“God help us if [the Supreme Court justices] conclude that [the Hague Convention] did require that an 18-month old baby be ripped from her mother, her only caregiver, and sent to a country and parent she did not know, who the district court FOUND had been abusive to her mother.”
“Over the last 15 years at DV LEAP, and the many more years I have been in this work, we have observed biases in [family] courts that are specific to women; patterns that contribute to ongoing unjust court rulings.”
Joan Meier, JD, founder of DV Leap
An American woman fled home from Italy four years ago with her newborn baby to escape domestic violence by the baby’s biological Italian father. The descriptor “biological” is used because a man who commits violence on a child’s mother should not be considered a real father.
The father initiated a Hague Convention case, in which it was ruled that she had to return her then 18-month-old baby to the father in Italy. Mom has had only occasional short visits with her daughter, now 4, in Italy since then.
The mother filed in a U.S. district court, claiming the Hague ruling was in error due to the domestic violence (grave harm) exception. The district court made a finding that the father had committed domestic violence. The U.S. Supreme Court accepted the case and it was argued last month by pro bono attorneys (pictured) from DV Leap and the California based firm Gibson, Dunn, and Crutcher.
Since the Hague Convention stated priority is to protect the interests and safety of the children, and there is a “grave risk” exception, the Supreme Court ruling will reflect the fundamental question of whether a father who is violent with a mother represents a “grave” risk to their child(ren).
The Supreme Court justices appeared to be “all over the place” on this case, so the attorneys believe it may be a while before a ruling is issued. The Coalition will follow up on this important case, so watch this page.
Note that even if there is a positive ruling in this case, the core problem of family court judges making false findings to justify giving custody to controlling and abusive fathers remains.
MORE INFO on the Hague and DV:
The Hague Convention was implemented to ensure that the “rights of custody … under the law of one Contracting State are effectively respected in the other Contracting States.”
The overarching objectives of the Convention are to discourage international child abduction and to ensure the “swift return to the status quo prior to the abduction of a child.” More importantly, the Convention was instituted “to protect the interests and safety of the child.”
The Convention sets forth several defenses that the abductor may plead to prevent the return of the child. These exceptions include…article 13(b), where the child would be exposed to “physical or psychological harm or otherwise place the child in an intolerable situation” (i.e., the grave risk exception]. As a result, there is a tension between “discouraging child abduction and protecting victims of domestic violence.”
The term “domestic violence” is not mentioned in the Convention, and Convention courts have struggled with determining whether fear of future domestic violence should encompass a grave risk.
Domestic violence against the abductor and/or child should be an explicit or implicit exception to a parent’s Convention petition because of impact the abuse has on the abductor and the child, even if the child is not physically present to witness the abuse.
...[C]urrent trend indicates that mothers have become the abductors in an attempt to return to their home countries with their children after living abroad in an abusive marriage. Mothers have resorted to fleeing their husbands’ home countries because they have found that these countries provide little, if any, assistance to address domestic violence incidents. Abusive fathers, playing the part of the left behind parent, use the Convention’s dictates “as part of their coercive control” to have their children returned to their country. In turn, mothers face the difficult choice of returning to the home with the children or allowing the children to return alone with the historically abusive father.
… [G]rave risk defenses are fact-intensive and require the appropriate evidence, which often includes direct evidence showing that “the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation.” Legal scholars have noted that children’s exposure to their mother’s victimization to domestic violence does not typically give rise to a successful grave risk defense…
…Courts should ensure that the child will be safeguarded from further violence and will not be adversely impacted emotionally. This determination can be made without conducting a best interests of the child custody analysis, which is to be conducted in a separate family court proceeding. Otherwise, “[m]aking the abuse of the victimized parent irrelevant to an Article 13(b) defense often deprives the victim of the only defense available to her, making the victim feel powerless to protect herself and her children.” Additionally, the abusive father may continue to maintain control over the domestic violence victim by using the children as pawns with years of protracted custody litigation.
… The child’s interests and safety cannot be protected when the child is ordered back to his original country of residence, where signs of past domestic violence against the parent and/or child were likely present. Therefore, evidence of physical or emotional domestic violence against a parent or child should constitute an exception under the Convention’s grave risk exception.
ISSUES IN FAMILY LAW: DOMESTIC VIOLENCE AND THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION by Michael Moran
The Supreme Court ruling in this case should be that since the father has committed domestic violence, it is automatically an exception to the Convention and the child must be returned to her mother; and the father shall be restricted to supervised visits at the discretion of the protective mother.
It is the Coalition’s position that any father who commits domestic violence on the mother or the child poses an unacceptable risk to the child. To allow Hague judges to decide whether or not the risk is “grave” simply makes it an extension of the Family Court system where judges have the power to minimize risk. With the long history of the Hague siding with fathers, it is obvious that the Hague Court is, in effect, working to entitle and empower fathers, just like Family Court.
It would be momentous if the Supreme Court would make the broader assertion that domestic violence terminates the right to legal custody and unsupervised visitation. But don’t hold your breath. Join The Women’s Coalition and help battle for our children’s well-being and safety after separation or divorce.
If you would like to join a local group, please send your county, state and country to: email@example.com
[Pictured: Joan Meier and BryanWalsh (left); DV Leap attorneys (right)]
Cindy Dumas, M.A. has been researching, writing, and raising awareness about the Custody Crisis since 2003, when she was unable to protect her children from their abusive father. She fled into hiding when Family Court failed her and was tricked into returning home, when her children were given to their abusive father.