Copyright ©Ý 2000 Fordham Law Review; Merle H. Weiner (Republished with permission)
II. The Hague Convention on the Civil Aspects of International Child Abduction
III. Potential Reforms
ÝÝÝ The violence went on for nine months . . . . By the end, the beatings were happening weekly, sometimes three times a week . . . . It always went on in front on the kids . . . .Ý It was so serious, and so violent, and so horrible for the kids . . . .Ý My daughter still asks, 'Why'd papa try to break your arms and legs?'. . . I left France when I realized after nine months that there was nothing I could do there to do to stop the violence. [FN1] Introduction Ý Within the last decade, the American public and its politicians have come to acknowledge the horrors of domestic violence, and, in particular, the impact that it can have on children.Ý Every state now makes civil protection orders available to victims, [FN2] treats domestic abuse as a crime, [FN3] and considers domestic violence relevant to theadjudication of child custody. [FN4]Ý The federal government also has made tremendous strides in recognizing and addressing the problem of domestic violence. [FN5] Ý The United States is not the only country tackling the problem of domestic violence.Ý Various solutions are being implemented around the world.Ý In certain places, the legislative and judicial response has been pronounced. [FN6]Ý Reformers now are focusing attention oncountries where legal protection is nonexistent, or where reform has been incomplete or slow. [FN7] Ý Consistent with this trend, judges, practitioners, and researchers around the world have recently realized that domestic violence sometimes exists in the lives of women who 'abduct' their own children.Ý In 1993, Geoffrey Greif and Rebecca Hegar published a study of 368 left-behind parents whose children were abducted by the other parent. [FN8]Ý The study revealed that mothers constituted the majority of abductors, contrary to previous assumptions.Ý Their study also indicated that 'the marriages of the parents tended to be characterized by domestic violence.' [FN9]Ý They found that, ÝÝÝ some abducting parents in our study were fleeing abuse of themselves or their children.Ý Because our information came primarily from the left-behind parents, we expected to hear relatively few admissions of having been violent to a spouse or abusive toward a child.Ý However, during telephone follow-up interviews, 30% of the left-behind parents did admit that they either had been accused of or had engaged in acts of family violence. [FN10] The same year that Greif and Hegar published their study, the United States Congress recognized that abductors sometimes flee to escape domestic violence.Ý In passing the International Parental Kidnapping Crime Act of 1993, Congress provided an explicit defense for parents fleeing from domestic violence. [FN11]Ý More recently, at the conclusion of the third meeting of the Special Commission to discuss the operation of the Hague Convention on the Civil Aspects of International Child Abduction (the 'Hague Convention '), [FN12] the participants recognized: '[T]he majority of children . . . were taken away from their country of habitual residence by their mothers, who not infrequently alleged that they or the children had suffered hardship and domestic violence at the hands of the father.' [FN13] Ý The formal recognition that child abductors can be victims of domestic violence is relatively recent. [FN14]Ý This raises concerns about theprimary legal mechanism that addresses the problem of international child abduction--the Hague Convention on the Civil Aspects of International Child Abduction, completed by the Hague Conference on Private International Law in October 1980. [FN15] ÝThe Hague Convention's signatories proclaimed their firm conviction that 'the interests of children are of paramount importance in matters relating to their custody,' and sought 'to protect children' from the harmsattending wrongful removal or retention. [FN16]Ý The Convention, described in detail below, [FN17] affords left-behind parents a remedy '[t]o secure the prompt return of children wrongfully removed to or retained in any Contracting State' and '[t]o ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.' [FN18]Ý The Convention is presently in force in over sixty countries, including the United States. [FN19] Ý The time is ripe for an in-depth exploration of the Hague Convention's application to parents who take their children across international borders to escape from domestic violence. [FN20]Ý Part I ofthis Article explains that a general perception existed when the Hague Convention was drafted that the abductors were men who had lost or feared losing custody to the children's mothers. [FN21]Ý To the extent that domestic violence was considered at all by policy makers, fathers were sometimes thought to abduct their children as a way of abusing the children's mothers.Ý Against this backdrop, the Hague Convention's quick 'right of return' remedy and its limited defenses made perfect sense.Ý However, the Hague Convention framework makes far less sense as a remedy for abductions by primary caretakers, often women, who take their children with them when they flee from domestic violence. Ý Part II describes the minimal legal relevance domestic violence has to a Hague Convention proceeding initiated by a batterer to obtain the return of his children from his victim, the abductor.Ý The Convention contains no defense stating that an abduction is justified if it occurred to escape from domestic violence.Ý Moreover, none of the current defenses readily encompass that argument. [FN22]Ý Battered women seeking to negate elements of the petitioner's prima facie case also obtain minimal assistance from the fact that they were battered by the petitioner. [FN23]Ý Consequently, the domestic violence victim's ability to defeat a Hague Convention application for the return of her child, if possible at all, often turns more on fortuity and the judge's sympathy than on any principled rule of law. Ý Part III explores possible solutions for eliminating or mitigating the injustice that can result to domestic violence victims and their children under the Hague Convention.Ý The options evaluated range from the rather modest possibility that courts extract undertakings from petitioners that guarantee an abductor's safety [FN24] to the more radical adoption of an explicit domestic violence defense. [FN25]Ý This Article also explores whether the new Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children ('Protection Convention') [FN26] can ameliorate the problems faced by domestic violence victims who are served with a Hague Convention petition. [FN27]Ý Lastly, this Article examines the possibility that domestic violence victims and their children could remain in the countries to which they fled, while the parties litigate custody in the courts of their children's habitual residence. [FN28] Ý The goals of this Article are to help ensure that the Convention is not another obstacle for women seeking to escape abusive situations, that women are not compelled to litigate custody in an unsafe venue, and that women are not required to litigate in a forum that was chosen solely by their batterers and imposed upon them by force.Ý These goals must be accomplished without undermining the important framework of the Hague Convention.Ý Hopefully, policy makers at the fourth meeting of the Special Commission to review the operation of the Convention, scheduled for March 2001, [FN29] will agree with these goals and strive for their achievement, regardless of whether this Article's specific solution finds favor. Ý As described below, these goals may be achievable with a strong commitment from member states to interpret the existing Convention, particularly the term 'habitual residence' and the Article 13(b) defense, in a manner consistent with these goals.Ý Because these interpretations may not be uniformly adopted, this Article ultimatelyÝ recommends a two-pronged solution. First, there should be a total defense to the Convention's remedy of return for battered women who are forced to flee a country and settle abroad with their children.Ý Second, there should be a procedure similar to that found in the United States' Uniform Child Custody Jurisdiction and Enforcement Act for those women who voluntarily go to a foreign country, and then flee to escape from domestic violence.Ý The procedure would allow these victims to litigate issues of custody from the country to which they fled.Ý The return of their children would be stayed until this litigation was complete.Ý At this time, this two- pronged solution offers the best hope for addressing domestic violence victims' concerns without undermining the Convention. Ý Although every international child abduction is factually distinct, all international child abductions converge with the transportation of a child across national borders.Ý Some common patterns emerge and deserve attention because specially tailored solutions to these abductions may make the most sense.Ý For example, abductions by strangers are often treated differently by law enforcement than abductions by relatives. [FN30]Ý Among abductions committed by parents, [FN31] it is useful to focus on the abductor's gender and motives.Ý One can then segregate those cases where the abductor claims to have abducted her children to escape from domestic violence.Ý This subset of cases raises unique issues for policy makers, as described below. [FN32] Ý Policy makers historically have tended to treat international child abduction by parents as a monolith, despite significant differences between the types of abduction.Ý In the United States, for example, reformers used the image of a 'typical' international child abduction to guide their efforts. [FN33]Ý The prototype is not traceable to any onesource, nor is it scientifically verifiable.Ý Rather, the prototype emerges from the documents that accompanied policy makers' attempts to address the problem of international child abduction and from stories of abduction highlighted in the popular press.