FFoorrddhhaamm LLaaww RReevviieeww Volume 69 Issue 2 Article 6 2000 IInntteerrnnaattiioonnaall CChhiilldd AAbbdduuccttiioonn aanndd tthhee EEssccaappee ffrroomm DDoommeessttiicc VViioolleennccee Merle H. Weiner Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Merle H. Weiner, International Child Abduction and the Escape from Domestic Violence, 69 Fordham L. Rev. 593 (2000). Available at: https://ir.lawnet.fordham.edu/flr/vol69/iss2/6 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. INTERNATIONAL CHILD ABDUCTION AND THE ESCAPE FROM DOMESTIC VIOLENCE Merle H. Weiner 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 .... It was so serious, and so violent, and so horrible for the kids .... 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.' INTRODUCTION 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. Every state now makes civil protection orders available to victims,2 treats domestic abuse as a crime,' and considers domestic violence relevant to the "Merle H. Weiner, Associate Professor of Law, University of Oregon School of Law. J.D., Harvard Law School, 1990; LL.M., Cambridge University, 1988: B.A. Dartmouth College, 1985. Thanks to Professors William Duncan, Leslie Harris, Eugene Scoles and Linda Silberman for their helpful comments. A special thanks to my Iowa research assistants (Jeannine Harms, Tamara Hoffstatter, and Cleveland Tyson) and to my Oregon research assistants (Sharon Griffin, Susan Kang, Devorah Signor, and Ross Williamson). This project was completed with the generous support of the University of Oregon's Office of Research and Faculty Development. 1. Telephone Interview with Debra Mosesman Prevot, Respondent in Prevot v. Prevot, 855 F. Supp. 915 (W.D. Tenn. 1994), revid, 59 F.3d 556 (6th Cir. 1995) (June 26, 1997) [hereinafter Prevot Telephone Interview]. 2. See Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L Rev. 801, 843 n.204 (1993) (citing states' statutes). 3. Some states have criminal provisions specifically directed to domestic violence perpetrators. See, eg., Alaska Stat. § 11.41.220 (Michie 1998): Ark. Code Ann. §§ 5- 26-303 to 309 (Michie 1997); Cal. Penal Code § 243(c)(1) (West 1992); Idaho Code § 18-918 (Michie 1997); 720 Ill. Comp. Stat. 5/12-3.2 (1993): Iowa Code § 708.2A (1993); Mich. Comp. Laws § 750.81 (Supp. 2000); Minn. Stat. § 609.2242 (Supp. 2000): Mont. Code Ann. §§ 46-6-601 to 603 (1999); N.M. Stat. Ann. §§ 30-3-12-16 (Michie 1978); Ohio Rev. Code Ann. § 2919.25 (Anderson 1996); S.C. Code Ann. §§ 16-25-20 & 16- 25-65 (Law. Co-op. 1985 & Supp. 1999); Vt. Stat. Ann. tit. 13, §§ 1043-1044 (1974 & Supp. 1999); Va. Code Ann. § 18.2-57.2 (Michie 1996); W. Va. Code § 61-2-28 (1997). Other states make clear in their criminal codes that law enforcement agencies should treat domestic abuse the same as crimes occurring between strangers. The legislatures from these states indicate that the regular criminal laws should be sufficient to deal with the problem of domestic violence and they do not enact statutes 594 FORDHAM LAW REVIEW [Vol. 69 adjudication of child custody.4 The federal government also has made tremendous strides in recognizing and addressing the problem of domestic violence. The United States is not the only country tackling the problem of domestic violence. Various solutions are being implemented around the world. In certain places, the legislative and judicial response has been pronounced.6 Reformers now are focusing attention on to make domestic assault its own crime. See, e.g., R.I. Gen. Laws § 12-29-1 (1994); Tenn. Code Ann. § 36-3-618 (1996); Wash. Rev. Code § 10.99.010 (1990). 4. Two-thirds of the states have laws requiring that evidence of domestic violence be considered in custody determinations. See Principles of the Law of Family Dissolution: Analysis & Recommendations, § 2.13, reporter's notes, cmt. c (Tentative Draft No. 3, Part 1, 1998) (citing cases therein). Other states reach the same result through case law. See Joan Zorza, Protectinga Battered Woman's Whereabouts From Disclosure, Domestic Violence Rpt., Oct./Nov. 1995, at 3 ("[e]very state now has case law allowing courts to consider domestic violence in their custody decisions"); see also Nancy K. D. Lemon, Custody and Visitation Trends in the United States in Domestic Violence Cases, in Children Exposed to Domestic Violence: Policy Development and International Issues 329 (2000) (discussing how domestic violence is treated in custody and visitation cases). 