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Mothers & Children Seeking Safety in the US: A Study of International Child Abduction Cases Involving Domestic Violence

Speakers
Dr. Jeffrey Edleson, University of Minnesota, Ms. Sudha Shetty, University of Minnesota, Dr. Taryn Lindhorst, University of Washington

Since the implementation of the Hague Convention on the Civil Aspects of International Child Abduction, thousands of abused women have faced complex litigation after seeking safety in the United States. Many have been court ordered to return their to the country from which they fled and often to their abusive partners custody. The presenters discussed the findings of an NIJ-funded study focusing on the experiences of women who as victims of domestic violence in another country, come to the U.S. in an effort to protect themselves and their children, and then face international child abduction procedures under the Hague Convention.

Dr. John Laub: Just want to say good morning and welcome to today's seminar in NIJ's Research for the Real World seminar series. My name is John Laub, and I'm the director of the National Institute of Justice, and I am delighted to see so many of you here today. I'm also delighted to be here. This is my first Research for the Real World seminar series. When I got notices when I was waiting to be confirmed by the U.S. Senate I said, “Oh, I'd like to attend,” and I was told “Don't! You are in limbo; you cannot be seen in the NIJ building for fear a senator will think you're the director of NIJ.” So it's nice for me to be here finally, because it had a mystery to it that I had been curious about.

As all of you know October is Domestic Violence Awareness Month and in commemoration of this important month we thought it fitting to hold a seminar on the topic of domestic violence.

The title of today's presentation is “Mothers and children seeking safety in the U.S.: A study of international child abduction cases involving domestic violence.” And we are pleased to have three dynamic speakers here today who will be presenting the findings of a recently funded NIJ study on the implications of The Hague Convention on the civil aspects of international child abduction. This study focuses on the experiences of women who are victims of domestic violence seeking safety in the United States only to have their children ordered returned to the country from which they fled — often to their abusive partner's custody. The presenters will highlight the complex legal and safety issues facing these women and discuss the legal, social and policy implications of these cases.

Now it's my pleasure to introduce the three speakers and I'm going to introduce them in the order in which they're going to present.

First, Ms. Sudha Shetty, Esq., is director of the international fellowship program at the University of Minnesota, Hubert H. Humphrey Institute of Public Affairs and a lecturer in the institute's master's of public policy program. She lectures and writes extensively on domestic violence issues facing immigrant women and women of color.

Second, Dr. Jeffrey Edleson is a professor in the University of Minnesota School of Social Work and the director of the Minnesota Center Against Violence and Abuse. He is one of the world's leading authorities on children exposed to domestic violence and has published more than 100 articles and 10 books on domestic violence, group work and program evaluation.

Third, Dr. Taryn Lindhorst is an associate professor of social work at the University of Washington. Her research focuses on violence against women, health and policy implementation. Dr. Lindhorst is also involved in projects looking at the long-term impact of domestic violence on women's mental health, relationship violence amongst minority youth and policy issues related to violence against women.

Please join me in welcoming our three speakers.

[Applause]

Sudha Shetty: Good morning everybody. It's very nice to be here. It was wonderful to get off the taxi and see everybody wearing short skirts and tank tops. It's lovely and warm — I'm dreading Minnesota's winter. I moved from Seattle to Minnesota and I count every year by the winters that pass because it is so miserably cold down there.

This topic is very important to me … I do a lot of work with battered immigrant mothers and especially women of color with children in the courts because when these mothers face domestic violence issues not only do we have … we've created structures where we ask the mother to leave and go to a shelter — so she leaves something that she knows, she's comfortable with, leaves her home, lives in a shelter with her children — but she also has to face our court systems, and our court systems are not very easy. We all know, we all sit here — we're extremely privileged, educated. We all know how to read and write and be extremely articulate, but when we get hit by a court document many of us panic, right?

Then we go try to find a lawyer. Why? If we can all read, be extremely articulate, we are smart, we can manage in our own spheres, why do we need somebody else to assist us with those things? That's because we don't understand the language that the courts require. And so if we can feel that, can you imagine what a battered mother goes through? And when she has children, it's even more difficult for her because she has many things she has to think about. And custody becomes a huge issue; property settlement becomes a huge issue, so that's what I work with.

I started working on this because I got a case that came to me and this mother had fled from Germany, and she was a doctor — very articulate, smart, smart woman. And this case came to me because Professor Edleson was in Minnesota and she wrote to him because she needed an expert on child witnessing domestic violence and he was an authority. So he told her, “Speak to Sudha, she's in Seattle, maybe she can help you.” And when she came to me she talked to me about The Hague Convention and I was like, “What is that?” And here I was, I knew almost everything that was happening around battered mothers and couldn't understand what this treaty was all about — had not a clue, never heard it, did not know what it was all about — and there it was staring us in the face.

And what it said was she had to return the children immediately back and I said, “But you fled for protection,” and she said, “Yes.” She was being severely beaten. She had gone to the police, the police told her it was a family matter, sent her back. And here she was, she fled for the protection of her family and this happened to her. And suddenly it was like, “Oh my God. What is this all about?” And that's how this whole project started.

So today, we have now arrived … at that time I was a professor at Seattle University School of Law. I was also director of the Access to Justice Institute — I worked with communities of color around legal access. Then this became a huge passion suddenly because here were mothers who were fleeing for protection and had no way of figuring out what to do and how to work the system in order to help them keep their children. And so I got involved, created a huge project at Seattle University School of Law.

So today, what we're going to speak … the three of us are going, sort of, have different areas that we have worked on. My whole area is advocacy and legal access. Dr. Edleson and Dr. Lindhorst have done research on this because one thing I naively thought is, “Oh. If this is a problem I can change the treaty.” And then I found out that of course I can change the treaty, because there are 82 countries that have signed on to it, right? That's what we are supposed to do. If we find an issue, we try and figure out how can we change it, right? That's what all of us need to be doing. And that's when I found out that, no, I cannot do that. And so then if I cannot do, change the treaty, then what is it that we can do? And what we can do is look at within the U.S. and how we can work for the women here who fled into the U.S. What can we do to help them?

So I'll sort of give a brief overview of The Hague Convention as I found out what it's all about and then Dr. Lindhorst and Dr. Edleson will sort of give you the different pieces and findings in this recent study that we did with NI

J.

So what I found out is … how many of you are lawyers here? Just a few. How many of you work with domestic violence? How many of you work on international child abduction? Ok. So there is different groups of people here, so there are some that are very … know a lot about international child abduction and a lot about domestic violence, so that's where there meeting is. So this particular project is sort of the melding of the both — international child abduction and domestic violence.

So when I started to do research on what this was all about, what I found out was that it is a multi-lateral treaty between 82 countries that are signed on to this international treaty. This treaty to me is actually a very good idea because we needed protocols between countries to return children that were being abducted across countries, across borders, right? That makes complete sense; we have to have that in place.

Then, what we did not look at, was the unintended consequences of this treaty that children could be abducted for protection purposes of a mother who was being battered, at the same time and the children were witnessing that violence.

What I also found out was that it was civil procedures and not criminal, but it was really to protect the children from the harmful effects of abduction and the procedure was created to do the prompt return of the child, and this is where, to me, was the issue. That it had to be done immediately and how do we define prompt.

So what it focuses on — The Hague Convention of the civil aspects of child abduction — focuses on the wrongful removal, which means that at that point one parent had custody of the child and the other parent took them without permission and that there was unlawful retention. At the time when the treaty was created because a father would take a child on vacation and not return them back. And so it was unlawful retention saying “I'll take them away for two weeks, three weeks, six weeks” and then never return them back. And the goal of this treaty is to return the child back to its habitual residence … habitual considering where they lived, where they belonged to a community, that's what it was.

