International law permits abusive fathers custody of children, study finds
Hague Convention needs to factor in domestic violence in court decisions
December 8, 2010
A new study of court cases against battered women living abroad shows that when the women left their abusive partners and returned with their children to the United States, half of the time, U.S. courts sent the children back, usually to their fathers.
The study, co-authored by University of Minnesota researcher Jeffrey Edleson, also shows that almost a third of these estranged husbands filed criminal kidnapping charges against their wives. Released in conjunction with Human Rights Day, Friday, Dec. 10, the Hague Domestic Violence Survey is intended to help to establish domestic violence as a factor in whether courts send children back to their fathers. And the authors of the report hope their website serves as a resource for women and lawyers faced with Hague petitions.
The children’s return is in accordance with an international treaty, the Hague Convention on the Civil Aspects of International Child Abduction, which affects thousands of children each year.
The Hague Convention does not explicitly factor in domestic violence in deciding whether to send children back to the country where they lived. But since the treaty was created 30 years ago, social science research has demonstrated that a child’s exposure to domestic violence is just as harmful as direct abuse. Children who witness domestic violence are at higher risk for emotional problems, and later in life, they have a greater risk for violence in adult interpersonal relationships.
Now social scientists say that it’s time for the law to catch up with science, especially as these cases are likely to dramatically increase as more binational families form and countries such as India and Japan consider adopting the treaty in the next few years.
"The social science literature is clear that child exposure to domestic violence against a parent represents a potentially grave risk to that child's physical and psychological well-being, " Edleson said.
"Judges and attorneys need to recognize this in Hague Convention proceedings. And social service professionals need to understand these dynamics and the international treaty to better serve battered women and children with whom they work."
The report is the first effort in the United States to interview battered mothers and attorneys about their experiences with the Hague Convention, in hopes of better preparing mothers and their lawyers for court proceedings in these cases.
The 404-page report, funded and published by the U.S. National Institute of Justice, includes analysis and excerpts of interviews with 22 mothers and 23 lawyers who represented mothers and fathers in Hague lawsuits and an analysis of court decisions on published Hague cases involving domestic violence.
The report is part of the Hague Domestic Violence Project on international child abduction and domestic violence, led by Lindhorst and Edleson, who is a professor in the U of M's College of Education and Human Development's School of Social Work and director of the Minnesota Center Against Violence and Abuse. On Human Rights Day, Dec. 10, the group will hold a free event in Minneapolis of actors reading the battered mothers’ stories interspersed with commentary by law and social science experts. The event will also be available by webcast. For more information and to register, go to: http://www.haguedv.org.