Ý A similar image also exists in the materials that guided the formation of the Hague Convention on Child Abduction by members of the Hague Conference on Private International Law. Ý In the United States, widespread attention first focused on the problem of international child abduction during the late 1970s and the early 1980s. [FN34]Ý From this period until the early 1990s, the stereotypical image of an international child abduction was the following: the abductor was a male non-custodial parent, usually a foreign national, who removed the child from the child's mother and primary caretaker, typically an American national. Ý This stereotype dominated Congressional proceedings in 1986 for the ratification of the Hague Convention. [FN35]Ý Examples employed by Representative Stark of California, in urging his colleagues to ratifythe treaty, are illustrative. [FN36]Ý He spoke of two cases that, for him, were paradigmatic of the 'serious problem' of international child abduction.Ý Both involved abductions by male non-custodial parents, [FN37] and a 'deprived parent in the United States.' [FN38] Congressional testimony also reinforced the image that the abductor was the non-custodial parent, [FN39] male, [FN40] and that the left-behind parent was an American. [FN41] Ý A similar prototype of abduction helped secure passage of the United States' implementing legislation, the International Child Abduction Remedies Act of 1988 ('ICARA'). [FN42]Ý For example, Senator Dixon, a self- proclaimed 'leader in the effort to pass [ICARA],' [FN43] told the following story: ÝÝÝ In January 1986, a constituent of mine, Patricia Rousch, saw her two daughters Alia and Aisha off for an overnight stay with their father, a Saudi national, who at that time was legally divorced from Pat, but had gained limited visitation rights.Ý Pat had legal custody of the children. That cold January night was the last time Pat Rousch saw her children.Ý Her ex-husband stole the children out of the country on a plane to Saudi Arabia. [FN44] Ý Other legislators related similar stories.Ý Then-Senator Gore spoke of Holly Planells, a woman whose son was taken by her ex-husband to Jordan, even though she had full legal custody and the judge had imposed restrictions on the father's weekend visitation. [FN45]Ý Senator Simon spoke of the 'American children living with their fathers [in Jordan] in violation of U.S. court custody orders.' [FN46]Ý Representative Hughes said that 'most' cases involved abduction by the non-custodial parent, [FN47] an assumption shared by other legislators, [FN48] whichimplied that most abductors were male. [FN49]Ý The stories typically involved an American left-behind parent. [FN50]Ý Senator Dixon, invoking nationalist sentiment, told his colleagues that children who are abducted are often 'brainwashed into hating their American parent . . . [and] taught to hate their native country, the United States.' [FN51] Ý Domestic violence between the abductor and the left-behind parent was not usually part of the paradigm, probably because domestic violence was not as highly visible a political issue in the late 1970s and the early 1980s as it is today.Ý Domestic violence, however, was sometimes relevant to policy makers to the extent that the abduction comprised a continuation of domestic violence. [FN52]Ý For example, Senator Dixon made a point of emphasizing that Patricia Roush was a victim of domestic violence. [FN53] Ý During this same period, the popular press in the United States also portrayed a similar picture of international child abduction.Ý First, the vast majority of stories in the press involved fathers who had abducted their children.Ý For example, the American public was told about Rebecca Hickman, who had been staying in a battered women's shelter after months of 'mental and physical abuse,' and who had been awarded custody of her three-year-old daughter by the court. [FN54]Ý Her husband, however, abducted her daughter to Iran.Ý Similarly, the public learned about the woes of Dana Svoboda, [FN55] Lilly Izumi, [FN56] Kristine Uhlman, [FN57] Cathy Mahone, [FN58] and others. [FN59]Ý The stories ofPatricia Roush and Holly Plannells, told frequently in Congress, were also reported repeatedly in the popular press. [FN60]Ý While there were occasional stories of mothers abducting their children, [FN61] especially Norwegian mothers successfully abducting their children to Norway with the apparent assistance of the Norwegian government, [FN62] mothers were not the dominant image of abductors captured by the press. Ý Second, the press, like the myopic United States legislators, focused almost exclusively on the American left-behind parents, and not on the American abductors returning to the United States.Ý For example, the Associated Press described the Convention in terms that made it seem as if Americans had nothing to lose from the Convention's application: 'The convention was written to cover instances such as one in which an American marries a German while stationed in West Germany with the armed forces, they have a child and settle in theUnited States, and the German partner then returns to Germany with the child.' [FN63]Ý Political support for the Convention, almost uniform, [FN64] arguably may have waned somewhat if the Associated Press passage had read: 'The convention was written to cover instances such as one in which an American marries a German while stationed in West Germany with the armed forces, they have a child and settle in Germany, and the American then returns to the U.S. with the child to escape the domestic violence perpetuated upon her by her partner.' Ý An examination of the work documents for the Hague Convention reveals that a similar image--albeit not one reflective of nationalist sentiment--may have influenced the drafters of the Convention, although the Report of the Special Commission, written by Elisa Perez-Vera, suggests that the drafters were guided by no set image of abduction.Ý The Special Commission's Report stated, '[W]e dare not advance ideas on the possible psychological motivations leading to 'abduction'; this remains an obscure domain for the jurist.' [FN65]Ý Yet included in the work documents was a report by Adair Dyer that contained a paradigmatic abduction.Ý A section entitled, 'Typical elements of the situation which results in an abduction,' constructed a model of 'the typical situation which produces the abduction of a child by one of his parents.' [FN66]Ý The model suggested that the abductor is most typically the non-custodial parent who abducts because of frustration due to diminished influence and access to the child. [FN67]Ý While the model suggests that 'fear' can also lead a parent to abduct a child, the model restricts the relevant fear to that which may accompany losing custody or access to the child because of nationalitybias in the courts, superior resources of the other parent, or the other parent's efforts to abduct and conceal the child. [FN68]Ý Fear of personal violence perpetuated by the other parent is not mentioned as a common motivating factor for abduction. Ý There is some hint that the Conference also viewed the typical abductor as male.Ý While the model in Adair Dyer's report is generally written in gender- neutral terms, [FN69] the male pronoun does creep into the discussion and perhaps reveals the author's preconception of the abductor's gender.Ý The author writes, for example, '[T]he typical abductor must think that he has something to gain by his act of self-help.' [FN70]Ý In addition, since most non-custodial parents were men, that the author most likely envisioned a male abductor. Ý It is impossible to know whether Mr. Dyer's model influenced the drafters of the Hague Convention.Ý However, Ms. Perez-Vera explicitly mentions relying upon Adair Dyer's report in drafting the Convention. [FN71]Ý She also mentions relying upon the International Social Services Report, [FN72] which provided a similar model.Ý Yet, to some extent, whether Mr. Dyer's model influenced the drafters is irrelevant.Ý For if the drafters failed to consider the abductors' motivations in formulating the Convention, as Ms. Perez-Vera wrote, and if some abductors are motivated by a need to escape from domestic violence, then the drafters' omission has the same effect as if they overtly assumed the abductor is the male non-custodial parent. Ý The prototype that existed in the early years was not necessarily inaccurate for many international child abductions, [FN73] although itbecame a stereotype when used to describe all international child abductions or to formulate policy.Ý In a somewhat limited study of international child abduction by the International Social Service, which constituted part of the work documents for the Hague Convention, 80 out of 110 cases examined involved an abduction by the father or the father's relatives. [FN74]Ý The report cautions, however, that women may abduct as frequently as men, but that these abductions often do not come to authorities' attention because the fathers are not initiating actions, 'either because they consent to the transfer . . . or because they feel that their plight is hopeless to begin with.' [FN75] Ý Even individuals who were sensitive to the problem of domestic violence somehow missed the fact that some abductors might be domestic violence victims.Ý Illustrative is Michael W. Agopian's 1981 study on patterns of parental child-stealing. [FN76]Ý He dedicated an entire chapter to domestic violence. [FN77]Ý While he presented the data 'to sketch a perspective of the family structure as a unit considerably more crime prone than previously conceived,' [FN78] he concluded that his data did 'not imply any direct association between various types of violence or parental child-stealing. ' [FN79]Ý Throughout his analysis, Agopian implies that the abductor is typically the batterer. [FN80]Ý He fails to recognize that the domestic violence victim may be abducting the child to escape from her abuser. [FN81] Ý The picture of international child abduction started becoming more complete in this country sometime prior to 1993.Ý After 1993, there was a pronounced increase in the recognition that abductors might be mothers who were fleeing domestic abuse. [FN82]Ý It is impossible to pinpoint one story that helped reformulate the image of international child abduction in this country, but probably two notorious cases were significant in this regard.Ý First, there was the case of Elizabeth Morgan, who hid her daughter Hilary in New Zealand to protect Hilary from her father, Eric Foretich, who allegedly was sexually abusing Hilary. [FN83]Ý While the initial abduction occurred in 1987, near the time of ICARA's adoption, the press attention to the case increased over time as Morgan was jailed for contempt and as Congress passed legislation to limit the time a person could be held for civil contempt in a child custody proceeding. [FN84]Ý Second, in 1987Betty Mahmoody published Not Without My Daughter.