So more and more, we are now seeing as the world is turning flat, according to Freedmen, we are seeing more and more cases across the world. There are an increasing number of signatories and partners, you know. India's getting ready to sign the treaty so we will have even more cases that will come through us. The U.S. has the highest number of cases worldwide and the most U.S. cases that we receive involve Latin America and Europe.

So looking at the numbers, what we found is that there are cases that are registered within the U.S. State Department. We have, in 2009, there were 324 new cases which had 454 children involved in those cases. Those cases were incoming cases into the U.S. That means that children were brought into the U.S. with a parent in the U.S., in the U.S. courts.

And then we have cases that went out of the U.S. — so kids that were abducted out of the U.S. and into other parts of the country, and there were 828 of them that went to Hague countries. That means those countries that signed onto the petition, does that make sense?

So, one of the things that The Hague Convention lays out is that there has to be a designated central authority in each country that is actually then administering this treaty. They have protocols that are put into place, and you know, here in the U.S. State Department where the Office of Children's Issues is the one that manages all of the cases that come in, and go out as well. And then we have an implementing legislation within the U.S. that is called ICARA.

So there are defenses that are allowed under this. So one thing when I worked with this client of mine when this first case came to me was like, “What do we do? How do we work with this case?” We had a very short window of time. We had to appear in court within 48 hours, that's basically what the time she had. In that 48 hours there was no time to prepare. She actually already had a dissolution case that was going on; her attorney was doing a dissolution case that was going on simultaneously. That attorney had no clue about domestic violence and we had this Hague petition that had been filed on her and she didn't know what to do. In 48 hours she was asked to appear in front of the court and the whole goal was to send her children back. She had a 3-year-old and a 6-month-old, and that is what was asked of her.

And when reviewing The Hague Convention, what I found is, that there were some defenses that were available for these mothers that had fled with the children. One of them is that if you are settled in a new place — so you've lived here, you've got a community, your children are going to school —but that takes time, usually, right? You can't come in and within two weeks show that you're settled already.

The child is mature and objects to going back. And usually it is about 14 years or older, because we had another case after that, where the child was 14, he was 13 when they took him but by the time the case got resolved he turned 14 and refused to go back, and so the mother got to keep her child.

And then if the parent consents. If the parent is the left-behind parent and the left-behind parent willingly lets that mother and the child go — if you can prove that, that was a defense.

And then 13B, which is grave risk of physical or psychological harm that places a child in an intolerable situation. And this to me was very important. Because to me, domestic violence where a child is exposed to domestic violence, sees the severe violence in the house, you're placing a child in an intolerable situation, and therefore we should be able to apply grave risk and that's where we went with that particular case.

And then the other one was violation of a child's human rights. So it's really about sending a child back to a country where they are violating every kind of human rights and abuses are taking place in those countries, then a judge has every right not to send those children back to that country.

Jeffrey Edleson: Thank you … I'm just stepping in for a few minutes to talk about the past research. And I want to acknowledge that a lot of the diagrams and statistics Sudha just used came from the State Department's annual report and I think the Office of Children's Issues is sort of over here so thank you for doing all of that data collection and reporting because it's been very useful to us.

As we were going back to the research, probably what's cited as one of the first American studies, and I'm not sure if I'll pronounce it correctly, but, Agopian, which was his dissertation at the University of Southern California, 30 years ago. And if you go through all of these studies over the times, and I'm betting you Geoffrey Greif, who's done a lot of — I have his book right here on the table here —and others who have done research on child abduction over the years, have mentioned, consistently, domestic violence or family violence. In fact, Agopian, 30 years ago, had an entire chapter on family violence — talked about abduction as being a product of prior conflict in the family. But interestingly, also, all of these studies, primarily studied left-behind parents. And what we're presenting today are studies of taking parents, because very few people have studied the taking parents; most have interviewed or surveyed the left-behind parents.

So you can see, I won't go through all of this, but most recently what's been occurring is that The Hague Convention written 30 years ago before there was really any research on domestic violence, was written with the image of a taking parent as a father who is taking the child to a country where that child will never see that … where the mother, the primary caregiver, will never see that child again. And it was envisioned as a way to aid the primary care-giving parent to get the prompt return of the child.

Interestingly Nigel Lowe, from the U.K., who's done a worldwide census of Hague cases estimates that 68 percent of the taking parents are now mothers taking their children out of one country to another. And in our case mostly U.S. citizens married to foreign citizens living overseas, returning to their family for support in the U.S. So our research is very different because most of this research focuses on the left-behind parents — the prior research.

I think there's a huge tension in Hague Convention cases, from my perspective as a researcher on child exposure. First of all, The Hague Convention has a fairly narrow view of what grave risk is considered to a child. Usually, if a child's abused, they're going to be sent, they're not going to be sent back to the other country. If there's direct child physical or sexual abuse, but as you'll see in our research, if the child's been exposed to domestic violence, despite 20 years of research on the harm and the risk that exposure to domestic violence — adult-to-adult domestic violence — the grave risk that that causes to children, despite that 20 years of research, most of the decisions do not consider domestic violence to be a grave risk to children. And that actually ended up being true in our research as well. So there's a great tension, I think, between the last 20 years of research and a Convention and a definition of grave risk that is mostly defined 30 years ago before this research became available.

We have a lot more transnational parents. The Hague Convention applies even if two U.S. citizens are living overseas, and taking a job overseas, and one U.S. citizen brings the children back to the U.S. — it could still apply and a U.S. father or mother living in another country can still file a Hague petition to bring the child back to that other country. So, many more transnational families. In fact I think now 22 percent of the children in this country have at least one parent who is foreign born — so we have a great increase in the number of multinational marriages, or transnational marriages in the U.S.

We have this whole literature of the last 20 years on the effect of domestic violence on children, and then we have these narrow, judicial decisions, that narrowly define what grave risk to children is. And that's why we felt this was an important piece to study.

So we focused only on Hague Convention cases where there were allegations of adult-to-adult domestic violence. We interviewed mothers — and Taryn is going to talk about the interviews with mothers. We studied all the published judicial decisions of Hague cases — there are over 300 of them. We identified 47 published decisions that involve allegations of domestic violence. We also interviewed, extensively, lawyers who had worked with the mothers we interviewed, as well as other lawyers who had either represented the petitioning fathers or other lawyers who had represented mothers that we didn't interview. And then finally we interviewed a few other people — guardian ad litem appointed in one case, two expert witnesses and a number of other people that were key informants.

And so it's really a multimethod study — we have some statistical analyses of the judicial decisions, but primarily it's a qualitative exploratory study of mothers who have taken their children into the U.S. and then been issued a petition based on The Hague Convention.

So given that the international census says that the great majority of taking parents are now mothers, given that in fact most of these children end up being returned to the fathers … to the other country, but defacto to the fathers in the other country and domestic violence is alleged — so what is the role of domestic violence in these cases? And that's what this study sought to try to answer.

Within — just to give you a sense of our focus, I've sort of gone through this, certainly there are a lot of non-Hague countries where there are international custody cases and then there are incoming cases where there's a potential Hague petition filed. So these are not proportional squares, but the total population are transnational family custody cases. Within that you can have non-Hague outgoing and U.S.-Hague incoming.

