While Mr. Saada and Ms. Golan await word from the U.S. Supreme Court as to Ms. Golan’s request for a writ of certiorari, the Second Circuit rendered yet another opinion on October 18, 2021. In its opinion, it again affirmed Judge Donnelly’s order out of the EDNY, returning the parties’ minor child to Italy. You can read more about the pending petition for writ of certiorari here.
As a quick reminder of the factual and procedural history: Ms. Golan and the parties’ child traveled to New York from Italy in July 2018 for a family wedding. She was scheduled to return to Italy the following month, but decided to stay in New York. She moved to a confidential domestic violence shelter. After a 9-day trial on Mr. Saada’s request to return the child under the Hague Abduction Convention, the court concluded that despite the grave risk of psychological harm to the child from his exposure to domestic violence perpetrated by Mr. Saada against Ms. Golan, there were measures that could be put in place to nonetheless safely return the child. The measures, or “undertakings,” included Mr. Saada’s promise to stay away from Ms. Golan after she returned the child to Italy, and his agreement to only visit the child with her consent. Ms. Golan appealed, and the Second Circuit remanded because the most important measures were unenforceable and there was no guarantee Mr. Saada would perform them. Subsequent to the return order, the parties sought and were granted an Italian court order. It required Mr. Saada to stay away from Ms. Golan, restricted his access to the child, and ordered psychological evaluations and counseling. On remand, Judge Donnelly again ordered the child returned, in light of the new Italian court order. She also ordered Mr. Saada to pay Ms. Golan $150,000 to cover her cost of returning to Italy with the child. The Second Circuit was asked to again review this second return order, and it affirmed.
On January 25, 2021, Ms. Golan requested a Rule 60(b) motion, arguing that she had newly discovered evidence in the form of a transcript of a phone call Mr. Saada had with his father and a rabbi, to which she was surreptitiously listening. The transcript reflected that Mr. Saada told the rabbi he did not trust Ms. Golan as a mother and that he had evidence of Ms. Golan with different men. Ms. Golan argued that this demonstrated that Mr. Saada violated a court order, and would violate orders in the future, therefore the Italian order is no protection. Mr. Saada’s lawyers acknowledged that they had hired a private investigator to ensure the child’s safety. The investigator had not disclosed Ms. Golan’s address to Mr. Saada. The court denied Ms. Golan’s Rule 60(b) motion. She appealed. The October 18, 2021 Second Circuit opinion addresses that appeal.
Rule 60(b) relief is generally not favored and is granted only upon a showing of exceptional circumstances. The burden rests on Ms. Golan that the newly discovered evidence did not exist at the time of trial, or that she had justification for not knowing despite acting diligently. The evidence is of such importance that it would probably have changed the outcome and is not merely cumulative or impeaching. The District Court concluded that if it had known of the limited investigation into Ms. Golan by Mr. Saada’s lawyers prior to granting his petition to return the child, it would not have changed the outcome. This alone was sufficient grounds to deny Ms. Golan’s petition. There is no material dispute of fact.