findings of the District
Court.
In the unlikely event that Mr. Saada violates any of the Italian court’s orders,
he would be held accountable for his actions, he would suffer severe consequences,
and he would waste all of the time and money spent working to get his child back
home. Further, the District Court – after nine months of extensive examination –
found that Italy completely capable of protecting the Child. Saada III, 2020 WL
2128867 at *3. Comity should draw this Court to the conclusion that, given the
extensive attention that the Italian court has already focused on these parties and the
Child, it will protect B.A.S. just as any U.S. court would.
B. The Italian Court Proceedings Make This Case is Readily

Distinguishable
The facts in this case are novel and make this case readily distinguishable
from other cases involving undertakings. The country of habitual residence, Italy,
has already enacted a substantive order in the parties’ custody case which
specifically considered the ameliorative measures ordered by the District Court.
Saada III, 2020 WL 2128867 at *3. Therefore, the common concern regarding the
possible enforceability of undertakings in foreign countries present in other cases is
-32-
not applicable here. The situation in the country of habitual residence is now a known
element, erasing any need to speculate as to potential orders that may be issued or
consequences in the event of noncompliance.
The concerns raised by cases cited by Ms. Golan regarding enforceability have
now all been rendered moot or are otherwise unpersuasive in light of the Italian
Order and other steps taken by Mr. Saada in following the District Court’s directives.
Therefore, Saada v. Golan is readily distinguishable from each case Ms. Golan cites
in support of her position.
In Davies v. Davies, 717 F. App'x 43, 49 (2d Cir. 2017), the district court
rejected the proposed ameliorative measures because it found that Petitioner “would
not abide by a stay away agreement”, Respondent would be unable “to hide or avoid”
Petitioner on a small island such as St. Martin, the legal system in St. Martin was
“inadequate to protect [respondent] and [the child] from [Petitioner]’s abuse”, and
the “[child] would be severely traumatized if he were returned to St. Martin…
regardless of whether he resided with [petitioner] full-time, part-tie, or not at all.”
Davies v. Davies, 2017 WL 361556, at *20–21 (S.D.N.Y. Jan. 25, 2017), aff'd, 717
F. App'x 43 (2d Cir. 2017). The district court found that “[t]here are no measures
that could mitigate that trauma, other than permitting [the child] to remain in the
United States.” Id. This Court did not draw a similar conclusion in Saada II, instead
remanding and giving the District Court the option to reassess risk once an order of
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protection is obtained in the habitual residence. Italy is also obviously not
comparable to an extremely small island with limited judicial and law enforcement
resources.
Mohacsi v. Rippa, 346 F. Supp. 3d 295, 323 (E.D.N.Y. 2018) aff’d sub nom
In re Matter of NIR, 797 F. App’x 23 (2d Cir. 2019) (summary order) is
distinguishable because there the district court found that Hungarian law did not
provide sufficient protection to mitigate against grave risk since the mother made
multiple reports to the police about the father but was unable to get a protective
order. The father also had a history of being arrested for resisting authority. In the
instant action, there is already a protective order in place and the Italian police have
always been responsive to Ms. Golan.
Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013) is distinguishable because of
the father’s extremely violent behavior. There was an incident where the father
careened his car into a pole in front of the mother’s house, kicked her door down,
stabbed someone with a kitchen knife, beat the mother, and threatened another man
to the point where he begged for his life. Acosta v. Acosta, 2012 WL 2178982 at *5
(D.Minn. 2012). He was also arrested and pled guilty to making terroristic threats.
Id. The Eighth Circuit affirmed that undertakings were not appropriate in part
because an expert testified that there was a high risk that the father would kill the
children in the future. Acosta, 725 F.3d at 876. The petitioner in Acosta was literally
-34-
homicidal. The findings in the instant action were far less severe and never indicated
that Mr. Saada posed a direct danger to B.A.S.
Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) is a case where the father had a
history of non-compliance with orders of protection. After a criminal complaint was
filed against for attempting to break and enter and threatening to kill another person,
he absconded to Ireland. Id. at 209. He also violated an Irish order of protection
multiple times. Id. at 211. When the case came before the First Circuit, the father
was a fugitive. Id. at 215. He had a “chronic disobedience of court orders.” Id. at
219. In the instant action, Mr. Saada has no history of violating court orders and the
District Court did not find that he was likely to disobey an order.
In Baran v. Beaty, 479 F. Supp. 2d 1257, 1273 (S.D. Ala. 2007), aff'd, 526
F.3d 1340 (11th Cir. 2008), the Eleventh Circuit expressed concern that the district
court conditioned the return on “well-meaning conditions that may or may not be
enforced or enforceable by an Australian court.” Here, there is no question that the