5. Beginning in the mid-eighties, Congress passed legislation to address the problem of domestic violence and to help ensure domestic violence victims' safety. See, e.g., the Family Violence Prevention and Services Act of 1984, 42 U.S.C. § 10401 (authorizing the expenditure of $65 million to help states provide shelter for victims of domestic violence and to coordinate research, training and clearinghouse activities); the Crime Victims Fund Act of 1984, 42 U.S.C. § 10601 (providing federal money for both crime victim compensation and state agency services for domestic abuse victims). Congressional efforts continued in the 1990s. See, e.g., Indian Child Protection and Family Violence Prevention Act, Pub. L. No. 101-630, 104 Stat. 4544 (1990); Battered Women's Testimony Act of 1992, Pub. L. No. 102-527, 106 Stat. 3459 (1992); Child Abuse, Domestic Violence, Adoption and Family Services Act of 1992, Pub. L. No. 102-295, §§ 306, 317, 319, 106 Stat. 187 (1992); International Parental Kidnapping Crime Act of 1993, Pub. L. No. 103-173, § 2, 107 Stat. 1998 (1993); Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902 (1994) [hereinafter VAWA]. After VAWA was enacted, Congress continued to pass new legislation addressing issues related to domestic violence. See, e.g., Pub. L. No. 101-112, 103 Stat. 685 (1989) (declaring October National Domestic Violence Awareness Month); Pub. L. No. 104- 191, 110 Stat. 1936 (1996) (preventing insurance discrimination based on domestic violence); Pub. L. No. 104-201, § 1069, 110 Stat. 2655 (1996) (creating the crime of interstate stalking); Pub. L. No. 104-208, 110 Stat. 3004 (1996) (providing vital public health services for victims of domestic abuse); Pub. L. No. 104-208, 110 Stat. 3009-371- 72 (1996) (making the possession of firearms criminal for those convicted of a misdemeanor crime of domestic violence); Pub. L. No. 105-244, § 821, 112 Stat. 1581 (1998) (providing funding for the prevention of violent crimes against women on campus); Pub. L. No. 105-276, § 514, 112 Stat. 2461 (1998) (stating Congress' preference that victims of domestic violence receive priority for public housing assistance). 6. See, e.g., Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, 1999 Country Reports on Human Rights Practices, at Belgium, Colombia, Honduras, Hungary, Israel, Italy, Mexico, Panama, Spain, New Zealand, South Africa, Venezuela § 5 (Feb. 25, 2000) available at http://www.state.gov/www/globalhuman-rights/1999.hrp-report/99hrp-report-toc.ht ml [hereinafter 1999 Country Reports on Human Rights]. See generally Ed Schollenberg & Betsy Gibbons, Domestic Violence Protection Orders: A Comparative 2000] ESCAPE FROM DOMESTIC VIOLENCE 595 countries where legal protection is nonexistent, or where reform has been incomplete or slow.7 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. In 1993, Geoffrey Greif and Rebecca Hegar published a study of 368 left-behind parents whose children were abducted by the other parent.8 The study revealed that mothers constituted the majority of abductors, contrary to previous assumptions. Their study also indicated that "the marriages of the parents tended to be characterized by domestic violence."9 They found that, some abducting parents in our study were fleeing abuse of themselves or their children. 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. 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." Review, 10 Can. J. Fain. L. 191 (1992) (comparing civil protection order schemes in Australia, New Zealand, Great Britain and the United States). See also Judith Armatta, Getting Beyond the Law's Complicity in Intimate Violence Against Women, 33 Willamette L. Rev. 773, 807-08 (1997) (citing constitutional provisions addressing domestic violence, explicitly or implicitly, in Brazil, Colombia, Ethiopia, Vietnam and Uganda). Armatta provides a helpful survey of criminal and civil protections for abused women in numerous countries. Id. at 808-32. 7. See eg., Armatta, supra note 6, at 782-805 (reviewing "legal complicity" of many countries in domestic violence); Isabel Marcus, PreliminaryC omments on Dark Numbers: Research on Domestic Violence in Central and Eastern Europe, 21 U. Ark. Little Rock L. Rev. 119, 125 (1998) (discussing the respondents' estimate of the incidence of violence for all women in Poland (30-40%), Hungary (25-30%), Russia (50-75%), and Romania (20-25%)); Julie Mertus, Human Rights of Wozmen in Central and Eastern Europe, 6 Am. U. J. Gender & L. 369, 410-23 (1998) (discussing legal response to family violence in Albania, Bulgaria, Croatia, Czech Republic, Hungary, Kosovo, Poland, Romania, Russia, and Serbia); Adrien Katherine Wing, A Critical Race Feminist Conceptualization of Violence: South African and Palestinian Women, 60 Alb. L. Rev. 943, 957-58 (1997) (describing limitations of the Prevention of Family Violence Act in South Africa). For disturbing accounts of the ways in which legal systems can seriously fail to address domestic violence, see infra notes 139, 141 and Dorothy Q. Thomas & Michele E. Beasley, Domestic Violence as a Human Rights Issue, 58 Alb. L. Rev. 1119 (1995). & See Geoffrey L. Greif & Rebecca L. Hegar, When Parents Kidnap 18-19 (1993). 