Within the incoming, which is what we studied, parents bringing their children into the U.S., you could have no domestic violence alleged or domestic violence. And within the domestic violence alleged you can have mothers or fathers. So we're studying the variant one, a very specific group of parents, which are the taking mothers who've alleged domestic violence against the father in the other country, the left-behind father who is petitioning for the return of the children under The Hague Convention. And with that, I'll turn it back to Taryn.

Taryn Lindhorst: Good morning. I want to start by talking a little bit about the scope of the study and the methods that we used to find these women who, in general, were very difficult to locate. And then give you a sense of the stories that they told about their experiences both in the other country and then what happened when they came here to the United States.

So the first thing I want to mention is the importance of human subjects protection with this group of women. We were studying women who had Hague petitions that were filed against them here in the United States, and some of them came from countries where their case was the only Hague petition case that came from that country. That meant that these women, just by telling a few details of their stories, were very identifiable. So as I go through this presentation and tell you a little bit about them we have done a lot of work to try to obscure some of the details about them so it's not really possible to figure out what countries these women came from.

We didn't interview the fathers, partially because of our concerns about the kind of safety issues that might arise for these families and particularly, as I go through the presentation, you'll see that The Hague petition is only one element in a series of both legal and other kinds of interactions that put mothers and their children at risk. So we didn't talk to the dads but in order to get their perspective as much as we could we tried to talk to a number of attorneys that had represented these fathers and felt they could present the fathers' stories and opinions about these cases.

When we talked to the women they self-referred to our project and we'll talk at the end about the limitations of that approach. But we didn't know at the time that we began our conversations with them, how safe they were to have a conversation about domestic violence. And our interviews were often at least two hours, some of them went as long as eight hours, although not at one time, because who can talk for that long? But we talked to women multiple times in order to get the fullness of the story that they wanted to disclose. So we did a safety evaluation with each of those women at the beginning and then again at the end of the interview process to hopefully ensure their safety as much as we could. And then, as I mentioned, we de-identify the data.

How do you find women who have had these kinds of petitions? There's not a listing out there that we could just go to a list and send a survey to, so we had to do quite a bit of digging to try and find them. And we started that process with attorneys that had ever had any kind of work with a Hague case, whether they had represented mothers or fathers, whether there was domestic violence or not. And we came up with — through LexisNexis searches and other kinds of searches of legal databases— a listing of 102 attorneys that had had some Hague case at some point in time. And we contacted those attorneys to ask them, did they have a mother who had been a respondent to a petition here in the U.S. courts, not a court in other countries? Did they have a mom that was a petitioner here in the U.S. who also, it was their belief, there might have been domestic violence involved in that situation? And out of those 102 attorneys we talked to, 51 had a woman like that.

So we asked them … we sent them a packet of information that included information for the woman about how to get in touch with us. So we never spoke directly to a woman until she actually contacted us. That's, I think, a little different from other studies where you can reach your people that you're trying to find more directly, this is indirect because of the situation and because of the safety concerns.

So we created a website that explained the study. We knew that some of these women were going to have concerns about whether or not the study was a safe thing for them to participate in. And so if you actually go to this HagueDV website, we'll show you, at the end, some more information about that — it's still up but it's more about the results of the study — but initially we were trying to provide information to women in order to help them to decide whether or not they would participate.

So 45 women contacted the project and said that they had been in a situation with a Hague case and that they felt that they had been victims of domestic violence. So in their own minds, in order to get themselves into our study, they had to, at some level, decide that domestic violence was an issue for them. And as we talk about … as we'll talk later, that whole process of coming to the realization or deciding to label oneself as a victim of something is not something that necessarily happens for all women. Some women can have these same experiences and say “I'm not a victim of domestic violence,” and they wouldn't have referred themselves to our study.

So we had 45 women, but about half of those women were not eligible because most of them had Hague cases that were going out, whereas they were being heard in another country's court. So those cases — we wanted to look at the U.S. court system response. We had 22 women that we ended up interviewing that were eligible both because they had a case here in the United States and because they said there was domestic violence happening.

So we took an approach that we were trying to allow these women to tell their stories as much as they could in their own words. And that approach … we took that approach as opposed to a more traditional survey approach because we knew, first of all, we don't know a whole lot about this case so to actually even construct a survey to say, “Ok. What about this or this?” We had to know some more to even be able to do that. We wanted to get the fullest kind of sense of what the experiences of the women were. And we knew we were going to be talking to them about something that, for many of them, was very traumatizing.

And so we wanted to take special notice of the kind of traumatic nature of this kind of discussion where you are relating stories about violence that you've experienced or your kids have experienced. And we felt that this would be a kind of approach that was one the women would be most receptive to and that was based on our previous work with other domestic violence victims here in the United States.

But we asked a certain set of questions of all of the mothers. We started with asking them about the events that led up to The Hague petition being filed so they could tell us their story in their own words. And then if they hadn't mentioned it, we asked them specifically about physical violence against them or their children. The effects of the process, as they saw it, on their kids, and issues around the resources that they used both in the other country and in the United States, and the legal processes that they experienced.

So the women reported on the fathers in these cases, and as you can see they are mainly in their late 30s. Most of them said themselves that they were white women here in the United States. But we did also interview a group of women that were from Latin American countries, and I think it was Jeff mentioned, or Sudha mentioned, that citizenship is not an issue in The Hague. So we can both have U.S. citizens in other countries that are using this process, and we can have people that neither the mother or father are citizens but are here in the United States using a legal process, and so we had some of each of those kinds of folks.

This is a highly educated group of women. Half of them had their bachelor's degrees, in fact, many of them met their future husbands in college. Most of the men had at least a bachelor's degree and most of the men were employed, but the women were not in the other country. And these were long-term relationships. So for the most part, was in families where it was within a couple years of the marriage. We're talking about 10 years of marriage, of actual marriage, and sometimes longer relationships.

Now 60 percent of the cases that we interviewed the women's Hague petition had been heard in the last five years, but 40 percent of them, it had been longer than that.

So there were about two kids in each of these families that we talked with. The kids were, generally speaking, quite young. So they ranged in age from 1 to 15, but mostly they were right around 4, 5 and 6. And we had …. the majority, most of the kids were boys, which was interesting.

So we had, just as a general scope of where these women were, what the countries were that the fathers were petitioning from, six of them were in northern Europe, 11 were in the Mediterranean — any of the Mediterranean countries touching the Mediterranean sea — and then five were from Latin America. Seventeen of those women were U.S. citizens and five were not.

So I want to start the presentation of our results of what the women said by going through a composite case study that we created to try to tell the story of what these women experienced in their own words.

What we did is we went through those interview transcripts that we had and we took out examples that the women provided that were most typical of the experiences across the whole sample of the women that we talked to. And I think it's important to give this kind of big picture sense of what was happening because most people are pretty unfamiliar with what's going on with these kind of Hague petition cases.

So this is our composite case example, told in the voices of the women: “I was born and raised here in the United States and I met my husband here. I have a daughter who's 5 years old and a son who is 3. When we went to Europe to visit his family, we had our fair share of fights here in the U.S. but he changed once we got to Europe. When we got there he told me we weren't going back to the U.S. I didn't know that when we left. About a year after we were in Europe things got even worse than the usual hitting and the ways he would make me feel bad.

“One night he put a weapon to my head. I begged him not to play around like that, please. I tried not to move an inch because I thought if I moved he will shoot me. I closed my eyes and I heard the click then he took the weapon away from my temple and laughed. One time when things got really bad the neighbors called the police. Even though I didn't speak the language I could definitely understand it. The police officer told my husband that he had to guard our son's legal papers because I was an American and couldn't be trusted.

