The case of Saada v. Golan continues with further litigation. This was the matter brought forth before the U.S. Supreme Court in 2022. After a remand by the Supreme Court, the Eastern District of NY again ordered the minor child returned to Italy. Pending appeal, the Respondent Mother, unexpectedly passed away. Two days later, the Mother’s sister (the child’s aunt) filed an ex parte petition in the local NY family court seeking custody of the child. The Family Court, aware of the Hague proceeding and existing Italian court orders, did not contact Italian courts as required by the UCCJEA, and instead granted temporary custody to the aunt, issued a protective order against the petitioner Father, and appointed a lawyer to represent the child in the family proceedings. On November 10, 2022, the Second Circuit dismissed the mother’s appeal as moot, vacated the return order, remanded the father’s petition for return for the EDNY to expeditiously address the matter given the changed circumstances, and instructed the EDNY to address any motions to intervene, which ultimately followed. While both aunt and the child’s lawyer filed to intervene, the father moved to substitute the aunt as respondent or to amend the petition to add her as respondent. Separately, the father moved to vacate the family court’s orders and transfer the child to the father’s care during the Hague Convention proceedings.
The Magistrate reviewing the file recommended that the court deny the motions for substitution and intervention, but grant the father’s motion to amend the petition to add the aunt as respondent. He also recommended vacating the family court orders, and to refer the father’s temporary custody request to the Italian courts. All parties (and potential parties) objected to the recommendation. On February 13, 2023, the EDNY ordered as follows:
The EDNY reserved judgment on the vacatur of the NY family court orders pending a conference with the petitioner and aunt, at a date TBD.
The EDNY granted the father’s request to amend his original petition to add the aunt as a respondent, and deny the aunt’s motion to intervene as she did not meet the legal requirements for permissive intervention or intervention as of right. Further, by amending the original petition, the aunt’s motion to intervene is moot.
The EDNY denied the Children’s Law Center’s motion to intervene (or alternatively, be appointed) on behalf of the child as untimely, duplicative of the aunt’s participation who can adequately represent the child’s interests, and prejudicial to the father because it would cause further delay and would not develop the underlying factual interests fully. The aunt’s and child’s interests only diverge in the event the child is returned to Italy, where the child is already represented by counsel.