Battered Women, Their Children, and International Law: The Unintended Consequences of the Hague Child Abduction Convention

7 | Judicial Reasoning in Hague Cases Involving Domestic Violence

172 Surprisingly, previous empirical studies of abducted children have not analyzed us court data involving Hague petitions, despite the fact that these data are part of the public record in most cases. We examined published us judicial decisions in Hague cases with three questions in mind: (1) Who are the parties involved in Hague disputes in which domestic violence is alleged? (2) What are the legal outcomes of Hague litigation? (3) How often—and under what circumstances—are the exceptions to return successfully used? Why We Studied Judicial Opinions Over the last several decades, scholars have explored the law’s complicated role in modern society (Garland, 1990; Hunt, 1993; Calavita, 2001). Traditionally, the law has been thought of as a body of rules and regulations that proscribe behavior and order social relations. This functionalist approach stems from early sociological writings, including those of Karl Marx and Émile Durkheim. Both the Hague Convention and icara can be studied from this viewpoint— their provisions and components can be examined in order to obtain a theoretical understanding of how Hague cases should be adjudicated. However, this rather narrow approach to understanding the law provides only a partial understanding of the role that the Convention and icara play in the lives of abused women. To truly understand the power of the Convention and icara, we must also examine the judicial decisions that give them life. Our research shows that these decisions are, at times, ideologically embedded and reflect a particular set of social attitudes about domestic violence, children, and abused women. with William Vesneski 7 Judicial Reasoning in Hague Cases Involving Domestic Violence Judicial Reasoning in Hague Domestic Violence Cases | 173 How We Studied Judicial Opinions The opinions in our sample were identified through online LexisNexis and Westlaw searches. We narrowed our sample to include only published opinions , as is typical of empirical legal research (Chew & Kelley, 2005; Perry, Kulik, & Bourhis, 2004; Choi & Gulati, 2008). A case is published in a legal context when it is systematically organized and published in case recorders. Unlike in federal courts—where both trial and appellate court opinions are published— state trial court opinions are not routinely published. Thus, our sample does not include an exhaustive collection of state trial court opinions. We used published opinions because we were interested in decisions that could serve as precedent in future Hague litigation. Precedent refers to the fact that judges and lawyers in the Anglo-American legal system look to past decisions of higher courts for guidance and insight when deciding new cases. In short, these earlier decisions are predictive of future court rulings, and they “shape and constrain” what a court can do in the present (White, 1995). Gibbons (1999) summarizes the nature of precedent in this way: [I]f the judgment has any significance in terms of extending or restricting a rule of law, or establishing a rule of statutory interpretation, then it is reported and becomes part of the huge volume of precedents that constitute case law . . . it is then a source of law and potentially an originating point for a new trial process with a new set of parties. (p. 15) Although unpublished opinions are increasingly viewed as precedent, this is a relatively recent development. For example, citations to unpublished opinions are permitted by the Federal Rules of Appellate Procedure only for decisions issued after January 1, 2007 (Rule 32.1). In addition, LexisNexis reports unpublished opinions only for us District Court cases decided after June 21, 2005, with only selective prior coverage. It is difficult to research and retrieve unpublished opinions issued before 2005. We also consolidated multiple opinions into single “cases” for purposes of analysis. Specifically, in several instances both trial and appellate court opinions were found involving the same pair of litigants. Because we were interested in determining the ultimate outcomes of Hague litigation, these multiple decisions were consolidated into single cases.1 Once all of the opinions were consolidated 1. For example, there are several opinions pertaining to the dispute between Felix Blondin and Marthe Dubois between 1998 and 2000, including decisions made by the us Court of 174 | Chapter 7 into cases, we used Shepard’s Citations to ensure that we had located all relevant appellate history. The most recent opinion in our sample was issued on March 19, 2009. Once we had removed cases that did not fit our criteria and consolidated multiple opinions, our final sample was...