Ý The story became a motion picture in 1991 starring Sally Field, and by 1992 over a million copies of the book had been sold. [FN85] The story documented Ms. Mahmoody's abduction of her daughter from Iran, which she described as 'a country where the laws decreed that [the husband] was [the wife's] absolute master,' [FN86] in order to escape her husband's physical and psychological abuse. [FN87]Ý Ms. Mahmoody shared her story with Congress in 1990. [FN88]Ý She told legislators how her husband beat them, and repeatedly threatened to kill her and, at one time, their daughter. [FN89] Ý By 1993, United States legislators clearly understood that international child abductors could be women fleeing from domestic abuse.Ý In 1993, the United States enacted the International Parental Kidnapping Crime Act ('IPKCA') and made it a felony to remove a child from the United States or to retain a child (who has been in the United States) outside the United States 'with intent to obstruct the lawful exercise of parental rights.' [FN90]Ý The statute recognizes as an affirmative defense, among others, that 'the defendant was fleeing an incidence or pattern of domestic violence.' [FN91]Ý This defense appeared in various versions of the bill, [FN92] and the defense appears to have been noncontroversial during the bill's drafting and passage. [FN93]Ý Similarly a number of states recognized domestic violence as a defense to the crime of parental kidnapping, which was a criminal offense in all fifty states, [FN94] even before ICARA's passage. [FN95] Ý The media clearly has moved away from its almost monolithic image of child abduction, undoubtedly aided by coverage of Hague Convention cases in this country.Ý The press now reports on motherswho abduct, and how these abductions are sometimes motivated by a need to escape from domestic abuse or to protect their children from the other parent's maltreatment. [FN96] Because these mothers, typically U.S. citizens, often lose under the Convention, the U.S. press now conveys, often with dismay, how the Convention can require that children be sent away from their custodial parent to a foreign country for the adjudication of the underlying custody dispute. [FN97] Ý This new media image of child abduction, with the accompanying skepticism about the Hague Convention, was recently evident in articles in the Boston Herald [FN98] and Boston Globe. [FN99]Ý A federal judge informed an American woman, just before Christmas, that her four- and nine-year-old children would have to return to Ireland.Ý The newspapers relayed how one child 'was born in Boston,' [FN100] and that the father was a 'wife- beater.' [FN101]Ý The mother was interviewed and shared some of the details of her violent life: 'her husband [broke] into her house three times and destroyed her belongings--in violation of the Irish version of a restraining order.' [FN102]Ý Apparently, '[s]he brought the children . . . back to the United States in 1997, fearing for their safety and her own.' [FN103]Ý One paper then reproduced the court's ruling: ÝÝÝ The evidence demonstrates that John is intemperate and oftenunkindÝ to his children and that he spanks and slaps them for minor childish infractions, and, of course, there is the constant exposure to verbal and physical conflict within the home . . . . As regrettable, and indeed as reprehensible as this state of affairs may be, it does not furnish grounds to deny this petition. [FN104] Ý The fact that the abductor might be a mother and a victim of domestic violence also has received global attention recently.Ý As mentioned above, the participants at the third meeting of the Special Commission to discuss the operation of the Hague Convention concluded that mothers are the majority of abductors and that these mothers frequently allege that the fathers perpetrate domestic violence against them or the children. [FN105]Ý At the Second World Congress on Family Law and the Rights of Children and Youth, held in San Francisco in 1997, one expert, reporting on her study identifying characteristics of parents in families experiencing international child abduction, stated: 'Family violence is characteristic of most of these families.Ý Allegations of spouse abuse, child abuse and serious child neglect are frequent, with many having sought restraining orders or reporting abuse to authorities.' [FN106]Ý A review of Hague Convention cases confirms that there are numerous cases where the mother abducts and alleges that she was the victim of domestic violence. [FN107] Ý A more complete and accurate picture of international child abduction than the narrow stereotype that prompted the Hague Convention now exists at both the international and national levels.Ý This awareness, in and of itself, does not necessarily presage a change in the law, or even a need to change the law.Ý A change in the law becomes necessary only if 1) the harm to children from abduction differs depending upon the gender of the abductor and the reason for the abduction, and/or 2) women who flee with their children to escape domestic violence have their safety or their children's safety unreasonably compromised by the Hague Convention, or otherwise suffer unfairly from the Hague Convention's application to their situation.Ý This Article suggests that both of these conclusions have validity. B. The Harm From the Failure to Abduct Ý The drafters of the Hague Convention assumed that international child abduction almost always harms children. [FN108]Ý The image of the abductor as the non-custodial, and sometimes abusive, parent made iteasy to articulate the harms of child abduction: children were removed from their primary caretakers and often subjected to life underground, to lies about their mothers, and to physical abuse.Ý The accompanying instability and disruption of emotional attachment led many people and institutions to equate child abduction with child abuse, even absent actual physical abuse or neglect. [FN109] Ý The harm to children from international child abduction is often expressed without qualification, leaving policy makers with an incomplete understanding of the effects of child abduction.Ý For example, one witness testified in the 1980s before Congress and said, without citation to any social science literature, 'Studies show that all abducted children are severely emotionally traumatized by [parental kidnapping].' [FN110]Ý In 1990, another witness stated, 'An increasing number of studies by scholars in the field of human behavior have identified that no child victim of a parental kidnapping escapes from severe and prolonged, if not permanent, psychic damages as the result of being taken from the other parent.' [FN111]Ý The hyperbole extended beyond congressional testimony and entered the legal community.Ý William Hilton, a practitioner in the United States and expert on the Convention, [FN112] stated at an ABA-sponsored event: 'No one would seriously question the premise that the unilateral removal of a child from its habitual residence is, at the minimum, detrimental to the child and it has been considered a form of child abuse.' [FN113]Ý The belief that children are indelibly harmed from international child abduction has also found support abroad. [FN114] Ý Despite a greater understanding today of who abducts and why, some individuals continue to suggest that abductions almost always harm children. For example, Marilyn Freeman recently reviewed the results of major research in her article entitled, The Effects and Consequences of International Child Abduction, [FN115] and wrote, 'What does seem clear is that, in most cases, an abducted child would be at risk of a spectrum of disorders related to adjustment.' [FN116]Ý She claims that it is 'inconceivable that those involved . . . do not seriously suffer as a consequence of abduction, ' [FN117] and asserts that the 'effects do not differ significantly depending upon the 'justifiability' of the abduction.' [FN118] Ý Professor Freeman's sweeping conclusions seem unfounded.Ý First, she herself critiques the available research.Ý She finds that '[v]ery little research on the subject' exists, [FN119] problems riddle the availableÝ studies, [FN120] and inconsistent results characterize the literature. [FN121] She concludes that 'the available research is unsatisfactory in terms of reliable conclusions.' [FN122]Ý Her assessment of the research, in this respect, seems accurate. [FN123]Ý Second, none of the research she reviews appears to control for 'justifiability.'Ý We simply do not yet know if abductions motivated by benevolent reasons cause less harm to children than abductions motivated by malevolent reasons, although common sense suggests that this would be true.Ý None of the research makes comparative assessments about whether a child is better off with the consequences of abduction, even assuming the consequences are negative, or with the consequences of what life might have been without the abduction (e.g., living in an abusive household where one parent is ultimately killed).Ý Third, and most importantly, the vast majority of the harm attributed to abduction, especially where the children are abducted for benevolent reasons, comes from living a life of secrecy.Ý No study has examined the impact on a child when the child is abducted for protective reasons and does not have to live 'underground.'Ý Logic suggests that a child secure in the knowledge that her mother has escaped domestic violence and that neither the child nor her mother will be forced to return to the place of the abuse, would exhibit a different psychological profile after abduction than the child yanked away from her primary caretaker and forced to live a life underground. Ý A more accurate statement about the harm to children from abduction is that the effects fall along a continuum.Ý The impact will depend upon whether the child is being removed from a traumaticfamily situation, [FN124] whether the child already has been uprooted from his or her familiar environment as part of the typical chaos accompanying separation and divorce, whether the child is too young to experience separation, whether the abductor is the primary caretaker, [FN125] whether the child's emotional bonding with the left-behind parent is a product of traumatic bonding (something not worthy of protection [FN126]), and whether the abductor poses a risk of physical abuse to the child. [FN127]Ý It is critical also to consider whether the child will be forced to live in hiding.Ý As researchers Greif and Hegar stated, ÝÝÝ It must be remembered, though, that there are as many variations as there are children.Ý At one end of the spectrum are children being taken away from an abusive situation by the parent to whom the child feels closest. This may not be damaging to the child, especially when compared with the alternatives.