25899_ial_40-1 Sheet No. 32 Side A 03/06/2009 09:29:42 R R R R R R R R R R R R 49 .. 55 ...... 59 OMESTIC D IDNAPPING K ...... 61 ...... 55 ...... 73 ...... 64 ...... 65 ARENTAL P ENDER ...... 64 IDNAPPING WITH A G K ...... 72 Julia Alanen* RAVITY OF G ...... 50 ARENTAL ...... 69 Violence Defense ...... 57 P IOLENCE AND EMEDY V R COPE AND VIOLENCE S Children Parenting Disputes Involving the Domestic Disputes Involving OMESTIC ONFLATING HE NTRODUCTION International Parental Kidnapping International A. Violence Defense The Domestic A. Kidnapping Statistics Parental B. Potential Effects of Parental Kidnapping on C. Civil, Criminal and Diplomatic Remedies D. International Family Mediation A. Violence Gender-based B. Agency and Empowerment C. Gender Stereotyping and Discrimination in on de Abogados Interamericanos, and at judicial colleges in the U.S. and When Human Rights Conflict: Mediating When Human I. I * in family court and Julia Alanen represented victims of domestic violence II. T IV. C III. D M K immigration proceedings as a staff attorney with the Legal Aid Foundation of Los immigration proceedings as a staff attorney before relocating to the Washington D.C. area Angeles (LAFLA) for a number of years Division, and as Policy Counsel, at The to serve as Director of the International Children (NCMEC). Alanen has lectured National Center for Missing and Exploited advocacy in numerous venues including the on private international law and child and School, Dallas Crimes Against Children Judge Advocate General’s Legal Center Service Institute, American Bar Association Conference, FBI Academy, U.S. Foreign Continuing Legal Education events, the Puerto Rican Federal Affairs Commission, Federaci´ abroad. She taught at California’s mandatory Domestic Violence Counselor Trainings, and lectured on domestic violence laws and resources to California law enforcement agents, Department of Public Social Services, various non-governmental organizations, and at the California State University at Long Beach. She has testified a as an expert for courts and U.S. and foreign legislative committees. Alanen holds the Bachelor of Arts degree in Political Science, International Relations, from from University of California at San Diego, a Masters degree in international affairs the American University’s School of International Service, a Juris Doctor degree from in University of San Diego School of Law, and a Legum Magistra (LL.M.) degree Rights International Legal Studies with a dual specialization in International Human and Gender and the Law from the Washington College of Law in D.C. In this article, Alanen draws in part upon her own experience working directly with families, system actors and victims of parental kidnapping and domestic violence. \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 1 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 32 Side A 03/06/2009 09:29:42 03/06/2009 A 32 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 32 Side B 03/06/2009 09:29:42 R R R R R R R R R R R R M K C Y actual .... 86 ..... 76 ..... 90 appears in civil domestic violence ...... 79 allege IDNAPPING ...... 81 abduction K the child outside his or her IGHTS a child from the child’s country IOLENCE R ...... 83 V retains ...... 74 ARENTAL ...... 97 removes ...... 79 UMAN P H in criminal statutes. Both terms describe be victims – of parental kidnapping (I explore be victims – OMESTIC NTRODUCTION D also ...... 100 I. I kidnapping ...... 84 ONFLICTING ...... 107 NTERNATIONAL C I NVOLVING I can prove detrimental, dangerous and even fatal can prove detrimental, dangerous 1 domestic violence as “victims.” For the sake of brevity, I will at Violence and Child Abuse Violence and Child allege EDIATING ISPUTES ONCLUSION ALANCING LLEGATIONS A. Violence Prompted Mediation Bans Domestic B. Factors Unique to the International Context C. Cultural Considerations D. Best Practices B. of Domestic Parental Kidnapping as a Form C. “Offender” Casting the Roles of “Victim” and A. The Rights of the Child B. Domestic Violence Victims’ Rights C. Left-Behind Parents’ Rights D A Each year, hundreds of thousands of parents kidnap their Each year, hundreds of thousands 1. Nomenclature carries powerful implications. Word choice can significantly V. B VI. M VII. C instruments and the term runs the risk of misleading the reader to believe that domestic violence allegations are runs the risk of misleading the reader to believe that domestic violence allegations never fabricated or exaggerated, and that violence is never mutual or retaliatory. However, in crafting mediation procedures that will protect and empower country of habitual residence, in violation of a custody decree, stipulated agreement country of habitual residence, in violation in a or law. Statutes define precisely what constitutes an abduction or kidnapping with particular jurisdiction. But, in essence, one parent or guardian has interfered to the lawful exercise of the other parent or guardian’s parenting rights. I have chosen its use the term “parental kidnapping” to underscore the gravity of the act and potential criminality. Likewise, I will utilize the term domestic violence “victim” rather than the term “survivor” to underscore the gravity and criminality of domestic violence. Using the word “victim” to capture all persons who of habitual residence to some other country, or of habitual residence to some other country, circumstances where one parent or guardian circumstances where one parent or guardian times use the terms “kidnapper/victim” or “victim/kidnapper” to denote