“My husband was reassured so he became even more violent. He boasted about being in control of me. He was very happy and very secure but after that I knew, I knew my situation — it was sealed.

“During this time there was one moment I remember when I knew we had to get out. He attacked me in front of both the kids. He shoved me down in the bathtub and he had his hands around my neck and he was hitting my head against the bathtub screaming, ‘I'm going to kill you.' Both kids were crying and my daughter was yelling at him to stop. That was the turning point for me. The problem was that I didn't have any money and he had taken our passports and hidden them.

“A couple of months later my brother came to see us. I hadn't really told anyone in my family what was happening. It's so hard to admit that you've made such a big mistake. My brother could see how tense things were between us. He convinced my husband that we should go on a vacation to the United States to see my parents at Thanksgiving. My husband agreed to a 30 day visit. He thought he had control over me. I knew he wasn't going to change and I was stuck there by his control, not by my will, and that if God was giving me a chance to get out of there and get out of that situation, then this might be my last chance to take it.

“As soon as we were in the U.S. my parents helped me find a divorce attorney and started divorce proceedings. Three months after we came home there was a knock at the front door. It was the police and they gave me The Hague petition. Without further notice the police and federal marshals went into the house and asked my parents where the kids' room was and they packed some of their clothes and shoes into some boxes.

“The police said that they had to take the kids so I wouldn't run off with them. The children clung to me crying and the police had to tear them away. My lawyer had never heard of The Hague Convention being used in a divorce case but he did his best to research it. The judge told both attorneys before I even entered the room that the kids were going back and she didn't want an international incident. She said, ‘I'm not sending these kids to a war zone. I'm not sending them to Bosnia. They're going back to Europe. Let their courts handle this.'

“When I heard her decision I literally collapsed on the floor. It made no legal sense and it certainly made no humane or common sense. We appealed the ruling twice but our appeal was denied. So about seven months after he filed The Hague petition the kids were with him on a plane back to Europe, so that's where we are now.

“I came back to Europe when the kids came back and I started fighting in the courts here. For the first year my parents supported me since I didn't have the legal citizenship papers to get a job. I finally managed to get those papers after a year and I found a part-time job. It's been three years since we came back. He doesn't want to get divorced because it would cost him money and he has a new girlfriend so I'm still trying to get divorced here. I see my kids four days and four hours a month. My son is having a lot of problems and he tells me that his dad hits him. We're trying to get that admitted to court.

“The European government says I can't have custody because I left to America without asking for his permission, that I had kidnapped the children. Regardless of what we showed them or told them, or that the kids are afraid of him, it doesn't seem to matter here or in the U.S. The scary thing is, we came back to our own country and to our own family but we were still liable to the laws of another country. 

“The fact that the American government sent us back, shipped us out of our home country, no other citizen can have that done to them. That's called deportation.”

So to summarize what happened, in most of these cases the children were returned by the judge here in the United States, pursuant to The Hague petition, back to the other country. Fifty-five percent of the moms we talked to, that was the case but just under half retained their children here in this country, so there were some reasons why these two decisions were made.

But to characterize these families and to characterize what was happening, we looked at the kinds of abuse the women describe. Now keep in mind, we didn't do a survey of them, except to say, to ask everyone in our study, “Were you physically harmed, or your children physically harmed by your husband?” But 21 out of 22 of the women that we talked to, in one case our transcript actually didn't work so I'm guessing that we would probably find 22 of the women, talked about this kind of level of emotional terrorizing and we chose to call it this rather than psychological abuse because it was clear that the intent was to instill fear in the women and in the children.

And so these women told multiple stories of these and in our final report we have several examples of this kind of terrorizing that was happening in their lives. Most of them, 16 out of 22, had been actually physically harmed. So they were injured to the point that some of them needed medical care. They talked about routine kind of hitting. It's the kind of picture that here, in the United States, we would accept as being kind of classic picture of battering against a woman.

But there were just a couple of people, I want to say right here, that reported no physical violence at all, so it's important to recognize that these cases weren't completely characterized by physical violence but they were characterized by this kind of intensity of very controlling behavior. Fifteen of the women reported things, like we said in this case study, about ways that men threaten their lives or threaten the lives of their children. Many of them were intentionally isolated, again a classic kind of picture of battering, and subject to both economic control and problems that were specifically about their immigrant status in the other country. So when we talk about the issues of immigrant women here in the United States, they were replicated for these U.S. citizens in the other country. We did not ask women to report sexual assault to us, but five of the women volunteered that they had been raped by their husbands.

So in reporting what was happening in those families, there were four families where the mom said that the dad actually targeted one of the kids for physical child abuse, so this was the kind of thing of a father that oftentimes there would be some kind of conflict in the family but a child would be the focus of it in addition to the mother being a focus of the father's violence, so it was an intentional attempt to hurt that child.

In four other cases though, men were actually hurting their kids, their children were being injured, but it wasn't because the man was actually, the father was trying to hurt the child, the father was actually trying to hurt the mother and the child got in the way. So in some of these instances, women had young children in their arms, they were being beaten, the child itself was beaten in the course of the beating that the woman had.

In six of these cases, children were not physically harmed by the father either intentionally or unintentionally, but they, like we talked about in the case study, they witnessed severe acts of violence from the father against their mother. And then there were five cases where the kids didn't actually see any of this violence going on, but they felt the climate of fear that was in the family. We had three situations where the women's stories — it was unclear what had actually happened to the children.

So when we looked at the question of “Why are some of these children being sent back?” and “Why are some being retained in the United States?” — we found this clear pattern. So in those cases where there was either intentional or unintentional child abuse, it didn't matter if the dad meant to hurt the child, but if there was evidence that the child was hurt in addition to the mother, most of those cases, the child stayed here in the United States with the mom. But in those cases where the mom was being abused but the child was not physically harmed, whether or not they actually witnessed the violence and had psychological effects from it, the lack of physical effects was a defining feature and so in 8 out of 10 of those cases, those children were sent back to the other country.

In the rest of the cases, we had a couple of cases where it was unclear kind of how we might categorize these women. And in that unclear abuse category one went back and one stayed here. And then in the case where there was a lack of physical violence but clear efforts to control, intimidate and terrorize within the family, one woman managed to retain her child here and she pretty much told a story of deciding to pay her husband quite a bit of money in order to have that be available so that they could make that decision. In the other case the woman herself was much poorer and her children were sent back to the other country.

So I think it's important to understand that these women didn't just decide on the spur of the moment to flee the other country. Most of them were working fairly closely with other kinds of resources in that country to try to cope with the violence that they were experiencing. So most of the women went to the police or a judiciary representative but they had no, they received no help that actually helped them to stop the violence and we've had a report of one family where they had been sent to mediation in the other country, and the first mediation visit resulted in him beating her after the mediation event, and then after that happened he didn't go back. He refused to go to the mediation and there was nothing that required that they continue in mediation. So there was no other kind of assistance then to that family to try to stop the violence.

Many of the women sought out a domestic violence resource in that country although some of the countries that they were in didn't have any resources at all, and so in some of the European countries there were more resources, but in others there weren't. Many of the women contacted the U.S. Embassy and in some cases they had excellent, incredible help from embassy officials. And in other cases they were told there was nothing the embassy could do to assist them.