conditions imposed by this Court are enforceable by the Italian court – the orders are
already in place in Italy.
Achakzad v. Zemaryalai, 2010 ONCJ 318 (Canada) involved a father who
pointed a loaded shotgun at the mother and child, which makes it automatically
distinguishable. Id. at 32. He also breached bail orders in California and Ontario and
a restraining order issued in Ontario. Id. at 40. Pointing a loaded gun at the subject
-35-
child and violating multiple court orders in two different countries are a substantially
different set of facts than those present in the instant action.
Simcox, 511 F.3d 594 is also distinguishable because there were no custody
orders or order of protection in place in Mexico when the District Court decided the
case on remand and there was a possibility that the mother would be criminally
prosecuted returned. Simcox v. Simcox, 07-CV-00096, ECF No. 80 (N.D. Ohio).
The mother took the position on remand that she would not return to Mexico with
the children because she was afraid of facing criminal charges. The District Court
ultimately denied the petition because: “The Court will not order the Simcox
children returned to Mexico without their mother, in light of the Sixth Circuit's
finding that Mr. Simcox poses a grave risk of harm to the children. There are no
undertakings proposed by Mr. Simcox or envisioned by the Court which would
adequately protect the children and further the purposes of the Convention as
clarified by the Sixth Circuit.” In the instant action, Ms. Golan is returning to Italy
with custody of B.A.S. and there is no possibility of criminal charges against her
because they have been dismissed.
Finally, Ostevoll v. Ostevoll, 2000 WL 1611123 (S.D. Ohio Aug. 16, 2000),
adopted No. C-1-99-961 ECF No. 41 (Order) involved a father that physically and
emotionally abused the children. Id. at *16. There was also expert testimony that
returning the children to Norway would essentially retrigger their PTSD. Id at *17.
-36-
Under those circumstances, the Court found that no undertakings could prevent the
psychological harm to the children caused by the act of their return. In the instant
case, Mr. Saada never abused B.A.S. and there was no evidence that returning to
Italy would cause him psychological harm.
Ms. Golan’s other points regarding Mr. Saada’s conduct are mischaracterized.
The issue of translations addressed by the District Court and it ultimately decided
that it was unnecessary to translate the entire record into Italian. Saada III, 2020
WL 2128867 at *3, n.6. It was also addressed by Judge Messite in his initial letter
to the Italian Network Judges (JA-500). Judge Vinciguerra responded by stating that
translations would be provided to the Italian judge by the Italian Central Authority.
(JA-502). This was not a failure on Mr. Saada’s part to comply with a court directive
– the Court itself stated it was not required.
Likewise, Mr. Saada’s attendance at therapy was addressed by the District
Court on remand. The Italian Order directed Mr. Saada to have Social Services
oversee this therapy. In this context, the District Court stated issues related to therapy
“. . . would be a matter for a court in Italy to determine whether he is complaint with
it because once again, the ameliorative measures that I am required to impose are
the ones that are designed to ensure the safe return. JA-596; Tr:17:16-21. The
District Court acknowledged that Mr. Saada “sought and obtained treatment” and
that the Italian Order “provides sufficient guarantee that [Mr. Saada] will undergo
-37-
appropriate treatment, and the B.A.S. will be safe in Italy. Saada III, WL 2128867
at *3.
IV. The District Court Properly Weighed Ms. Golan’s and B.A.S.’s Safety
The District Properly analyzed the risk of harm to B.A.S. and Ms. Golan and
balanced their safety against comity concerns in crafting its decision.
While Ms. Golan’s safety is a concern to be considered, B.A.S.’s safety is
paramount. See Davies, 717 F. App’x at 48 (The grave risk “inquiry is not whether
repatriation would place the respondent parent’s safety at grave risk, but whether so
doing would subject the child to a grave risk of physical or psychological harm.”).
Further, “a respondent should not be rewarded for declining to ameliorate the risk”
to her child, Valles Rubio, 2019 WL 5189011, at *31, and harm that is “a
consequence of choices made by [the] respondent” should not affect the Court’s
repatriation decision. In re Koc, 181 F. Supp. 2d 136, 156 (E.D.N.Y. 2001), report
and recommendation adopted (Apr. 3, 2001).
Ms. Golan argues that the District Court overlooked her purported
vulnerability in Italy. The District Court found, however, that Ms. Golan’s concerns
in this regard were “overblown.” Saada III, 2020 WL 2128867 at *5. The District
Court noted that Ms. Golan, “with the assistance of an attorney, has navigated the
Italian legal system for the past two years. While she lived in Italy, she ran errands,
-38-
went out with friends, traveled independently, and regularly sought assistance from
the Italian police and Social Services.” Id.
Ms. Golan is a more sophisticated actor than she presents. In her submissions
to the District Court on remand, it became clear that she secured pro bono counsel
in Italy as early as August 2018 (id. at *3, n. 5). She was able to secure one of the
largest law firms in the country to represent her in this action pro bono as well. With
the help of her Italian lawyer, she secured an order of protection and custody of