Ý At the other end of the continuum are children who are removed from a parent with whom they have formed a close bond and are placed in an abusive or neglectful environment where life is chaotic.Ý One could predict that the latter situation would be damaging to a child of any age.Ý These cases we have come to know fall along this wide spectrum. [FN128] One of the situations in which an abduction may be, on balance, beneficial, is when a primary caretaker removes the child from a home filled with domestic violence.Ý Most of the children in homes with domestic violence witness the violence, [FN129] and children are present 25% of the time when an abuser kills his victim. [FN130]Ý 'Clearly, witnessing violence in the home has a profoundly disturbing affect [sic] on children.' [FN131] Children can experience emotional problems, including feelings of fear, insecurity, anxiety, stress, low self-esteem, or guilt. [FN132] They can stall or regress developmentally. [FN133]Ý They can also exhibit physical manifestations of their emotional turmoil, cope by abusing drugs and alcohol, and internalize the appropriateness of violence to resolve conflicts. [FN134]Ý Harm to the child can occur even if the child never actually sees the abuse, but instead just hears it. [FN135]Ý Specific research comparing the benefits and disadvantages of abduction for children who are taken from abusive households by their primary caretakers would be extremely useful. Ý Such empirical research would also help us better assess the moral reprehensibility of the abductor's conduct.Ý When harm to the child from abduction seems inevitable, society characterizes the abductor as morally blameworthy: ÝÝÝ Various reasons are given for kidnapping, including the 'best interest of the child.'Ý However the evidence clearly states, that with rare exceptions involving major breaches of responsibility by social protective agencies, a parental kidnapping is most correctly explained as an act motivated by selfishness, egocentric need, pathological hate, spite or mental incompetence on the part of the kidnapping parent; an act which is done without regard for the rights and needs of the victim child. [FN136] Ý Once we acknowledge that harm does not befall every abducted child, or that the harm experienced from abducting may be less thanthe harm encountered from not abducting, we can begin to appreciate that some abductors do not abduct for selfish reasons.Ý Many mothers abduct to protect themselves and their children from the effects of living in an abusive household, or to become better parents by freeing themselves from oppression.Ý In this country, we recognize the importance of removing a child from an abusive household.Ý The state sometimes even removes children from their mothers when the mothers fail to take action to protect their children from domestic violence. [FN137] Consequently, when a mother abducts her children to remove the family from an abusive household, we should recognize that she probably acts not for selfish reasons, but because she has determined that the move is best for them. [FN138] Ý In addition, we must remember the moral blame that belongs on the shoulders of the domestic violence perpetrator.Ý The Hague Convention assumes that forum shopping by abduction is both harmful to children and unfair to the left-behind parent.Ý Yet, forum shopping by violence and coercion is also harmful to children and unfair to the other parent.Ý The incidental forum shopping that often accompanies an escape from domestic violence is certainly less reprehensible than the initial forum shopping achieved by violence and coercion, or even the violence itself. Ý Some readers may have the following reaction at this point: while witnessing domestic violence can be devastating for children, the domestic violence, in many instances, can be addressed in the country where it occurs and international flight is not required to obtain safety.Ý Therefore, the argument continues, one must compare the potential harm to the child from international abduction with the potential harm to the child from having the mother obtain legal protection and redress in the country where the domestic violence occurs. Ý This argument, while theoretically valid, has several shortcomings in practice.Ý First, some Abduction Convention signatories have inadequate laws relating to domestic violence. [FN139]Ý Second, somecountries undermine their adequate law-on-the-books by ineffective law enforcement or inadequate implementation of the civil law. [FN140]Ý The U.S. State Department issues reports about the human rights practices in other countries; these reports suggest that various Hague Convention signatories fail to protect domestic violence victims despite adequate laws-on-the-books. [FN141] Third, even assuming acountry provides adequate legal protection for domestic violence victims and their children, a victim may reasonably believe that departing the country is the only way that she can ensure her safety. Sometimes obtaining the legal remedies takes too much time and a victim has nowhere safe to go in the interim.Ý Some countries lack sufficient shelters for battered women. [FN142]Ý As one study indicated, the domestic violence victim who is an immigrant can be 'alienated from major social institutions,' with 'family/social support in another geographic area.' [FN143]Ý Similarly, the victim may feel that she cannot access the resources for obtaining safety in her present location, even if they are available.Ý She may not speak the language. [FN144]Ý She may be without money, transportation, or even phone service, all of which may stop her from utilizing existing legal or social service remedies.Ý She may find little support for her efforts to stop the domestic violence because it may be viewed as a private matter. [FN145]Ý As Greif andHegar explain, some women chose to abduct their children rather than to seek legal custody or the modification of a custody order 'because they despaired of getting what they wanted through legal channels, whether that was protection for themselves or the child . . ., [they lacked] a sense of control in a new and unfamiliar situation.' [FN146]Ý Finally, the victim may appreciate that accessing legal redress will increase the immediate danger to herself and to her child, as separation is the most dangerous time for domestic violence victims. [FN147]Ý Geographic distance may be the only avenue to reduce the likelihood of violence. Ý Consequently, the real question is whether a domestic violence victim who reasonably believes that escape is the only way to assure her safety, because she cannot obtain sufficient legal protection in the country of abuse, either because of the country's shortcomings, her batterer's tenaciousness, or her own limitations, should be subjected to the Hague Convention's remedy of return, described below.Ý The current Convention presumes that the remedy of return should be applied to her, just as it is applied to an abusive non- custodial father who abducts a child for malevolent reasons.Ý This answer suggests that the Convention must be reformed. C. The Story of Debra Mosesman Prevot Ý To get a sense of one type of situation I am concerned about, I detail the story of Debra Mosesman Prevot, an American, who married Jean-Claude Prevot, a French citizen, in 1988. [FN148]Ý The couple had two children: Ben, born in 1989, and Arielle, born in 1991. [FN149]Ý The couple lived in the United States from the time of their marriage until mid-1991, when Arielle was approximately five months old. [FN150] ÝThe family departed for France because of Mr. Prevot's legal problems, which left him feeling 'caged in' by probation requirements and IRS payments. [FN151] Ý The violence between Mr. and Ms. Prevot started after they arrived in France. [FN152]Ý Mr. Prevot beat Ms. Prevot 'badly' once at the beginning, and again not long thereafter, but the abuse subsided when Ms. Prevot's mother came to visit. [FN153]Ý After her mother's departure, the beatings occurred 'really frequently.' [FN154]Ý By the end of their relationship, the abuse would occur weekly, sometimes as much as three times a week. [FN155]Ý There was '[n]o pattern' to the beatings. [FN156] Ý The abuse was severe.Ý As Ms. Prevot states, 'He really beat me violently and always in front of the kids.Ý They were only one and three years old when the abuse started.' [FN157]Ý Mr. Prevot became 'vicious' when he sought to obtain the jewelry that Ms. Prevot had inherited. [FN158]Ý Ms. Prevot believed that he might kill her to obtain it. [FN159]Ý 'When I caught him standing over my son with his arms raised at him I knew I had to get out. ' [FN160]Ý The children were so traumatized by the family violence that they hardly spoke when they returned to the United States, despite the fact that they were two and four years old, respectively. [FN161] Ý As is typical of many abusers, Mr. Prevot isolated Ms. Prevot.Ý In France, he transferred all of the money out of the account to which she had access. [FN162]Ý He hid all of her identification, including her passports and the children's birth certificates. [FN163]Ý He told her that he had given the documents to a lawyer, and he refused to tell her the lawyer's name. [FN164]Ý Without identification, Ms. Prevot could not even cash checks. [FN165]Ý The family lived in a trailer in the country, and they had no car. [FN166]Ý Ms. Prevot stated, 'I felt very isolated.Ý It was just the children and me.Ý It was lonely and quiet.' [FN167]Ý Although Mr. Prevot did not live with them for the last three months of their time in France, he would come by and look in the closets to be sure that their possessionswere still there.Ý 'He wanted to ensure that we did not try to get away.' [FN168] Ý Ms. Prevot states that she left France when she 'realized after nine months that there was nothing to do to stop the violence.Ý It was only getting worse.' [FN169]Ý She had called the police, but the police did not help. [FN170]Ý They told her that there was no such thing as a restraining order. [FN171]Ý They said that because Ms. Prevot was still married to her husband, she could not change the locks on the residence, and she could not stop him from visiting the children. [FN172]Ý Ms. Prevot sought help from an attorney that had been recommended to her by the American consulate, but the attorney offered her no legal avenue to stop the violence. [FN173]Ý Her neighbors saw the abuse, but did nothing to stop it. [FN174]Ý A social worker came once to the house and told Ms. Prevot that there was little Ms. Prevot could do to stop the violence unless she had money to file for a divorce. [FN175]Ý 'No one cared, they just expected me to keep living like that.' [FN176]Ý Ms. Prevot stated that the abuse was 'so serious and violent and so horrible for me and the kids.