So out of our 22 women, 18 of them contacted some other resource in that country. Now, some of those women had extreme events of violence that made them decide spontaneously to leave after contacting these folks, and figuring out that, coming to the conclusion, I think, in their own minds that they weren't going to get help there. And they needed help.

So the majority of the women when they came, they came to the United States because they had family members here. And I think it's important to keep in mind, here in the United States when a women experiences battering, we know that her most likely avenue for support, the first people she's going to turn to, are her friends and family. So these women weren't doing anything remarkably different from women here in the United States but the problem was they crossed an international boundary when doing that.

So there were several barriers that the women faced that are, I think, important to note in these kinds of cases. And one was that many of them didn't speak the language of the country where they were living so some of the countries where they were living, their script was not in western script so they couldn't actually use a phonebook to look up a resource to try to get information about how to get help was extremely difficult. So that kind of linguistic and cultural isolation was a factor in many of these cases.

For some of the women, the issue was that in that in that other country, even as a married woman, she didn't have access to citizenship rights, and this became a real issue for the domestic violence resources, because even in this country you know our domestic violence resources are stretched very thin and people make decisions about who they consider to be their clients, and some of the women reported that they would go to a domestic violence shelter and be told that because they weren't a citizen of the country they couldn't be helped.

Some of the countries had no particular domestic violence assistance. For instance, some of the women could not obtain things like orders of protection or other kinds of legal documents that would help them to establish a safe zone in the other country for them with their children. So that kind of law wasn't a part of that country's work.

Here in the United States by far, with the exception of a few people that may have ended up with attorneys that may have had more than one Hague-type case, the majority of these women, they went back home to their families, their parents recommended a family law attorney in their community, that attorney had never heard of The Hague Convention, had no information about lawyering these cases, and it was heard by judges who likewise had very little information about how to handle these cases because many times these judges may hear only one Hague case in the course of their career.

And then finally, as Sudha was mentioning at the beginning, these cases are fast. The timeline is intended to get the child back to where it's considered to be the habitual residence, and they cost a lot of money so some of the women were able to get pro bono help. The men in this country at this point in time have access to pro bono resources, the fathers that petition here.

So we were able to ask the women what happened after The Hague experience. And for those women who retained their children here in the United States, three of them had no further contact with the father — the father just kind of quit, gave up, went away. Four of them, they worked out a visitation plan that everyone was in agreement to, and it continued to, and that visitation plan was enough in the course of the divorce to allow a kind of sense of more calmness to happen in that relationship. But in three of those cases, so out of the 10 moms who retained their kids, in three of those cases there was continued legal conflict with the father, so this included both attempts by the father to change the custody arrangements, renewed Hague petitions after The Hague had been already decided, and various events like that going on, oftentimes for many years.

In those cases where the children are returned to the other country, 6 out of 12 of those mothers have no contact or such limited contact as to be essentially no contact with their children. They're living with the father. In three of those cases, the courts in the other country returned the children to the mom, and the mother left with permission of the courts, came back here to the United States. And in two of the cases, we had two judges here in the United States who sent the children back to the other country with the mandate that the children remain in the mother's custody in that other country and that is the case — that was the case as of the time that we interviewed them.

We wanted to make sure that it was clear that that kind of choice led to some other kinds of problems for these moms and their kids. So in 2 out of 12 of those moms, they had renewed physical abuse both to the child and to the mother, so the child was usually in the father's custody, the child, or at least one of the children, was experiencing some kind of physical abuse, and the mother was also experiencing physical abuse from the father. In one case there was a mother that was beaten twice by the father but the child had not been harmed, and in two other cases the father was threatening to harm the mother or to take the children and hide them in such a way that the mother would never see them again.

Now I mentioned that we had some cases of women who were not citizens here in the United States. The majority of those were Latina women from various Latin American countries and there were some dynamics that were somewhat different. The linguistic and cultural isolation those women experienced was here in the U.S., not in the other country. The problems with access to resources was here in the U.S. oftentimes.

But there was an interesting kind of legal twist in some of their stories and that was this issue of using the VAWA petitions in order to claim for asylum for domestic violence. And two of the moms were pursuing that option in addition to having The Hague petition filed against them. And so the judges decided in those two cases to give those mothers more time to resolve the domestic violence, the VAWA petition for asylum and rejected The Hague petition so the children remained with the mother here in the United States while that process is going on. But asylum obviously is not available to U.S. citizens here within our own country.

So the important piece here to recognize and to take away from this presentation is the moms that we talked to were experiencing severe and significant domestic violence and many of their children were also being abused. They didn't have access to resources in other countries or oftentimes, in the U.S., to support their own safety or their children's safety, and that were children returned to their abusive father, regardless of the presence of domestic violence, because that was not something that was considered, either was not raised in The Hague petition or if it was, it was not considered to be pertinent to this issue of returning children to their habitual residence.

And then when women experience battering but not their children, so that group of kids that are exposed to violence but aren't actually the victims of it directly, those children were more likely to be returned.

Edleson: So this is really three studies. Taryn just presented the results from interviews with the mothers. I'm going to present the results of the interviews with the lawyers and attorneys both on behalf of the mothers as well as attorneys for the fathers, and then briefly touch on the study of the published Hague Convention judicial decisions. So I'm going to focus here on legal professionals first in our study.

Taryn didn't mention, but the interviews with mothers, some of them lasted up to seven hours, over a couple of interview periods. Most of the attorney ones were about an hour long and we interviewed 15 respondent mothers' attorneys, 11 had represented the mothers that we interviewed, and eight petitioner attorneys for the fathers, six of whom had been the opposing council with the attorneys that had represented mothers we interviewed. So there are actually six groups of two attorneys and a mother that — where we interviewed the whole set of them.

Key results: I think resources are a really important piece of this story in the attorney interviews. The act of good lawyering on behalf of clients is important, how the courts — in what court jurisdiction these cases were heard, and then finally the whole issue of orders, undertakings, mirror orders and the like, and I'll go into each one of these.

First of all, financial resources were major. The U.S. has taken an exception to Article 26 of The Hague Convention, which mandates a country to cover the costs of the left-behind parent's litigation cost in the country. So when a left-behind parent comes to this country, in other countries they may be represented by a legal paid defense attorney, in our country we excepted out of that. The State Department makes a network, it was established by the ABA and now makes a network of pro bono attorneys around the country available if the left-behind parent can't pay for that attorney.

What we found in our interviews, most of the left-behind fathers did access that network through the State Department and had the advantage of having pro bono representation, usually by attorneys in large firms with the backing of the full resources of the large firm there, whereas the mothers did not because they can look at that list, that list is made available, but many times they didn't even know about it. The State Department has made available preparation materials for the left-behind parent's attorney may pay, in some cases, the cost of the left-behind parent to come to the U.S., but the mothers were pretty much on their own out there as a respondent. Most of them found an attorney in a small family law practice who had to really put aside their entire practice to take this case on because they're very rapid, take a lot of preparation, and happen in a very short period of time.

The moms and the attorneys estimated the cost of 35,000 to 200,000 dollars of legal costs alone and that's consistent with Jeffrey's or actually Giaconi, I don't know how to pronounce the name, the survey of international Hague cases 10 years ago that it was $25,000 was the mean and the median I think was $12,000 but up to $200,000, so 10 years later we're seeing similar costs in our studies, both estimated by the mothers and the attorneys, so very expensive.

And I should just say in some countries, before I move on, the representation for both the left-behind parent and the taking parent is paid for by the country. So for example, we were in Japan this summer at a conference on The Hague Convention and Australia will cover the cost of both the left-behind parent's representation and the respondent parent's representation so there's some kind of balancing of resources in some countries, but not in the U.S.

