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

5 | Hague Decisions and the Aftermath

121 Basically there are three choices in these situations: (1) You stay there in those conditions and you survive as long as you can. (2) You walk away from your child and you walk away. (3) You run, with your child. So there’s three. That’s it. —Mother involved in a Hague Convention case Despite the evidence we have presented of the seriousness of the abuse these mothers faced, and despite the larger social science literature on the effects of adult domestic violence exposure on children, over one-half of the women in this study had their children returned to the other country—and most of the time, this meant return to the abusive husband. In particular, in determining whether the children could remain in the United States with their mothers, judges seemed to rely solely (but not always) on whether a child had been directly physically or sexually abused by the father. Children consistently remained in the States only when they were directly exposed to their fathers’ physical violence as his intended target, or were unintentionally physically hurt during attacks on their mothers. Witnessing or being exposed to the father’s physical violence and emotional terrorizing toward the mother, in the absence of physical abuse of the child, was not a sufficient justification for having the child remain with the mother in the United States. In this chapter we review the judicial decisions made in each woman’s Hague petition. But one of the important lessons we learned from listening to these women’s stories was that the Hague process was, in fact, just one among several legal struggles that both preceded and persisted after the judge’s Hague decision . What happened after the Hague petition sheds further light on the continuing nature of the abuse and difficulties these women face. 5 Hague Decisions and the Aftermath 122 | Chapter 5 US Judicial Decisions in Response to a Hague Convention Petition After women relocated to the United States, usually within a few months, their (ex-) husbands filed a petition under the Hague Convention to force the prompt return of their children to the other country. In a few instances, the serving of the Hague petition was a traumatizing event for the entire family, as us Marshals or other law enforcement officials would, with little notice, remove the children from the mother’s care. Sometimes the children would be placed into some sort of out-of-home care and/or they were immediately turned over to their father’s custody until the Hague petition could be decided. Marta* (who did not speak English) describes what happened when she was served with the Hague petition: When I got home, the police were waiting for me. They gave me a legal document about 200 pages long, perhaps longer. Then, they told me they had to take the kids. Without further notice, the police went into the house and asked my family where the kids’ room was, and they packed some of their clothes and shoes in some boxes my kids stored their toys in. There were about six policemen; two went into the bedroom for some clothes and shoes. [crying] This part is very hard for me [. . .] So, my kids didn’t know what was happening. The police said they had to take my kids. [. . .] The kids were still small. [. . .] They clung on to my legs, and the police yanked them away. The kids were crying when they left. [. . .] I couldn’t do anything because they told me they had to take them. My kids didn’t speak English well, so they didn’t understand what was happening. In this case, Marta’s* children were removed from her care, and she was not told where they were going. Marta’s* court appearance for the Hague petition was scheduled four hours after her children were taken. She had an attorney helping her with her divorce proceedings, so she was able to delay the hearing for a day, but within two weeks her children were returned to her husband in the other country. Marta’s* experience of having her children returned to the other country was the more common outcome for the women in the study. Table 5.1 shows who had her children returned to the abusive husband and who was able to remain in the United States, along with the reason for denial (if the Hague petition was unsuccessful) and who the children were returned to (if the Hague petition was successful...