9. Id Violence was present in 54% of the relationships. Id. at 36; see also Geoffrey L. Greif, Impact on Children of InternationalA bduction, in American Bar Association Center on Children and the Law, North American Symposium on International Child Abduction: How to Handle International Child Abduction Cases 2-3 (1993) [hereinafter How to Handle International Child Abduction Cases]. 10. Greif & Hegar, supra note 8, at 268-69. Greif and Hegar also found that the incidence of domestic violence in relationships that experience child abduction is twice as high as compared with domestic violence in the general population, and higher than the violence experienced among divorcing couples. See id. at 30. Most left-behind parents claimed to be the sole victim, "with a handful describing 596 FORDHAM LAW REVIEW [Vol. 69 The same year that Greif and Hegar published their study, the United States Congress recognized that abductors sometimes flee to escape domestic violence. In passing the International Parental Kidnapping Crime Act of 1993, Congress provided an explicit defense for parents fleeing from domestic violence."1 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"), 2 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."'3 The formal recognition that child abductors can be victims of domestic violence is relatively recent.14 This raises concerns about the themselves as the sole perpetrator or claiming that both parents were violent." Id. In fact, the abductor was reportedly the only violent partner 90% of the time. See id. at 36. Greif and Hegar's statistic undoubtedly underestimates the number of left-behind parents who are perpetrators. Their data was obtained from fourteen organizations in the United States and Canada whose sole purpose was to help parents search for missing children. Id. at 16. "[P]arents who are wanted by the police, have a police record, or have battered their spouses or children are less inclined to provide the background information and documentation that missing children's organizations often require." Id. at 17. In addition, survey respondents naturally desire to place themselves in the best light possible when answering the questions, and there was no benefit to admitting being violent. In fact, approximately 25% admitted being accused of physically abusing the children or committing violence against the abductor. See id. at 35. The denial by the left-behind parents that they committed violence also conflicts with more general statistics about who are the victims of domestic violence. "Women were about 6 times more likely than men to experience violence committed by an intimate." Bureau of Justice Statistics, Violence Against Women: Estimates From the Redesigned Survey 1 (1995). 11. International Parental Kidnapping Crime Act of 1993, 18 U.S.C. § 1204(c)(2) (1993). 12. Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, T.I.A.S. 11670, 1343 U.N.T.S. 89 (entered into force Dec. 1, 1983) [hereinafter Hague Convention on Child Abduction]. 13. Lord Chancellor's Department, Child Abduction Unit, Report on the Third Meeting of the Special Commission to Discuss the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, Apr. 8, 1997, at 1 (authored by Michael Nicholls). 14. In the first and second Special Commission Meetings to Review the Operation of the Hague Convention, held in 1989 and 1993 respectively, domestic violence appeared only once as an issue that received any comment at all, and not by virtue of it being on the agenda. In the context of an inquiry about whether courts in the various countries have refused the return of a child on the grounds set out in Article 13(b) (allowing a judicial or administrative authority to refuse to return the child if there "is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation"), the following was stated: An observer pointed out that an abducting parent may refuse to return because of fear of domestic violence. In Ireland, the only State to mention such a case, the Court refused an order to return partly on the grounds that 20001 ESCAPE FROM DOMESTIC VIOLENCE primary 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.' The 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 harms any domestic violence would pose a severe psychological risk to the children. Hague Conference on Private International Law- Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, Jan. 18-21, 1993, 33 I.LM. 225, 241 (1994) [hereinafter Report of the Second Special Commission]. 