Effort mattered greatly. Good lawyering mattered greatly. If this lawyer was an advocate on behalf of this mother and pulled out every stop they could find, it made a huge difference in these cases. Use of expert witnesses was key for the defense for claiming exceptions or defenses under The Hague Convention, preparation of their clients, and collecting data evidence from the other country. These are very complex cases. Think of a very difficult custody case, domestic one, but with all of the documents in another country, in a foreign language, having to access those, having to translate them and get them into court in 48 hours or even less than a week is a pretty difficult effort to achieve and some lawyers really did go those extra steps and were able to get that evidence.

And then use of orders, undertakings, mirror orders, orders by the court to say, if this woman and child are going to go back to the other country, before you send these children back, petitioner has to achieve X, Y and Z to provide safety to the mother and children. That's not even a mirror order, that's just a local order, but a contingent local order.

Assessing allegations — very different perspectives. Of course the petitioner's attorney did not interview the respondent mother in-depth except in court so they had a much more limited contact with the mother and most of them did not believe the mother's statement of domestic violence — felt like it was an allegation and a leverage to use in the case. Whereas most of the mothers' attorneys really deeply believed the stories they were hearing, felt that they were accurate and honest depictions.

Even if the attorneys disagreed on the legitimacy of the allegation of domestic violence, what they did agree on is that domestic violence usually did not play a major role in the courts' decisions. So if the child was not him- or herself directly physically or sexually abused, domestic violence, usually the court dismissed the allegations of domestic violence. In fact a case two weeks ago in St. Paul, Minnesota, the federal judge denied the defense's request that I be an expert witness in the case and sent the child and 20 month old back to Mexico with the father after a week's consideration. So oftentimes domestic violence is not considered an issue, and the attorneys agreed on that.

A big difference between the attorneys for each side: the petitioner — the fathers' attorneys really gave priority to, we have to respect the courts of other countries. We've signed this treaty, we're a party to the treaty with this other country, we have to respect that their courts will handle the custody and protection of the children adequately and we need to respect that and send the children back. Whereas the mothers' attorneys took a very different perspective and were much more concerned about the safety of the children and the mothers and trying to figure out ways to protect them either in this country or if they go back, how to protect them long term.

And then unique, I think, to the U.S. although probably not unique to the U.S., but the U.S. is one of the few countries in the world where Hague Convention cases can go before any of, I think there are 19,000 or 29,000 judges in the country. Does anybody know the exact number? It's tens of thousands of judges. It can appear in state court or federal court. So a judge may get a Hague case once or twice in their career and hear it and so there's a sort of a, sometimes in these cases we hear that there was a jockeying back and forth just to try to get it into state court or federal court.

The fathers' attorneys — the petitioners — definitely preferred federal court because they felt like federal judges don't know as much about domestic violence, won't deal with this as a family issue, will focus more on treaty and international treaty issues and focus their attention there. The mothers' attorneys were actually mixed, which was surprising to us. Some of them wanted it in state courts because they felt like judges in state courts have much better training about the issues of domestic violence and family relations but others felt like the federal judges were more willing to give because they weren't nervous about an international treaty and having to decide on an international treaty; they were more relaxed about it and were willing to accept evidence and do a full due process hearing for the respondent's side.

So there was mixed opinion about where these cases should go, but some countries don't do it this way. They have a Hague bench where there's a group of judges who are trained on The Hague Convention, all Hague Convention cases go before those judges, and some countries even have a Hague bar where there's a group of attorneys in the country who represent Hague petition cases and are trained deeply in these cases. In the U.S. it's a much more chaotic experience I think with thousands of judges potentially hearing these and many judges and attorneys never having had these before.

Finally, we've been mentioning these terms: undertaking, mirror orders, orders. An undertaking, as we understand it from our interviews, and Taryn and I are not attorneys, is that it's a mutually agreed upon — it's a mutual agreement between the parties that on return to the other country, the petitioner will take steps X, Y and Z to provide safety to the child, safety to the mother. That can take a form of a court order — the court can take that undertaking that's been voluntarily agreed and enter it as a court order. It can also be created as a mirror order where the judge seeks out a judge in another country, they work out the language between them, and both judges in each country enter that as an order. You can imagine that's a very difficult process. We found it happened only in very few cases.

Unfortunately, four of the mothers in our situation that their children were sent back, four of them had undertakings or court orders, none of them were carried out in the other country, nothing was implemented according to those undertakings or orders. And in a study by Reunite International in the U.K., when they looked at the outcomes of undertakings and orders, there were I think half of the cases they studied had undertakings and orders. Two-thirds of those were not implemented and all six of the undertakings or orders that involved protection of the child, none of those six undertakings were implemented in the other country, in the U.K. study.

So it's not only our experience, actually the attorneys agreed that they don't like to use undertakings or mirror orders because they don't think they're worth much more than the paper that they're written on, although I think some judges may feel more comfortable sending children back if they have an undertaking written or an order in place. Even though our experience and Reunite's study results show that they are not followed through on in the other country. And it raises a lot of issues also about the ABA and The Hague Permanent Bureau is now working on more mediation between parties instead of court cases. The question I would raise, based on this research, is: will mediation agreements be enforced in the other country? How reliable are mediation agreements if even court orders are not observed in the other country?

Just to say something about our judicial decisions. These are The Hague defenses asserted by mothers in the 47 published cases that we studied where there are allegations of domestic violence. Thirty-eight of the 47 cases have an assertion by the mother respondent attorney that there was grave risk to the child. Only 12 of those were successful and I want to talk about those 12 just briefly.

In 11 of 12 of those cases, there were substantiated child maltreatment, so physical or sexual abuse against the child. So almost to the case, there had to be some, with one exception, there had to be some direct child abuse for grave risk to be successful. In 10 of those 12 cases there was also child exposure to domestic violence. In 10 of the cases there was both expert testimony about the impact on children and a diagnosis presented of post-traumatic stress disorder, so there was some kind of expert testimony and a diagnosis of the impact on children. Seven of the 12 cases where it was successful, there was a threat to kill the mother or somebody in the family, so this is where these cases were successful.

I think it speaks to the importance of due process, allowing time for experts to interview the children and to testify in court. It speaks to the importance of time to collect evidence, which many of these cases have not permitted — collect evidence in the other country as well as witnesses in the other country. One case, the embassy actually gave us room with the speakerphone for witnesses in the other country to testify in court via speakerphone, but that was in only one of the cases where we found that the court had taken the time and allowed the representatives to arrange those testimonies.

So grave risk factors, pretty important, DV and child maltreatment do not seem to be connected in many of these rulings and they come out with very narrow interpretations of that grave risk and it leads to very limited legal success for battered mothers when their children are not also being abused.

Battered mother respondents need more access and a more balanced legal playing field. The importance of lawyering, especially aimed at recognizing DV as a factor in these cases; evidence and expert testimony being very important; and then just training, training, training, training, is what I could say because judges change, lawyers change, and many different people, and short-term availability of sort of instant training online, so at midnight the night before someone can get some information and background on that.

We're out of time, but we do think this is a really important study, in that it's the first time we have systematically looked at respondent taking parent's stories, especially around domestic violence in cases in the U.S. and we also do think that sometimes like in custody cases, some of the domestically violent left-behind fathers are using The Hague petitions as a way to retrieve their children, punish the mothers, and actually indirect way of getting the mothers to return, which many of our mothers did.