Ý But there was no way out since I had no money and I wasn't French. Never should women and children have to take that.' [FN177]Ý She commented that had she been able to obtain public assistance and some sort of protection (e.g., even if she knew the police would arrest Mr. Prevot if he beat her up), she would have stayed in France and fought for custody there. [FN178] Ý Ms. Prevot decided that for her safety and for the well-being of her children, she and her children had to leave France. [FN179]Ý To facilitate their departure, Ms. Prevot sold some jewelry, and her mother sent her some money. [FN180]Ý Ms. Prevot used the money to apply for new passports. [FN181]Ý Friends brought over plastic bags filled with clothes and toys; she used these items to fill up her closets so that Mr. Prevot would not suspect his family's imminent departure. [FN182] Ý After Ms. Prevot left France with her two children and returned to the United States, Mr. Prevot instituted a Hague petition in the United States for the return of the children. [FN183]Ý Ms. Prevot lost at the trial court level. [FN184]Ý However, the appellate court reversed the trial court on a technicality. [FN185]Ý Because her husband was a felon, his departure from the United States made him a fugitive. [FN186]Ý The court held that he could not invoke the United States judicial machinery to obtain the return of his children. [FN187]Ý When Ms. Prevot was asked what she would have done had the appellate court upheld the lower court's order to return her children, she said, 'I would have returned with them because I'd never put my kids on an airplane without me.' [FN188]Ý She would return even though shestated, 'I know that he'd start beating me again.' [FN189] Ý Ms. Prevot's story provides a backdrop for evaluating the Hague Convention and its appropriateness for abductors who are domestic violence victims.Ý Had the appellate court not reversed the trial court on a technicality, the Prevot children would have been returned toFrance. This result would have been problematic for practical and philosophical reasons. Ý First, the return of the children to France would have placed Ms. Prevot in physical danger.Ý Even though the court may not have ordered her to return, Ms. Prevot stated that she would have returned to France with her children. [FN190]Ý Mothers who face the dilemma of being separated from their children or enduring 'innumerable financial and practical difficulties' in returning to the children's habitual residence, have chosen to return with their children and 'move heaven and earth' to do so. [FN191]Ý Many primary caretakers will not let their children travel without them back to the abusers' homeland. [FN192]Ý This attitude is undoubtedly reinforced by some judges' views that mothers have a 'parental duty to return with the child to minimize the child's instabilities.' [FN193]Ý Similarly, many parents will want or need to return for the custody proceedings.Ý The mere physical proximity of an abuser and his victim increases the likelihood of violence. [FN194]Ý Even if the court extracts an undertaking [FN195] from the left-behind parent that, pending the adjudication of custody, the mothermaintains physical custody of the children, the father forgoes visitation, and the father stays away from the mother, [FN196] this undertaking does not guarantee the mother's safety. [FN197] Ý Second, an order to return the children to the place where the domestic violence occurred gives the children, the batterer, and the victim harmful messages.Ý The explicit message is that domestic violence is irrelevant to the proceedings; the implicit message is that the system does not care about the abuser is actions.Ý This perspective reinforces the domestic violence victim's view that legal solutions will not help her, and further disempowers her.Ý It tells the batterer that the system will help him exercise power and control over his victim, and thereby reinforces his power. [FN198]Ý The children are taught that violence is rewarded, and that the system does not care about their mother's plight. Ý Third, the Convention's underlying philosophy or purpose is not served by its application to someone like Ms. Prevot.Ý A parent who abducts his or her children to another country because that parent fears losing a custody battle is in a fundamentally different moral position than a parent who abducts her children because the other parent endangers her life.Ý The remedy for the abduction should reflect this difference. [FN199]Ý In addition, applying the Convention to an individual like Ms. Prevot and sending her children back to France in no way provides a disincentive to other women who need to fleetransnationally to escape domestic violence.Ý The Convention seeks to discourage international abductions, but women concerned about preserving their lives are less concerned with the legal implications of the abduction than with their physical safety.Ý But if, by chance, women stay in an abusive situation because of the Convention'spotential application, then the Convention's primary goal of protecting children will be undermined. D. The Complete Picture Warrants Reexamining the Law Ý Given the relatively recent realization that abductors can be domestic violence victims, almost no attention has been given to what the law's response to these abductors should be. [FN200]Ý As one report indicated: ÝÝÝ Laws relating to parental abduction often fail to properly address the situation of parents who flee to protect themselves or their children from abuse.Ý In some instances, moreover, the laws may increase the risks to those who have been abused.Ý Bodies of law and public policy relating to parental abduction have developed independently from those relating to spouse and child abuse. [FN201] It is now time to explore how domestic violence victims who abduct their children are, and should be, treated under the Hague Convention. II. The Hague Convention on the Civil Aspects of International Child Abduction Ý The Hague Convention applies to any child who was 'habitually resident' in a Contracting State immediately before the left-behind parent's rights were violated. [FN202]Ý Its expressed objects are '[t]o secure the prompt return of children wrongfully removed to or retained in any Contracting State' and '[t]o ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ' [FN203] Ý The Convention provides different remedies for violations of rights of custody and rights of access. [FN204]Ý The remedy of return, whereby a child is returned to its habitual residence, is available solely for awrongful removal or retention of a child, and requires that the left- behind parent had rights of custody. [FN205]Ý Rights of access, in contrast, are vindicated in the state to which a child has been abducted. [FN206] Ý Article 12 provides the remedy of return: ÝÝÝ Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. ÝÝÝ The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. [FN207] The sine qua non of the return remedy is that it establishes the factual status quo prior to the abduction. [FN208]Ý The Convention explicitlyprohibits Contracting States from deciding the merits of a custody dispute until it has been determined that a child is not to be returned under the Convention. [FN209] Ý This Article is primarily concerned with the remedy of return and violations of rights of custody.Ý The remedy of return uniquely disadvantages domestic violence victims who have abducted their children--it reverses the accomplishment of the victim's flight by returning the child to the place from which the domestic violence victim has just fled.Ý The remedy puts the victim's most precious possession, her child, in close proximity to her batterer either without her protection (assuming she does not return with the child), or with her protection, thereby exposing her to further violence.Ý In contrast, the remedy of access can occur in the state to which the victim fled, [FN210] and can occur after the court imposes enforceable conditions for the abductor's safety. [FN211] Ý In addition, the remedy of return is an important tool by which batterers can harass and further control their victims.Ý The Hague Convention gives left- behind parents direct access to the courts; there is no screen by which abductors, in appropriate cases, might be relieved from having to respond to an application filed in court for their children's return.Ý Court access is assured despite the fact that the Convention's provisions are implemented through designated Central Authorities in each Contracting State, [FN212] and the Central Authority can refuse an application when the application manifestly fails to meet the requirements of the Convention or is 'otherwise not well founded.' [FN213]Ý The Central Authority's rejection of an applicationdoes not hamper an individual's ability to invoke the Convention on his own in the appropriate tribunal of the requested state. [FN214]Ý Direct applications, in fact, 'occur quite frequently.' [FN215] The simplicity and speed with which the Convention operates, as well as the legal aid available for petitioners but not for respondents, [FN216] helps to make the remedy of return a particularly powerful legal weapon for batterers. [FN217] B. The General Irrelevance of Domestic Violence to the Hague Convention's Remedy of Return Ý The Convention makes almost every domestic violence victim who goes abroad with her child subject to the remedy of return.Ý While a petitioner has to establish a prima facie case under the Convention to obtain relief, the two most important requirements, that the child be 'wrongfully removed' from its 'habitual residence,' are easily satisfied.Ý Common sense might dictate that a victim who removes her child from a country in order to escape domestic violence has not engaged in a 'wrongful removal' or that a mother who removes her child from a place where the mother has been forced to live, under penalty of death by her child's father, has not removed the child from the child's 'habitual residence,' but the case law of the Hague Convention sometimes lacks common sense. Ý The remedy of return applies when there is a 'wrongful removal or retention.' [FN218]Ý Article 3 of the Convention defines the removal or retention as 'wrongful' when the removal or retention is 'in breach of rights of custody,' and 'those rights were actually exercised.' [FN219] Ifa parent has rights of custody, that parent is presumed to have been exercising those rights. [FN220]Ý Therefore, it is most important to focus on the interpretation of 'rights of custody.'