15. Hague Convention on Child Abduction, supra note 12, at 1501. See generally Elisa Prez-Vera, Report of the Special Commission, Preliminary Doc. No. 6, May 1980, in Hague Conference on Private International Law, III Actes et documents de la Quatorzieme Session, October 6-25, 1980, at 14-16 [hereinafter Pdrez-Vera Report] (describing analogous bilateral and international agreements). See, e.g., European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, opened .for signature May 20, 1980, E.T.S. No. 105 [hereinafter European Convention]; Inter-American Convention on the International Return of Children, adopted at Montevideo, Uruguay on 15 July 1989,29 I.L.M. 63 (1990) [hereinafter Inter-American Convention]. The European Convention is concerned with the enforcement of custody and access orders. See European Convention, supra, Art. 7, Art. 11. The European Convention requires a custody or access decision in order to invoke its provisions. See id. Art. 4. There are provisions that, in some instances, might permit a court not to enforce a foreign order if the beneficiary of that order is also a perpetrator of domestic violence. See, e.g., id.A rt. 10 (1)(a), (b) ("[i]f it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State addressed; if it is found that by reason of a change in the circumstances... the effects of the original decision are manifestly no longer in accordance with the welfare of the child"). For a description of the European Convention, see generally Anne Marie Hutchenson & Henry Setright, International Parental Child Abduction 7-9 (1998); Cathy S. Helzick, Note, Returning United States Children Abducted to Foreign Countries: The Need to Implement the Hague Convention on the Civil Aspects of International Child Abduction, 5 B.U. Int'l .J-. 119, 136-39 (1987); and Robin Jo Frank, Note, American and InternationalR esponses to International Child Abductions, 16 N.Y.U. J. Int'l L. & Pol. 415, 429-30, 437-40, 445-47 (1984). The European Convention is "complementary" to the Hague Convention on Child Abduction, and presents "no conflict" in principle. See Hague Conference on Private International Law- Overall Conclusions of the Special Commission of October 1989 on the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Oct. 26, 1989,29 I.L.M. 219, 233 (1990) [hereinafter Conclusions of 1989 Special Commission]. There have been no practical problems either- "The Permanent Bureau and the Council of Europe have an excellent working relationship on the interplay between these Conventions." Report of the Second Special Commission, supra note 14, at 246. The Inter-American Convention is modeled, in part, on the Hague Convention and is also compatible with it. See Inter-American Convention, supra, at 63-64 (Introductory Note of Heidi V. Jimenez). The Inter-American Convention contains, however, one defense that may be broader than anything contained in the Hague Convention. Article 25 states that "[a] child's return under this Convention may be refused where it would be manifestly in violation of the fundamental principles of the requested State recognized by universal and regional instruments on human rights or on the rights of children." Id. at 71. FORDHAM LAW REVIEW [Vol. 69 attending wrongful removal or retention.16 The Convention, described in detail below,17 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.""8 The Convention is presently in force in over sixty countries, including the United States.19 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." Part I of 16. Hague Convention on Child Abduction, supra note 12, Art. 1. 17. See infra Part II. 18. Hague Convention on Child Abduction, supra note 12, Art. 1. 19. As of April, 2000, the Convention had been ratified or acceded to by Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bermuda, Bosnia & Herzegovina, Brazil, Burkina Faso, Canada, Chile, China (Hong Kong Special Administrative Region only), Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Federal Republic of Yugoslavia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hungary, Iceland, Isle of Man, Ireland, Israel, Italy, Liechtenstein, Luxembourg, Macedonia, Macau, Malta, Mauritius, Mexico, Moldova, Monaco, Montserrat, Netherlands, New Zealand, Norway, Panama, Poland, Portugal, Romania, Slovenia, South Africa, Spain, St. Kitts and Nevis, Sweden, Switzerland, Turkmenistan, United Kingdom, United States, Uruguay, Uzbekistan, Venezuela, and Zimbabwe. See Hutchenson & Setright, supra note 15, at 56-57; Hague Conference on Private International Law, Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, preparations for a fourth Special Commission meeting to review the operation of the Convention and a description of the work currently undertaken by the Permanent Bureau in Support of the Convention, Prelim. doc. No. 6 of April 2000, at 2; News: Child Abduction, 25 Fam. L. Rep. 1171 (Feb. 9, 1999). 