B.A.S. She called the police on Mr. Saada in April 2017, and she testified that she
only wanted the police to warn him rather than arrest him. JA-152; Tr. 301:25-302:3.
She also called the police on his father for taking B.A.S. from their apartment into
his apartment two floors up. JA-144; Tr. 268:7-269:24. Her purported language
barrier and alleged vulnerability did not prevent her from successfully calling the
police in Italy on two separate occasions for non-emergency situations. Notably, the
District Court found that the Italian police responded appropriately when called by
Ms. Golan to the parties’ residence following a dispute – meaning that she was able
to effectively obtain police assistance. Saada I, 2019 WL 1317868, at *19, n. 39.
The fact that she is not an Italian citizen has been addressed by the District
Court – which stated “the tools for obtaining legal status and a work permit are in
[Ms. Golan’s] hands. At the Court’s direction, the respondent has already contacted
the Italian Embassy in the United States about her move to Italy.” Saada III, 2020
-39-
WL 2128867 at *5, n.12. Her legal status was a topic of the communications between
the District Court and the Italian Network Judges (JA-506 – JA-509), so the District
Court obviously considered the potential problem was satisfied that it should not
defeat the Petition.
The issue of Mr. Saada’s alleged refusal to grant Ms. Golan a “get” (religious
divorce) is not a proper subject for this Court to consider because, as the District
Court noted it “is not a factor that affects B.A.S.’s well-being.” Saada III, 2020 WL
2128867 at *4, n.10.
As far as Ms. Golan’s potential for retraumatization, notwithstanding the fact
that any potential traumatization upon return for Ms. Golan is not grounds to deny a
petition, the argument that she will be retraumatized by returning to Italy is also the
speculation of counsel. General testimony regarding traumatization is not evidence
that Ms. Golan will suffer any ill effects by the act of simply returning to Italy. The
District Court mitigated the risk of harm to her by ensuring that she is financially
independent and has an order of protection in place when she lands. The District
Court therefore did assess risks to Ms. Golan and acted accordingly.
Ms. Golan’s argument regarding B.A.S.’s potential retraumatization in Italy
is purely speculative and not based on the record. The Child will remain in Ms.
Golan’s custody after repatriation and she and the Child will be living apart from
Mr. Saada.
-40-
In the several cases in this Circuit where courts found no ameliorative measure
suitable, the grave risk was due to the triggering of a child’s PTSD or other
psychological harm by the act of repatriation itself. See, e.g. Blondin III, 78 F. Supp.
2d at 297; Reyes Olguin, 2005 WL 67094, at *11; In re D.T.J., 956 F. Supp. 2d at
548 (finding no ameliorative measures existed where “the return to Hungary itself
and proximity to [petitioner] himself present a grave psychological risk to [child]”).
Here, the Child was not diagnosed with PTSD, the Child and Mr. Saada share
a warm and loving relationship (Saada I, 2019 WL 1317868, at *11 (“Ms.
Hessemann testified that B.A.S. and Mr. Saada seemed happy together, that their
relationship appeared to be loving, and that B.A.S. did not seem to be at all afraid of
Mr. Saada”)), and the Italian Order demonstrated conclusively that Italy is willing
and able to protect the Child. Given these facts, applicable case law does not support
Ms. Golan’s position.
B.A.S. was not diagnosed with PTSD and there is no evidence that B.A.S. has
ever exhibited a negative reaction to Mr. Saada’s presence. There have been
numerous visits between Mr. Saada and the Child before, during, and after the trial
and Ms. Golan has never once reported any issues with those visits. It is complete
speculation that B.A.S. will suffer any ill effects at all from returning to Italy, much
less the crippling effects of PTSD that have led courts to deny petitions. The
argument advanced by Ms. Golan is one that deals in generalities rather than
-41-
adducing evidence from this specific record. There is no evidence that Mr. Saada
poses a direct threat to the Child and social science literature drawing correlations
between domestic violence and child abuse cannot on their own establish grave risk.
CONCLUSION
The District Court’s findings and orders were predicated upon the need to
balance the dual goals of the Hague Convention, to protect children while giving
deference to the courts in the country of habitual residence. The District Court
deliberately gathered relevant information, ordered the parties to take steps to ensure
the Child’s safe return, and only ordered the return when fully satisfied that the Child
would be safe. The Court even took measures to ensure Ms. Golan would be safe
and secure, even though it was not required to do so.
Ms. Golan wrongfully abducted B.A.S. in the midst of a domestic dispute in
order to find a more favorable venue to prosecute a custody case. The sort of scenario
now before this Court is the precise reason why the Hague Convention exists.
Abducting and wrongfully retaining a child in the United States is not the appropriate
means to obtain custody.
For the foregoing reasons, Therefore, this Court should affirm the District
Court’s May 5, 20202 Memorandum Decision and Order and determine that
returning the Child to Italy is appropriate given the undertakings ordered by the
Court.
-42-
Respectfully submitted,
/s/ Richard Min

