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56 2 The Misinterpretation of Domestic Violence Recasting Survival as Child Abduction The purpose of the Hague Convention is to return children to their habitual residence as quickly as possible, because the assumption is that the taking parent has abducted the child, and that abduction is harmful to the child. The treaty priority is to have courts in the country where the child has usually resided make decisions about issues of custody and visitation when a marriage or partnership is dissolved, rather than allow a parent to “jurisdiction shop” for a legal venue that would be most favorable to his or her concerns. The Hague Convention does not define habitual residence, so courts have been left to determine their approach to this concept. As a result, us courts differ on what standards should be used to determine the habitual residence of the child. Vivatvaraphol (2009) has reviewed jurisprudence in this area and found that courts evaluate the shared intent between parents to reside in a certain place, and that this intent is not dependent on a certain amount of time elapsing , but rather on the “settled purpose” (p. 9) to make the new location the habitual residence in the “ordinary and natural” sense of these words (C v S [minor: abduction: illegitimate child (1990)]). Courts can look to certain facts as evidence of settled purpose, including “child’s enrollment in school, the primary language spoken by the child, the quality and duration of the child’s stay in a particular country, and the relationships formed by the child with friends and relatives” (Vivatvaraphol, 2009, p. 17). Citizenship is not considered in the question of habitual residence—it may be that none of the people in a Hague Convention case is a citizen of the country that is found to be the habitual residence . If a judge determines that the other country is the habitual residence of the child, then the mother would have to prove one of the defenses against return described in this book’s introduction. Misinterpretation of Domestic Violence | 57 An underlying assumption about habitual residence not explicitly stated in the Convention is that both parents have voluntarily agreed to reside in another country with their children. Without this presumption of voluntariness, one parent could force another to live in his or her country, and then claim abduction if the coerced parent leaves with the children. For this reason, legal scholars have stated that fundamentally, habitual residence must “entail some element of voluntariness and purposeful design” (Clive, 1997). When habitual residence is narrowly framed by looking at school attendance or length of time in the other country, what is often overlooked are the ways in which men may entrap women in other countries, even if the women initially agree to relocation. Moving to the Other Country In this section, we examine how the women in our sample came to be in these other countries, and we demonstrate the role that domestic violence played in some cases in determining the habitual residence of the children. We focus on the 17 cases in our sample of American women who moved to other countries to be with their husbands.1 This excludes the cases of five women who were citizens of other countries and who relocated to the United States to escape their husbands’ abuse.2 We focus on the cases of American citizens because they include a decision to move to the other country prior to the decision to flee back to the States, whereas the Latina mothers were not in “foreign” countries prior to their leave-taking. In 15 of the cases, women discussed how they came to be in the other country .3 We categorized the reasons women gave for moving to the other country 1. In most cases, the father was a citizen of the country to which the family moved. In two cases, an American husband, wife, and children relocated to Europe for economic reasons, but all were us citizens. 2. In the cases of the immigrant women we interviewed, the habitual residence of the child was understood by all parties to be the other country, because both parents (and the children) were generally citizens of that country and had lived there most, if not all of their lives, prior to leaving. In contrast, women who were American citizens made a decision at some point to immigrate to the other country, and as we will show, issues of coercion were sometimes involved in these decisions. We...


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