20. Most authors who have addressed the Convention from a legal standpoint have not mentioned the problem of the domestic violence victim as abductor. A few authors acknowledge that abductors are sometimes women fleeing from domestic violence, but these authors fail to address that fact in their analysis in any important way. See, e.g., Glen Skoler, A Psychological Critique of International Child Custody and Abduction Law, 32 Fam. L.Q. 557, 588-89 (1998) (arguing that while courts make "right mistakes" when they manipulate the Convention to refuse the child's return in this sort of situation, courts should still order the child's return if the child can remain with the abducting parent until the merits are adjudicated); June Starr, The Global Battlefield: Culture and International Child Custody Disputes at Century's End, 15 Ariz. J. Int'l & Comp. L. 791, 832 (1998) (arguing that the Hague Convention does not promote children's interests in the same manner as does the U.N. Convention on the Rights of the Child). Only two authors have addressed the issue with any sort of depth. My approach complements both of these authors' efforts. Regan Fordice Grilli in her student comment, Domestic Violence: Is it Being Sanctioned by the Hague Convention?, 4 Sw. J.L. & Trade Am. 71 (1997), bases her analysis on one case, Nunez-Escudero v. Tice Menley, 58 F.3d 374 (8th Cir. 1995). My Article extends far beyond Grilli's analysis because the issues in the Nunez-Escudero case and Grilli's discussion were limited to the Hague Convention's habitual residence requirement and grave risk exception. Unexamined by Grilli were how other provisions of the Convention are affected by domestic violence, the Convention's general minimization of the relevance of domestic violence, and the possible solutions to the problem. Miranda Kaye also 2000] ESCAPE FROM DOMESTIC VIOLENCE this 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.21 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. Against this backdrop, the Hague Convention's quick "right of return" remedy and its limited defenses made perfect sense. 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. 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. The Convention contains no defense stating that an abduction is justified if it occurred to escape from domestic violence. Moreover, none of the current defenses readily encompass that argument.? 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.23 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. 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. The options evaluated range from the rather modest possibility that courts extract undertakings from examines the problem in her article, The Hague Convention and the Flight from Domestic Violence: How Women and Children are Being Returned by Coach and Four, 13 Int'l J.L. Pol'y & Far. 191 (1999). Professor Kaye analyzes Convention cases "mainly from England and Australia," id. at 192, whereas my Article focuses mainly on cases from the United States. Professor Kaye focuses "mainly" on Article 13(1)(b), id. at 195, whereas my Article examines all of the possible defenses available under the Hague Convention that a domestic violence victim might be able to invoke. Professor Kaye's principal contribution is her identification of themes in the cases that suggest that judges adjudicating Hague Convention cases have an incomplete understanding of domestic violence. For example, Professor Kaye suggests that judges view the mothers as "hostile and manipulative," have an "unrealistic [view of] ... the ability of the legal system to protect women and children from violence," and "underestimat[e]" the harm children experience from domestic violence. Id. at 192. Consistent with Professor Kaye's observations, this Article finds a general unwillingness among United States judges to interpret the Convention in a manner beneficial to victims trying to escape from domestic violence with their children. However, unlike Professor Kaye, this Article also analyzes potential options for mitigating courts' use of "[l]anguage and themes... which minimize, trivialize or normalize violence against women and children." Id. at 205. 