Richard Min
BURGER GREEN & MIN, LLP
New York, NY 10170
(212) 681-6400
Counsel for Petitioner-Appellee
-43-
CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS,
AND TYPE-STYLE REQUIREMENT
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B)(iii) because this brief contains 10, 155 words, excluding those parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using MS Word 2016
in Times New Roman 14-point font.
This the 3 day of June, 2020.
/s/ Richard Min

Richard Min
BURGER GREEN & MIN LLC
New York, NY 10170
(212) 681-6400
Counsel for Petitioner-Appellee
-44-

Dkt. No. 40 - Brief For Petitioner-Appellee

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Case 20-1544, Document 40, 06/03/2020, 2853734, Page1 of 50

United States Court of Appeals

NARKIS ALIZA GOLAN,

On Appeal from the United States District Court

BRIEF FOR PETITIONER-APPELLEE

TABLE OF AUTHORITIES ................................................................................... iii

PRELIMINARY STATEMENT ............................................................................... 1

STATEMENT OF THE ISSUE ................................................................................. 3

STATEMENT OF THE CASE .................................................................................. 4

I. Factual Background .................................................................................... 4

II. The Grave Risk Finding ............................................................................. 5

III. The Undertakings Ordered by the District Court ....................................... 6

IV. The Second Circuit’s July 19, 2019 Opinion ............................................. 7

V. The Case on Remand .................................................................................. 9

VI. The Second Return Order ......................................................................... 13

SUMMARY OF ARGUMENT ............................................................................... 16

STANDARD OF REVIEW ..................................................................................... 17

I. General Goals of the Hague Convention .................................................. 17

II. Undertakings Are A Crucial Component to the Hague

A. Ameliorative Measures Further the Goals of the Hague

B. Ameliorative Measures are Appropriate in this Case

III. The Ameliorative Measures in Place are Sufficient to Protect

A. Mr. Saada’s Character Does Not Preclude Repatriating

B. The Italian Court Proceedings Make This Case is

IV. The District Court Properly Weighed Ms. Golan’s and

CERTIFICATE OF COMPLIANCE ....................................................................... 44

Blondin v. Dubois (Blondin III),

Blondin v. Dubois (Blondin IV),

Blondin v Blondin (Blondin II),

Saada v. Golan, 18-CV-5292, (AMD),

Valles Rubio v. Veintimilla Castro,

Van De Sande v. Van De Sande,

This brief is submitted by Petitioner-Appellee Jacky Saada in opposition to

Respondent-Appellant Narkis Golan’s appeal of the District Court’s decision after

pursuant to the Hague Convention on the Civil Aspects of International Child

Abduction, as implemented by the International Child Abduction Remedies Act

(“ICARA”), 22 U.S.C. §§ 9001-9011. Mr. Saada, an Italian citizen, alleged that in

son, B.A.S., in the United States.

repatriation due to the possibility of witnessing domestic violence between the

“enforce[d] by the District Court or supported by other sufficient guarantees of

performance.” Id. at 543.

On May 5, 2020, the District Court again ordered B.A.S. to be returned to

visitation, extensive court and Social Services oversight, and financial

continue as the Hague Convention intended.

STATEMENT OF THE ISSUE

1. Whether the District Court correctly found that the proposed

ameliorative measures in place are sufficient to ensure B.A.S.’s safety upon

repatriation and are either enforceable or supported by other guarantees of

the Child’s safe return.

STATEMENT OF THE CASE

in an ongoing custody dispute. Saada III, 2020 WL 2128867 at *3.

II. The Grave Risk Finding1

WL 1317868 at *18, n.37.

he received parental coaching and psychoeducational training. Id.

III. The Undertakings Ordered by the District Court

to the following undertakings/ameliorative measures:

housing accommodations without restriction on location in Italy, financial support,

and legal fees;

relating to her abduction of B.A.S.;

(4) Mr. Saada to begin cognitive behavioral therapy in Italy;

Hague Convention and ICARA for the prosecution of this action;

Court to the Italian court presiding over the custody proceeding;

actions against her in Italy based on the abduction.