Ý Article 5 of the Convention defines 'rights of custody' to 'include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.' [FN221]Ý In addition, Article 3 states: 'The rights of custody . . . may arise in particular by operation of law or by reason of a judicial or administrative decision,or by reason of an agreement having legal effect under the law of that State.' [FN222]Ý Missing from the definition of 'wrongful,' either explicitly or implicitly through the interpretation of 'rights of custody,' is any sort of exclusion for justifiable abductions. Ý 'Rights of custody' may appear, at first blush, to be a narrow legal term, but the term has consistently received a wide interpretation.Ý The definition of 'rights of custody' in Article 5 is 'non-exhaustive.' [FN223]Ý In addition, although Article 3 states that 'rights of custody' are to be determined 'under the law of the State in which the child was habitually resident immediately before the removal or retention,' [FN224] this limitation has been disregarded.Ý Rather, ÝÝÝ The key concepts which determine the scope of the Convention are not dependent for their meaning on any single legal system.Ý Thus the expression 'rights of custody,' for example, does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention. [FN225] Most domestic violence victims who take their children across international borders without their batterers' consent breach their abusers' 'rights of custody.'Ý For example, the Convention makes pre-decree removals wrongful when the left-behind parent has custody rights ex lege either under the internal law of the state of the child's habitual residence or the law designated by the conflict rules of that state. [FN226]Ý When the laws of two states produce divergent answers, the Explanatory Report by Elisa Perez- Vera, [FN227] an authoritative document on the Convention's meaning, [FN228] instructs courts to follow the law that would establish custody rights. [FN229]Ý Pre-decree abductions are the most common type of abduction, [FN230] and are probably disproportionately common among domestic violence victims who abduct their children. [FN231]Ý By making these removals potentially 'wrongful,' [FN232] the Hague Convention goes well beyond common law [FN233] and traditional criminal law in the United States. [FN234] Ý Even a woman with court-awarded physical and legal custody can engage in a wrongful removal when she goes abroad with her child without the other parent's permission.Ý A post-decree removal is wrongful if the left-behind parent has joint legal custody, [FN235] an increasingly common judicial award in the United States and abroad. [FN236]Ý In addition, if the custodial parent must obtain permission from the court or non-custodial parent before moving, a removal without the requisite permission is 'wrongful.' [FN237]Ý This can be true even if the left-behind parent only has rights of access. [FN238] Ý In addition, a woman with sole legal and physical custody may engage in a wrongful removal, even if the non-custodial parent had no court-ordered rights of access, if she and the non-custodial parent have derogated from the terms of the custody order.Ý A private custody agreement between the woman and her batterer may supersede the judicial award for purposes of the Convention. Article 17 makes clear, 'The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention. ' [FN239]Ý Article 3 allows rights of custody to arise 'by reason of an agreement having legal effect under the law of that State.' [FN240]Ý 'Having legal effect' itself has a broad definition.Ý The Perez-Vera Report indicates that the phrase includes 'any sort of agreement which is not prohibited by such a law and which may provide a basis for presenting a legal claim to the competent authorities.' [FN241] Ý Finally, the peculiarities of foreign law may also expand the concept ofÝ 'rights of custody,' despite a seemingly straightforward award of physical and legal custody to the abductor. [FN242]Ý For example, although a court may award custody of the child to one parent, the court's retention of jurisdiction to resolve custody disputes may confer on the court 'rights of custody,' [FN243] which may make wrongful a removal by the custodial parent without the court's permission, and thereby enable a batterer to petition for the remedy of return. [FN244] Ý A broad reading of 'rights of custody' helps deter child abduction.Ý Yet general deterrence does not discriminate.Ý Among those deterred may be domestic violence victims who need to find safety transnationally with their children because they can not receive adequate protection from the courts in their children's habitual residence, including a court's permission to depart for reasons of safety.Ý A broad reading also insulates a batterer's chosen forum when neither party has yet invoked that country's courts (pre-decree abductions), or when the courts in the child's habitual residence have awarded the domestic violence victim sole physical and legal custody and yet some residual rights in the batterer allow him to veto a domestic violence victim's departure with the children (if not expressly, then by successfully invoking the Hague Convention). Ý Before an application for the return of the child will be successful, the applicant must satisfy a threshold issue: that the child has been taken from his or her habitual residence. [FN245]Ý If the child has been taken to his or her habitual residence, a prima facie case cannot be made out.Ý The term 'habitual residence' is not defined in the Convention.Ý The Convention's commentary suggests that the term was intended to invoke a purely factual inquiry [FN246] to assess 'the centre of the child's life.' [FN247] Ý Domestic violence victims who have abducted their children have argued that a child's habitual residence cannot be a place where the child's primary caretaker is forced to live by virtue of domestic violence.Ý This argument was made in In re Ponath [FN248] and Nunez-Escudero v. Tice-Menley, [FN249] with very different results.Ý These cases indicate that courts have tended to take extreme positions in resolving the argument: either domestic violence is always relevant or domesticviolence is never relevant.Ý The best approach may rest somewhere in between these two extremes. Ý Ponath involved an American woman and a German man who married each other in the United States. [FN250]Ý They had a child in the United States and then traveled to Germany when the child was approximately four months old. [FN251]Ý They initially went to Germany only to visit the man's family, and had purchased return-trip tickets. [FN252]Ý While in Germany, the man found employment and began building a house. [FN253]Ý After three months in Germany, the woman wanted to return to the United States with the child, 'but Petitioner refused to permit her and the minor child to return.Ý Petitioner prevented and continued to prevent respondent and the minor child's return to the United States by means of verbal, emotional and physical abuse. ' [FN254]Ý 'Some months later,' the father permitted the petitioner and the child to leave Germany; the mother and child returned to Utah approximately ten months after they arrived in Germany. [FN255] Ý The father filed a petition with the federal district court in Utah for the return of the child, which the court denied. [FN256]Ý The court made the factual determination that the child's habitual residence was the United States. [FN257]Ý The court determined that 'the desires and actions of the parents cannot be ignored,' [FN258] and it held that 'habitual residence must . . .entail some element of voluntariness and purposeful design, ' [FN259] as well as a 'settled purpose.' [FN260]Ý The court concluded that, 'Petitioner's coercion of [R]espondent by means of verbal, emotional and physical abuse removed any element of choice and settled purpose which earlier may have been present in the family's decision to visit Germany.' [FN261] The district court explained: ÝÝÝ The aim of the Hague Convention is to prevent one parent from obtaining an advantage over the other in any future custody dispute.Ý For the court to grant petitioner's motion, and thereby sanction his behavior in forcing continued residence in Germany upon respondent, and through her, the minor child, would be to thwart a principle [sic] purpose of the Hague Convention. [FN262] The court's reasoning has intuitive appeal. After all, forum shopping using coercion should not be tolerated any more than forum shopping by abduction, which the Hague Convention deems unacceptable.Ý To the extent that the mother and father never agreed to make Germany the child's habitual residence, Ponath is the correct result.Ý Ponath demonstrates that the factual determination of a child's 'habitual residence' provides courts an adequate mechanism to address the situation where a woman is coerced to go to a country or forced to remain there when she intended the trip only to be a visit. Ý Yet, to the extent that the parties in Ponath agreed to stay in Germany, and the domestic violence erupted subsequent to their agreement, [FN263] Ponath may go too far.Ý If one reads the facts in this way, then the court's decision in Ponath implies that any amount of domestic violence that prevents departure can erase an otherwise valid habitual residence.Ý While domestic violence is wrong, it perhaps goes too far to say that domestic violence can vitiate an otherwise valid habitual residence.Ý Otherwise, any self-help used to stop an impending abduction might prohibit later recourse to the Hague Convention. This result seems at odds with the expansive application of the Convention generally. Ý While some U.S. courts cite Ponath, [FN264] no court has followed the more expansive interpretation of the decision.Ý In fact, other courts explicitly reject the approach.Ý For example, the Eighth Circuit specifically rejected it in Nunez-Escudero v. Tice-Menley. [FN265]Ý There Stephanie Rose Tice-Menley, a United States citizen, left Mexico and her Mexican husband, Enrique Nunez-Escudero, for her parents' home in Minnesota, taking with her the couple's then six-week-old child. [FN266]Ý She alleged that her husband 'physically, sexually and verbally abused her, and that she was 'treated as a prisoner' by her husband and father-in-law.' [FN267]Ý She claimed that she was not allowed to leave the house without her husband or father-in-law. [FN268]Ý There were also allegations regarding the child's safety.