6 | How Attorneys Litigate Hague Domestic Violence Cases
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146 The literature reviewed in earlier chapters focused on domestic violence as an issue in abduction cases. There is also a small literature on litigating Hague Convention cases, but little in this literature directly addresses the issue of domestic violence. There are three primary published resources focused on the litigation of Hague cases. Two of these were published over a decade ago: one is The Hague Convention on International Child Abduction by Beaumont and McEleavy (1999) and the other is International Child Custody Cases: Handling Hague Convention Cases in U.S. Courts by Garbolino (2000). More recently, a guide for attorneys titled Litigating International Child Abduction Cases under the Hague Convention, by the law firm of Kilpatrick Stockton, llp (2007), was published and widely distributed with the support of the National Center for Missing and Exploited Children. Beaumont and McEleavy (1999) review the Hague Convention, examine the global case law to the late 1990s, and explore the various issues that have arisen around the world when Hague cases are filed and litigated. There is little direct mention of adult domestic violence in their scholarly review, but in a case involving a left-behind father in Colorado and a taking mother in Wales, uk, the authors describe a young child who was exposed to “random acts of violence witnessed by and directed to the child, together with intimidation and other inappropriate behavior” (p. 150). The four-year-old exhibited many trauma symptoms when living with his father, but then did not show these symptoms when the mother left him to live with her parents in Wales. The judge in Wales denied the father’s petition for the child’s return based on this evidence of psychological harm to the child. The two other texts focus on litigating Hague cases solely in us courts. Garbolino ’s (2000) text, written for and distributed by the us National Judicial Col6 How Attorneys Litigate Hague Domestic Violence Cases How Attorneys Litigate Hague Domestic Violence Cases  |  147 lege, reviews the basic elements of Hague Convention cases and how these are handled under icara and in us courts. There is scant mention of domestic violence in this volume, except the description of a case to illustrate the use of undertakings by the court to insure that children are safe on return to their habitual residence. Finally, the Kilpatrick Stockton (2007) manual is clearly written for attorneys representing left-behind parents. There is little mention of domestic violence except in suggestions for information gathering from left-behind parents. There is an extensive discussion of grave risk, and at least one case in this discussion involves parents whose “discord and alleged abuse” was a reason for a us judge to deny a petition for the return of a child to Australia. The Beaumont and McEleavy (1999) and the Garbolino (2000) texts are more descriptive than prescriptive as to the actions attorneys should take in representing clients in Hague convention cases. The Kilpatrick Stockton (2007) manual is much more prescriptive, and advises attorneys to keep the Hague case focused on the narrow jurisdictional issue of habitual residence, that is, which country’s court should be hearing and deciding custody and access issues . It argues that attorneys should make every effort not to allow these cases to be turned into a hearing on the merits of custody and access, but rather to stay focused on where such evidence should be heard and decided on. Not surprisingly , the approach advocated in the Kilpatrick Stockton (2007) manual is not instructive to attorneys for taking mothers who are responding to a Hague petition in us courts. The International Child Abduction Database (incadat; www.incadat.com), maintained by the Permanent Bureau of the Hague Convention, provides another excellent source of information on judicial opinions, but tells us little about how attorneys for parents in these proceedings strategized on behalf of those they represented. The studies conducted by Reunite International in Europe are another source of information on Hague litigation. These studies, mentioned earlier, shed light on litigation of European Hague cases that may or may not include domestic violence. For example, the parents interviewed reported that agreements, or undertakings, by petitioners to implement changes in the other country were issued in just over one-half (57%) of the cases. The 2003 study revealed that two-thirds (67%) of the undertakings issued—including all focused on a child’s safety upon return—were not implemented in the other country (Reunite International, 2003). Even when judges issued...


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Subject Headings

  • Convention on the Civil Aspects of International Child Abduction (1980).
  • Parental kidnapping.
  • Abused women.
  • Family violence.
  • Custody of children.
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