21. See infra Part I.A. 22. Se e.g., infra Part II.B.2.e. 23. See infra Part ll.B.1. FORDHAM LAW REVIEW [Vol. 69 petitioners that guarantee an abductor's safety24 to the more radical adoption of an explicit domestic violence defense.' This Article also explores whether the new Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of ParentalR esponsibility and Measuresf or the Protection of Children ("Protection Convention") 6 can ameliorate the problems faced by domestic violence victims who are served with a Hague Convention petition.7 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.28 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. These goals must be accomplished without undermining the important framework of the Hague Convention. Hopefully, policy makers at the fourth meeting of the Special Commission to review the operation of the Convention, scheduled for March 2001,9 will agree with these goals and strive for their achievement, regardless of whether this Article's specific solution finds favor. 24. See infra Part III.A. 25. See infra Part III.C. 26. Hague Conference on Private International Law: Final Act of the Eighteenth Session with the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, and Decisions on Matters Pertaining to the Agenda of the Conference, Oct. 19, 1996, 35 I.L.M. 1391 (1996) [hereinafter Protection Convention]. 27. See infra Part III.B. 28. See infra Part III.D. 29. Preliminary documents prepared to help plan for the fourth Special Commission meeting suggest that the issues raised in this Article will be before that body. See, e.g., Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Preparations for a Fourth Special Commission meeting to review the operation of the Convention and a description of the work currently undertaken by the Permanent Bureau in support of the Convention, April 2000, Prel. Doc. No. 6 of April 2000, at 4-5, 5 (listing principal agenda items as including "[ijssues surrounding the safe return of the child (and the custodial parent, where relevant)"). In fact, one of the "four major areas of concern" identified by Professor William Duncan, First Secretary of the Hague Conference on Private International Law, in Action in Support of the Hague Convention. A View from the PermanentB ureau, is the: concern that the Convention, when applied with rigour, is too drastic a remedy for some of the situations to which it has commonly come to be applied. The case particularly in point is that in which the abductor is the primary caretaker, usually a mother with joint custody, and in which the father is using the return application essentially as a means to safeguard his visitation rights. Id. at 8. 2000] ESCAPE FROM DOMESTIC VIOLENCE 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. Because these interpretations may not be uniformly adopted, this Article ultimately 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. 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. The procedure would allow these victims to litigate issues of custody from the country to which they fled. The return of their children would be stayed until this litigation was complete. At this time, this two-pronged solution offers the best hope for addressing domestic violence victims' concerns without undermining the Convention. I. COMPLETING THE PICTURE A. The Forgotten Abductors Although every international child abduction is factually distinct, all international child abductions converge with the transportation of a child across national borders. Some common patterns emerge and deserve attention because specially tailored solutions to these abductions may make the most sense. For example, abductions by strangers are often treated differently by law enforcement than abductions by relatives.' Among abductions committed by parents,3' it is useful to focus on the abductor's gender and motives. One can then segregate those cases where the abductor claims to have abducted her children to escape from domestic violence. This subset of cases raises unique issues for policy makers, as described below.Y Policy makers historically have tended to treat international child abduction by parents as a monolith, despite significant differences between the types of abduction. In the United States, for example, reformers used the image of a "typical" international child abduction to guide their efforts.3 The prototype is not traceable to any one 30. See Martha Winterbottom, The Nightmare of International Child Abduction: Facing the Legal Labyrinth, 5 J. Int'l L. & Prac. 495, 497-98 (1996) (discussing how law enforcement does not wish to be involved with domestic disputes). 31. See David Finkelhor et al., Missing, Abducted, Runaway and Thrownaway Children in America: First Report Numbers and CharacteristicsN ational Incidence Studies, at 62 (8 out of 10 cases involve "parental figures" as abductor) (May 1990). Only abductions by one parent from the other parent are addressed in this Article. 32. See infra Part I.B. 33. It is obviously impossible to generalize the United States' experience to other