Ý Her husband and his family allegedly objected to her nursing the baby, and the husband refused to acquire a car seat for the child. [FN269]Ý Tice-Menley had argued 'she had no intention of remaining in Mexico and had no choice in living there because her husband and father-in-law made her a virtual prisoner. ' [FN270]Ý As she 'lost the fundamental right of freedom of movement,' she argued that neither she nor her six-week old nursing infant 'had a voluntary habitual residence in Mexico.' [FN271] Ý The Eighth Circuit rejected Tice-Menley's argument as an independent basis on which to affirm the trial court's decision not to return the child. [FN272]Ý The appellate court cited Friedrich v. Friedrich for the proposition that "[t]o determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.'' [FN273]Ý The court rejected Tice-Menley's argumentthat the reasoning in Ponath should guide the court in her case. [FN274]Ý The Eighth Circuit distinguished Ponath, explaining that the child in Ponath was born and lived in the United States before visiting Germany. [FN275]Ý In Nunez-Escudero, however, 'the baby was born and lived only in Mexico' until the abduction. [FN276] Ý The Eighth Circuit's attempt to distinguish Ponath is fairly unconvincing.Ý The Ponath court held that the child's habitual residence was the United States, but the child in Ponath arguably had more of a connection to Germany than the United States.Ý The child was born in the United States, but lived there for only four months. [FN277]Ý The child also had lived in Germany for ten months before the abduction. [FN278]Ý More importantly, the court in Ponath arguably suggested that a voluntary change of habitual residence was then vitiated by the domestic violence. [FN279]Ý By analogy, the domestic violence in Nunez should have vitiated the mother's initial consent to live in Mexico and to have her child there.Ý The Eighth Circuit, however, feared the consequences of Ponath and refused to apply it: 'To say that the child's habitual residence derived from his mother would be inconsistent with the Convention, for it would reward an abducting parent and create an impermissible presumption that the child's habitual residence is wherever the mother happens to be.' [FN280] Ý One can imagine a compromise between the extreme interpretations of both Ponath and Nunez, an interpretation where domestic violence is relevant to determining the child's habitual residence, butis not always determinative.Ý Courts should continue to focus on the child when determining the child's habitual residence, but perhaps also acknowledge the factual reality that the habitual residence of a child of tender years derives from the habitual residence of the child's primary caretaker. [FN281]Ý Courts could also follow the narrow interpretation of Ponath: where the primary caretaker never intended to travel to or live in the country from which she later fled, and went or stayed there only by force or coercion, then neither the primary caretaker's habitual residence nor the child's habitual residence was ever established in that country. [FN282]Ý To hold otherwise would reward the abuser and allow him to forum shop through violence. [FN283] Ý On the other hand, one need not accept the more extreme reading of Ponath, i.e., that a habitual residence once voluntarily established by the primary caretaker and the child can be vitiated by a later onset of domestic violence.Ý Individuals who voluntarily choose to live in a country should be held to have accepted that country's legal system for any contingencies that might arise there. [FN284]Ý Requiring that a child custody dispute be resolved in the forum does not reward the partner for his abuse because the domestic violence victim could not establishÝ a new habitual residence for the child without the other parent's consent, or litigate custody in another forum, even without his abuse.Ý The key inquiry, therefore, is whether the habitual residence was voluntarily established. Ý Admittedly, such an approach would not have helped someone in the position of Ms. Prevot. [FN285]Ý A year after the Prevots settled in France, Mr. Prevot isolated Ms. Prevot and began abusing her violently. [FN286]Ý He took her identification, including her and the children's passports, so that she and the children could not leave the country. [FN287]Ý Ms. Prevot responded to her husband's petition for the children's return by arguing that France was not the children's habitual residence because the children's residence was 'coerced' by taking their passports. [FN288]Ý She cited Ponath in support of her argument. [FN289]Ý The trial court rejected her argument, emphasizing that the visit to Germany by the Ponath family was purportedly temporary; it was during the visit that the husband's abusive actions prevented the wife from returning to the child's habitual residence. [FN290]Ý In contrast, the court found that the Prevot family went voluntarily to France to settle permanently, and after one year there difficulties arose. [FN291] Ý Assuming the distinction is accurate, [FN292] there is a way that courts could interpret 'habitual residence' to aid someone like Ms. Prevot.Ý A legitimately established habitual residence should cease to exist when there is violence, when insufficient assistance exists in that location to end the victim's abuse, and the victim leaves the jurisdiction for safety reasons. People expect countries that are parties to the Hague Convention to have effective remedies against domestic violence, although not all countries do. [FN293]Ý To hold that a voluntarily established residence endures regardless of the subsequent violence against the victim and the systemic failure to address that violence, renders what was initially a voluntary choice a virtual death sentence.Ý Recall that Ms. Prevot sought help, but found no protection in France from Mr. Prevot's violence.Ý She would have litigated custody in France had she received protection, but she and her children departed for the United States to ensure her physical safety. Ý A court could obtain this result through established doctrine.Ý Employing the language of Lord Scarman, a court could recognize that habitual residence must be voluntarily adopted and maintained: 'enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity to escape, may be so overwhelming a factor as to negate the will to be where one is.' [FN294]Ý A victim of domestic violence who finds herself in aforeign country without adequate assistance is like a person stranded on a desert island.Ý She has no opportunity to escape the violence, and that negates her will to be where she is, even if she initially went there voluntarily.Ý After all, Robinson Crusoe's voyage was voluntarily undertaken. [FN295] Ý 'Settled purpose' may also prove useful to domestic violence victims who find themselves in a different type of factual scenario, such as those victims whose batterers eventually permit them to leave, but then petition for the children's return.Ý For example, a contrite batterer might agree that his victim and the children should visit the victim's family in another country, and this consent may alter the child's habitual residence.Ý Courts have held that this type of agreement is sufficient to change the child's habitual residence. [FN296] Consider Levesque v. Levesque. [FN297]Ý There the child had been living alternately in the United States and Germany her entire life, spending almost the same amount of time in both locales.Ý The girl was born in Germany and lived there for approximately two years. [FN298]Ý She then lived in the United States for one year. [FN299]Ý She then traveled to Germany with her mother for approximately five weeks, after which she returned to the United States for another five weeks. [FN300]Ý She then returned to Germany with her mother, and about three weeks later, her father took her, without the mother's permission, to the United States. [FN301]Ý Within four hours, the mother obtained a German court order awarding her the right to determine the child's residency. [FN302]Ý Approximately seven months later, the mother filed a petition in Kansas for the return of the child to Germany. [FN303] Ý The Kansas court granted the petition for the return of the child, finding that the child's habitual residence was Germany. [FN304]Ý It specifically mentioned that the husband knew that the mother's last trip to Germany with the child was because of their marital problems, and that he did not know when the child would return. [FN305]Ý The court found it unnecessary to decide whether the mother had said she was going onlytemporarily to Germany. [FN306]Ý The court emphasized that even if the father had been misled and thought that the child would return to the U.S. after a short time, the child's habitual residence had shifted: ÝÝÝ [B]oth parents agreed that [the child] would return to Germany for some period of time with Vallery.Ý The amount of time was left open and [the father] agreed that [the child] should go with [the mother].Ý These arrangements had been agreed to and 'amounted to a purpose with a sufficient degree of continuity to enable it properly to be described as settled.' [FN307] The court found that when the mother and child returned to Germany at the beginning of the five-week period, and then at the beginning of the final three-week period, they had 'an intent to remain, at least for a period of time which was indefinite,' and that their presence in Germany was by mutual agreement. [FN308] Ý Levesque's usefulness, however, should not be overstated.Ý First, the father's consent, here relevant to the child's habitual residence, is more typically analyzed as relevant to the 'consent' defense specifically set forth in the Convention. [FN309]Ý While a Hague Convention petitioner bears the burden of proof on the issue of a child's habitual residence, abductors typically have the burden of proof on the 'consent' defense.Ý The Levesque-type argument may be more difficult to win when the abductor bears the burden of proof.Ý Second, batterers like to maintain power and control, and they typically isolate their victims. [FN310]Ý Few batterers may approve of their victims going abroad, even if the batterers are contrite.Ý Third, few battered women are likely to broach the subject of a potential departure, for it may be life-threatening to inform their abusers that they want to depart with the children.