Limitations: of course this is a very specific group of moms in Hague petition cases. They were all represented by attorneys so we don't know about the moms who didn't have the resources either to leave the other country, or once in this country to have representation. We got deep information but we don't know … this is not a representative sample and one thing that, when we were in Japan this summer, one of the representatives from the Permanent Bureau at The Hague in the Netherlands said that they've never followed up on the outcomes of these cases — what happens when children and mothers go back. They don't have the resources to do it and they've never done it and I think that's really important for the State Department to follow up, what happens afterwards, and to track pieces like domestic violence allegations. I don't think I saw that in the annual report to Congress, but I think that would be a really useful statistic to be tracking because we don't know how many Hague petitions really involve domestic violence. It's only when it's alleged.

We want to tell you, on December 10th, we're very fortunate to have received grants from Robins, Kaplan, Miller, and Ciresi, an international law firm, and the United Way of the Twin Cities to put on a live event at the Guthrie Theater in Minneapolis. It'll be live, web-fed worldwide and recorded for showing, free, on Thomson Reuters website. Westlaw is located in Minneapolis in the Twin Cities and we've had a wonderful group of Thomson Reuters lawyers who have worked with us on this project. It'll be free — CLEs and CEUs — and it'll be available through the web if you don't want to come to Minneapolis in December and it'll be up for three months on Thomson Reuters for free CLEs after that as well.

Just recognizing we had great help from Luz Lopez of Boston University who did our Spanish interviews. Gita Mehrotra and William Veneski from University of Washington, both doctoral students, and then about 15 lawyers and web designers from Thomson Reuters, Westlaw and FindLaw divisions, and students from the Minnesota Justice Foundation.

Our national advisory board is headed by the chief justice of Washington State Supreme Court, Barbara Madsen, and we have a large group.

And this is our website where you can find all this information, at Haguedv.org.

So we took a little bit of our question and answer time, but I'll turn it back to you, John. Thank you.

[Applause.]

Laub: You surely packed in a lot of information in the time you had so I want to open up the floor for questions and again want to remind you that since we are audio recording, if you could use the microphone and state your name and your affiliation, and then we have people ready to answer.

Amy Lopez: Hi. I'm Amy Lopez at the American Bar Association Commission on Domestic Violence. Just had a couple questions about the 22 victims — had they all filed for dissolution of marriage?

Lindhorst: Yes, and in fact in some of the cases, they were actually legally divorced in the other country, but they were continuing to experience domestic violence from their ex-husbands. So they had either filed in the other country or here in the United States once they got here, they did.

Lopez: OK. Perfect. Thank you.

Edleson: Should point out that a recent Supreme Court decision in Abbott v. Abbott ruled that even in that case the parents were living in Chile, the mother had full custody, but the father had no exit, ne exeat I think is the legal term, no exit rights, if the mother were to take the child out of Chile, the father had to give permission and she took the child out. Before that point, the courts had been divided on that point of whether no exit really would rise to the level of custody under The Hague Convention and under Abbott v. Abbott the court said that any father with a no exit right has the right to bring a Hague petition in a case like that, and we expect that that'll expand the number of Hague cases even further.

Lopez: Thank you.

Deirdre Sow: Hello. I just wanted to ask you, my name is Deirdre Sow, I'm not associated with any organization. I'm actually a victim and involved in this type of case and have been for three years, and we were a little bit late to the meeting, but my question is, most of this meeting today seemed to be about women that are in other countries, have you ever done a seminar to give information to the victims themselves, and that's what I'd really like to know because my case for three years has still been ongoing.

I'm illegal in this country, I have no job and right now I'm almost out on the street and the courts are reclaiming vestiges of the child and the father of the child has been abusive. He's been arrested three times. I've had about 20 orders of protection. He's threatened to kill me. I haven't enough food to feed myself and my child and that's the situation, and I have no family or support over here.

Edleson: So we studied situations only of incoming but certainly the opposite is true, which is your case, where mothers might be taking their children out of the country. For American women overseas, there's an organization in Portland, Oregon, called the Americans Overseas Domestic Violence Crisis Center. Paula Lucas is the director of that, and they provide some assistance before women leave the other country, and I think that's really important, because really before you leave a country, you have to try to figure out all the possibilities of settling legally in the other country, The Hague petition is not a good tool to depend on if you're leaving. It's actually not; it's to your disadvantage. So it's really important to think about. I also think the State Department, and I know Paula Lucas' organization has been educating consulates around the world, consular staff, on domestic violence and the issues of The Hague Convention, and other issues like that. That there needs to be a lot more education for people entering international … bi-national marriages, what the potential consequences are, what The Hague petition is before you even enter the relationship.

But then, overseas I think the consular officials could be much more helpful. We had some cases where the consular officials were incredible. The case that Sudha talked about, the consular officials helped the mother leave Europe and come back to the U.S. even though she had a petition filed against her, the consulate helped her a lot.

Sow: Yes, and just one other point I've wanted to make, the judge that's actually on my case, and I've had several judges because it's taken so long, it's actually his first custody case, never mind The Hague Convention, and that's really a big problem. Even the attorneys seem to know more about these types of cases than they do at this point.

[Murmuring.]

Lindhorst: You know some of the women we talked to, that was exactly the case. They knew more about this than their attorneys did and they educated their attorneys. But if it's any help to you at all to know there are other women that are experiencing the same thing you are, whether here in the U.S. or in other countries.

Sow: And I thank you because people like you give us hope. Thank you very much.

Lindhorst: I'd like to just finish by saying that we're in the process of figuring out what to place on our website to try to alert mothers, who are either here in the U.S. or in other countries about some of these issues and resources that might be available to them. So if you come back and look in a few months, and see what we have.

Edleson: I also wanted to say that we get e-mails or calls several times a week from different mothers around the U.S. and in other countries somewhere out in the world that are both Hague signatories, and it's very difficult, there's very little assistance available for mothers who find themselves victims of domestic violence and in another country where they're not a citizen, where they're an immigrant where they're trying to figure out what to do in a way that isn't going to punish them and their children.

Laub: Just would like to ask if anyone in the audience, given the expertise in the room, can provide any help to you to see you at the end of the session. Other questions? Yes, please.

Jennifer White: Hi. My name is Jennifer White. I'm an attorney with the National Judicial Institute on Domestic Violence, also the Family Violence Prevention Fund, and I have two questions. One was, did the group of moms that you interviewed come from a specific part of the country? I don't know if you mentioned that or if they were just national, they had come from all over.

Lindhorst: The women were all over in the states and several of the women that we interviewed were actually living in the other countries so they weren't here in the United States at the time that we talked to them.

White: And then the second question I had was that I know through your composite study that you mentioned the use of firearms and I was wondering if that was sort of something that came up in every case or how common it was that sort of one of the events that triggered the departure had to do with firearms.

Lindhorst: There was more than one case where firearms were mentioned, or other weapons like knives, and where women actually were injured in some way, usually by a knife not by a gun. But the situation of feeling that one's life is threatened, there were some women who talked about that their husbands were former military officers, former police officers. Their husbands would say things to them like, “I know how to kill you in so many ways and no one will ever know that I did it.” You know, so even if a weapon, per se, wasn't necessarily used, there were certainly threats that many of these women experienced that to them were very credible and could end their lives or their children's lives.

White: Thank you.

Edleson: And our experience, and this is a subsample remember, of all Hague cases it's one group, but our experience was that many of the left-behind fathers had a lot of resources and a lot of political connectedness in their country and one of the threats that a lot of the moms felt was that this family network and family influence was working against her in the court system or just in terms of her safety and the children's safety.

