Case Update (9 Feb 2024): Delgado v. Marquez; Court gave Petitioner opportunity to propose ameliorative measures, but concluded that the proposed measures were insufficient
The parties are parents to 1 child, born in Mexico in May 2018. The Respondent Mother wrongfully removed the child to California in or around April 21, 2022. The child’s Petitioner Father filed his request to have the child returned pursuant to the Hague Abduction Convention on October 6, 2023, some 18 months later. The parties stipulated to the Petitioner Father’s case-in-chief. The Respondent Mother successfully argued both that the child is now settled in California, and that returning the child would expose the child to a grave risk of harm due to purported domestic violence against the Mother, in the presence of the child.
The interesting point to draw out in this blog post is the application of Golan v. Saada in this case. As the reader knows, Golan v. Saada was resolved by the U.S. Supreme Court in 2022, and indicated that courts could, but were not required to, examine ameliorative measures to safely return children despite proof of a grave risk of harm. The Supreme Court said that a trial judge should consider ameliorative measures if they were obviously suggested by the facts of the case, or if a party raised ameliorative measures.
In this particular case, the district court judge invited the Petitioner Father to propose ameliorative measures. The Father then proposed a prompt return of the child to Mexico and for the parties to submit their dispute to the Mexican family court. The Court concluded that this proposal did not address the court’s concern “that there is a grave risk that [the child] will be exposed to psychological harm if returned to Mexico.”
Since the Golan v. Saada opinion in 2022, the general practice of Petitioners’ Counsel has been, upon Respondent raising a grave risk of harm in their responsive pleading, to amend their Petition for Return and propose ameliorative measures. By a review of the cases, when a Petitioner raises ameliorative measures, the court has tended to examine them, but has not always concluded that the ameliorative measures actually ameliorate the harm. Some courts, much like the district court here, have actually examined ameliorative measures without any being proposed, but have generally done so to reach the conclusion that no ameliorative measures would be appropriate in the circumstances. It does not appear that examining ameliorative measures have created additional delay in cases, any more than the examination of the grave risk of harm itself.
Therefore, in this case, the Court denied the Petitioner’s request to return the child to Mexico.
