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International Child Abduction and the Escape from Domestic Violence

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International Child Abduction and the Escape from Domestic Violence Fordham Law Review Volume 69 Issue 2 Article 6 2000 International Child Abduction and the Escape from Domestic Violence Merle H. Weiner Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation 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, PreliminaryComments 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.
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