Shetty: And that was the reason why she then left and came here for protection, because she felt that within the U.S. and family she can get the protection.

White: Right. Thank you.

Kris Rose: Hi. I'm Kris Rose, Deputy Director with NIJ and I'm just, first of all I'd like to thank you for presenting your research here today. We're grateful to have you talking about an issue that I don't think a lot of people know a whole lot about. But second I'd like to ask you about where you think the research goes next. You did a great job of talking about these particular cases, but you've got to have ideas about where you need to go based on what you've learned from this study.

Lindhorst: Yeah, we actually do have quite a few ideas. I mean, as we said in the slide that Jeff showed that showed this is just a little tiny subset of people that are experiencing these kinds of problems, I think there's a number of ways to try and think about how to understand the big picture here.

One is to think about our understanding of Hague cases in general and how we know what we know about them. And so as we mentioned it's very hard to find these women, but there may be other ways to think about collecting a list of people that we could survey because I think one of the important things we don't really know is how prevalent is this kind of situation in these cases. So this was a study that helped us to know if this was happening, here's what it kind of looked like for women who reported this, but we don't know how many cases that's true of.

I think the other thing is to take a broader look at the issue of international child custody in general. So Hague cases are just a portion of those kinds of cases and being able to think, I mean the strategies that are being used in these cases are going to transcend Hague petition cases themselves and some, The Hague petition itself was used in the cases that we looked at but in international child custody where domestic violence is an issue I think we need a better understanding of what we need to do to ensure the safety of all participants in those situations. And we can only expect more of these transnational families, the globalization process is going to bring more and more of this kind of situation of people with different countries of origin here in the United States, people in the United States elsewhere that we will need to be able to respond to and the advocates we talked with are like, “We have no clue about this.”

A further kind of piece, I think, is going to be understanding how to structure educational interventions for the people that are seeing these cases in a country that has diffused these cases across so many different kinds of places, courts, lawyers, etc.

Edleson: I think another question is, after The Hague decision, a lot of children are sent back, what are the outcomes? So we have the outcomes just in these few cases but there are many children, and I think around 250 were returned from the U.S. back to another country last year, 250 children. So what happens to these children? Every year 250 or so are being sent back.

What happens, and what happens when children are sent back here from another country? I think there's really a gap in the information of what are the consequences of these decisions.

Shetty: I mean as lawyers we've always struggled with this issue, right, and I mean, we've been working with immigrant mothers a long time here in the U.S. who have always been in fear of their children being kidnapped and taken abroad and no protocols to bring them back. I think The Hague is a really good thing that it has the protocols put in place, but then can we have enough time for due process to allow women's voices to be heard and to really say, “Is this the just and fair thing to do?”

And I think the next step probably is to really educate lawyers on this issue on, you know, what other ways that we can help mothers and children and then also to look at how can we educate judges. So we did that in Washington state, we created a bench guide for the judges and it was very acceptable and so now I'll be looking at doing it internationally as well so that at least judges have something that they can use in order to review when the case is in front of their faces.

Edleson: I think in terms of follow up not just research, there needs to be some kind of resource where the attorneys representing mothers can get some assistance. I'm not sure where that should be, but there needs to be that kind of assistance. I also think when we think about, you know, amending ICARA, which is the implementing legislation in the U.S., I don't know if it even requires amending ICARA so much as judges accepting that exposure to domestic violence does pose a grave risk because grave risk, even though it's narrowly defined, it's not defined in the treaty. It's the interpretations that have been the narrow interpretations, so should our interpretations of great risk be revised based on two decades of research on children's exposure to domestic violence.

Shetty: And you know The Hague is really about the best interest of the child, so is it in the best interest of the child to send the child back when, like this particular case that just came, it was a 20 month old child was sent back. Is that in the best interest of the child? And so I think we really need to think about this.

Edleson: Actually, let me just say that The Hague purposely doesn't use the terms “best interest” but it is, the goal was the safety of the children. At the time, because of the research and the feeling that the impact of abduction was so terrible on children, that this was a remedy to promptly return them and stop the negative impact of abduction. But what wasn't looked at is sometimes that abduction may be for the safety of the child and may not be sort of harming the child. It can have a mixed effect too. It may be for the safety of the child may still be harmful but we have to be clear about that.

Catherine [No last name given]: Hi. My name's Catherine. I was tricked into coming to this country to get my son off me.

Edleson: Speak into the microphone.

Catherine [No last name given]: I was tricked into coming to this country to take my child off me and as soon as I arrived here, I arrived into a well-known and historic family unit Virginia crap, and the whole community will not say — will not support me in any way, shape or form because of this family and because of their history. And The Hague Convention was abused by this American to get his son off me. He has no time for me, he just wanted the child, and brought me here just to take the child, and I'm stuck here as a prisoner if I want to see my child.

I think Americans are more, too, are really, really just concerned about Americans and American rights. I don't see anyone concerned about the rights of a non-American in this country. It's not fair that my son was born in Ireland, lived in Ireland til he was 3 and a half. He's lived here for two years and the American court system doesn't want to know my son's rights to his Irish culture.

Edleson: Can I just say something about habitual residence or do you want to … go ahead.

Lindhorst: I think you're raising an important larger issue that we didn't get a chance to touch on here, but is in the final report that we're going to be releasing, and that's this question of the kind of way that people get to other countries. And I think our assumption is, most people move to other countries of their own free will, their own volition, the couple has decided together, “Let's go there. It's going to be a good idea,” and in the majority of cases we talked to that was the intent, but just the best interest, that the family wants to go to the other country.

But there is this subset of women that we talked to that either experienced what you're talking about, which is that they found out when they got to the other country that their husband had been planning this for a period of time with a specific intent to stay in that country without having communicated that prior to the leaving.

And in one case where the husband actually said, “I will kill you if you don't come,” and that threat was a credible threat based on his behavior up to that point in time and so she chose to go back to the other country to try to keep herself safe and her child safe. So this question of the reason for the movement between the countries, I think, is a really important one.

We had a group of women in this study who were not American citizens, and so this question of how domestic violence — you know citizenship is not a primary focus of The Hague. The point is, where is the child usually, habitually resident, and that's the thing that has to get resolved.

So when there are women in this country who are also not U.S. citizens under the same kind of process that you're experiencing, or they brought their children to this country to try to escape what was happening in the other country. And the remedies, it's like we haven't thought this far forward on the frontiers of international family law I don't think. We don't quite understand some of the ramifications of what's happening as people are having these kinds of migratory experiences, and it's intersecting with violence or abuse in the family.

Edleson: And I should say that habitual residence, which is sort of — what court should really be deciding on the custody of the child, it's the child's habitual residence — that's usually decided on where the child has physically be residing for a period of time. However, American courts are very divided on whether intention of the parents to reside someplace should be considered in the case. Some countries have decided that intention is very important and can be brought into the decision of habitual residence. The courts across different circuits in the U.S. are divided on that, to what degree the parents' intention to live in the U.S. decides where the habitual residence is. One court even decided if there was domestic violence in that household, that's not a peaceful place, that's not a habitual residence, and said that the child wouldn't be returned.

So there are thousands of judges out there with many different decisions and different interpretations. Some countries have taken steps to define habitual residence a bit more broadly than just physical presence of the child to include the intentions of the parents.

Laub: We are out of time, and please join me in thanking the presenters for an informative presentation.

[Applause.]

 

 

Date Created: August 20, 2019