Ý For example, Maria Foldes, a respondent to a Hague petition, fled to the United States to escape domestic abuse and said that she 'feared that [the petitioner] would physically abuse her if he knew that she was leaving Hungary. ' [FN311] Ý Either of these solutions could allow courts to avoid the rigid application of the Hague Convention to some domestic violence victims who abduct their children and who may, in fact, havevoluntarily agreed to change the child's habitual residence.Ý However, the above interpretations of the term admittedly complicate what would otherwise be a simple factual determination, and there is great reluctance to make habitual residence a technical concept. As the Family Division of the High Court of Justice said in Bates, and as has been repeated in this country, [FN312] ÝÝÝ It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common law domicile.Ý The facts and circumstances of each case should continue to be assessed without resort to presumptions or pre-suppositions. [FN313] Therefore, the interpretations suggested above may meet with resistance. Ý On the other hand, the interpretations suggested above do not create new legal rules; they just make more facts relevant to the evaluation of what constitutes the child's habitual residence.Ý Ignoring the information does not avoid presumptions or pre-suppositions, but rather fosters conflicts between courts and jurisdictions trying to grapple with the issue.Ý Minimizing such conflicts would further one of the drafters' goals, for they purposefully chose not to define 'habitual residence' in order to reduce the 'rigidity and inconsistencies as between different legal systems,' which can be caused by 'technical rules.' [FN314] Ý The Convention sets forth several defenses to Article 12's remedy of return.Ý Article 12 itself contains the 'well-settled exception' that a court need not return a child if one year has elapsed since the wrongful removal or retention and the child is now settled in his or her new environment. [FN315]Ý In addition, a country is not required to return the child if the person seeking the child's return 'was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.' [FN316]Ý Also, the court need not return the child if '[t]here is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in anintolerable situation.' [FN317]Ý A child need not be returned if the child objects to being returned and is of an age and maturity to understand the situation.Ý Finally, the Convention permits a court to refuse to return a child if required by 'the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ' [FN318] Ý A defensive approach will not necessarily aid the domestic violence victim.Ý While a mother's flight from domestic violence might seem like an appropriate reason not to return the child, the Convention's defenses generally are not interpreted to prevent the remedy of return in this situation.Ý Moreover, the court retains the discretion to return the child even when one of the defenses enumerated above is made out. [FN319]Ý Finally, these defenses are exclusive: [FN320]Ý no forum non conveniens or domestic violence defense exists, nor is it relevant what is in the best interest of the child. Ý One of the principal ways that a domestic violence victim could potentially defeat the remedy of return is by arguing the 'grave risk' of harm defense found in Article 13(b). [FN321]Ý Domestic violence is a 'recurring fact pattern[]' for parties who invoke the defense. [FN322]Ý A successful defense requires that the 'return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.' [FN323]Ý In evaluating the defense, the court must consider 'the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.' [FN324] Ý At first blush, the defense appears useful for domestic violence victims because domestic violence between a child's parents can harm the child. [FN325]Ý While such an argument occasionally works, and it seemsto be working with increasing frequency, the defense typically succeeds only in cases where there is more direct abuse of the children by the left-behind parent. [FN326]Ý For example, in Blondin v. DuBois, [FN327] the court applied the defense to stop the return of two children to France. While chronicling the domestic violence against the mother, the court recited facts that emphasized how the father's abuse of the mother was also directed at the children.Ý For example, the father would hit the mother when the child was in her arms so that the child would also 'get blows.' [FN328]Ý The father 'screamed at and frequently hit [the daughter], sometimes . . . with a belt. ' [FN329]Ý The father abused the mother when she was pregnant. [FN330] The father beat the mother 'in front of the children and he often threatened to 'kill everyone.'' [FN331]Ý He once threatened to throw his son out of the window. [FN332]Ý The seven-year-old daughter testified 'that she did not want to return to France because 'I don't want my daddy to hit me.' ' [FN333]Ý In permitting the Article 13(b) defense, the court conveyed its fear that the father would expose the children to physical or psychological harm if they were returned. [FN334] Ý Less typical is a case like Pollastro v. Pollastro, [FN335] where the Ontario Court of Appeals accepted the argument that domestic violence perpetuated against the parent harms the child. [FN336]Ý The record in that case was replete with evidence of physical and emotional abuse 'directed primarily at the parent who removed the child.' [FN337]Ý The court drew two connections between the abuse directed at the parentand the danger to the child.Ý First, the court found that the mother's well-being was integral to the well-being of her infant child: ÝÝÝ [T]he threatening phone calls reflect a continuing inability on the father's part to control his temper or hostility.Ý This means that the mother, who would inevitably accompany the child if he is ordered to return to California, would be returning to a dangerous situation.Ý Since the mother is the only parent who has demonstrated any reliable capacity for responsible parenting, [the child's] interests are inextricably tied to her psychological and physical security.Ý It is therefore relevant in considering whether the return to California places the child in an intolerable situation, to take into account the serious possibility of physical or psychological harm coming to the parent on whom the child is totally dependent. [FN338] Second, the court recognized that an abuser might inadvertently, or even intentionally, also harm the child: ÝÝÝ There is also evidence that returning [the child] to California represents a grave risk of exposure to serious harm to [the child] personally.Ý The father's hostility, irresponsibility and irrational behaviour are ongoing.Ý Although John Pollastro has not been overtly physically violent to his son, he has been violent and had temper outbursts when his wife has been with the child.Ý On one occasion, for example, he threw hot coffee at her, narrowly missing their 7-day-old son whom she was holding. [FN339] Pollastro is truly unique because the court did not mention, although neither may have the parties, the legal protection that Ms. Pollastro could have obtained upon her return to California. Ý Walsh v. Walsh [FN340] is an American case where the court adopts reasoning that straddles Blondin and Pollastro. [FN341]Ý In Walsh, the First Circuit reversed the district court's decision that an Article 13(b) defense was not established.Ý The appellate court found that the district court 'inappropriately discounted the grave risk of physical and psychological harm to children in cases of spousal abuse.' [FN342]Ý Specifically, the district court erred by ignoring the violence, claiming that it was not directed at the children. [FN343]Ý The appellate court emphasized that the children had witnessed the assaults, and that 'both state and federal law have recognized that children are at increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser.' [FN344]Ý The First Circuit also mentioned the potential direct risk to the children from the batterer, although the father had never abused them. [FN345]Ý The court noted that the batterer ignored 'the bonds between parent and child or husband and wife, which should restrain such behavior,' that the batterer had assaulted much younger strangers, and that 'credible social science literature establishes that serial spousal abusers are also likely to be child abusers. ' [FN346] Ý In contrast to Blondin, Pollastro, and Walsh, courts often view domestic violence against a parent as irrelevant to the Article 13(b) defense.Ý An excellent example is Tabacchi v. Harrison. [FN347]Ý In Tabacchi, there was extensive spousal abuse. [FN348]Ý Among other things, Tabacchi, Harrison's husband, slapped her, choked her, punched her in the head and face, and pushed her. [FN349]Ý Harrison eventually left Italy with the couple's child and traveled to the United States to live with her brother. [FN350]Ý Tabacchi brought an action for the return of the child pursuant to the Hague Convention. [FN351]Ý A social worker testified that Tabacchi's assaults caused Harrison to suffer post-traumatic stress disorder, [FN352] and that she might reexperience the disorder 'if she had to return to Italy where she might be reminded of her history of problems with Tabacchi and his family, even if Harrison had custody of [the child], her own car, and her own home. ' [FN353] Ý Harrison argued that an Article 13(b) defense existed because the child would also suffer physical and psychological harm if returned. [FN354]Ý She cited Tabacchi's history of domestic abuse in support of her argument. [FN355]Ý The court rejected Harrison's argument, citing Nunez- Escudero, [FN356] and held that it was irrelevant 'who is the better parent inthe long run, or whether [Harrison] had good reason to leave her home . . . and terminate her marriage, or whether [Harrison] will suffer if the child she abducted is returned to [Italy].' [FN357] Ý As to the risk of physical harm to the child, the court said, 'the primary risk of physical harm is to Harrison, not to [the child].' [FN358]Ý The court acknowledged that the child was present when some of the physical abuse occurred, but minimized this fact by saying that the child was present on 'only two of these occasions,' [FN359] and that the child 'was not harmed during any of these altercations.' [FN360]Ý The court was blinded to the real risk of injury that existed for the child.Ý On one of the two occasions, Tabacchi hit Harrison in the face while Harrison held the child. [FN361]Ý On the other occasion, Tabacchi tried to choke Harrison while she |