a kidnapping and parent who alleges domestic violence against the other parent. The missing child the child’s left-behind parent may own children, some of them to international destinations. Paren- own children, some of them to tal kidnapping impact the framing of a debate, reveal an author’s bias, and shape how a reader impact the framing of a debate, reveal I will clarifyprocesses information. For these reasons by in advance what I mean choosing that particular terminology. The certain key terms, and my intent behind and “international parental kidnapping” are terms “international parental abduction” the term often used interchangeably although, typically, victims without knowing with certainty which persons are actual victims and which victims without knowing with certainty which persons are actual victims and a are not, it is responsible to err on the side of over-inclusiveness without taking to all position on either party’s veracity or culpability. For this reason, I will refer persons who 50 INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 2 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 32 Side B 03/06/2009 09:29:42 03/06/2009 B 32 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 33 Side A 03/06/2009 09:29:42 , 2 , 8 IOLENCE V OMESTIC Considerations (2008), http://www. 4 D RESENT NON ’ P IS Conflating Parental Kidnapping OMM C DV N ’ SS HERE A pp. 72-79.). AR ? W here to capture the full array of authorities and B ATTERS M are clamoring for guidance with respect to a are clamoring for guidance with MERICAN 6 AW The Dangers of Mediation in Domestic Violence Cases The Dangers of Mediation in Domestic Should international parental kidnapping dis- Should international parental L Some system actors promote a mediation ban on promote a mediation ban Some system actors system actors 3 L.J. 235, 245-48 (2002). For research and reports on mediating in L.J. 235, 245-48 (2002). For research and S ’ incompatible social and cultural norms, irreconcila- incompatible social and cultural AMILY 5 F http://stopvaw.org/Research_and_Reports_on_Mediation.html (last http://stopvaw.org/Research_and_Reports_on_Mediation.html OMEN W Parents are increasingly using mediation to resolve interna- using mediation to Parents are increasingly 5. Interchangeable use of the terms “state” and “country” can be somewhat 6. I use the term 2. who The term “left-behind parent” (or “searching parent”) refers to the parent 3. Sarah Krieger, 4. For a complete list of U.S. states’ mediation standards in cases involving M K EDIATION IN ARDOZO M C abanet.org/domviol/docs/Mediation_1_2008.pdf. “state confusing to readers who are nationals of federal systems. However, “state,” in party,” “contracting state,” and “sovereign state” are the terms typically used term international instruments; therefore, I will favor the term “state” over the “country.” surrounding domestic violence allegations in the international surrounding domestic violence those present in a domestic dis- context can differ profoundly from pute. States’ is unlawfully denied rights of child custody or visitation by the other parent. The term is unlawfully denied rights of child custody “parental kidnapper”) refers to the parent “taking parent” (“kidnapping parent” or parent’s rights of child custody or visitation. who unlawfully interferes with the other professionals that can be involved at different stages of the investigation or resolution of an international parental kidnapping dispute involving domestic violence allegations, for example: attorneys, mediators, judges, social workers, domestic violence counselors, diplomats, law enforcement agents, Interpol, states’ Central Authorities, The Hague Permanent Bureau, etc. critical question: all cases involving domestic violence allegations. all cases involving domestic violence the domestic violence context, visit the Stop Violence Against Women website, the domestic violence context, visit the ble family laws, or lack of effective domestic violence, child ble family laws, or lack of institutions can endanger the protection and parental kidnapping the mediation process and the out- parties and adversely impact come. System actors visited Oct. 5, 2008). domestic violence, see A with a Domestic Violence Remedy, infra with a Domestic Violence Remedy, infra this matter in some detail in the section entitled this matter in some detail in the section available at tional parental kidnapping disputes. Mediating disputes involving kidnapping disputes. Mediating tional parental challeng- allegations has proven exceptionally domestic violence context. The power controversial in the domestic ing and highly violence can com- characteristic of domestic and control dynamics victims, or yield a process, endanger promise the mediation coerced outcome. raises domestic violence allega- putes be mediated when one parent tions against the other parent 2008]left-behind parent. and devastating to the to the child victim, PARENTAL DISPUTES KIDNAPPING many tak- with parental kidnapping allegations, When confronted defense. domestic violence as an affirmative ing parents raise 51 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 3 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 33 Side A 03/06/2009 09:29:42 03/06/2009 A 33 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 33 Side B 03/06/2009 09:29:42 7 M K C Y effec- is the only has Sylvester to mediate cases involving to mediate cases not Siding with the domestic violence 8 case is often cited to as an example of maternal Sylvester Sylvester v. Austria, 37 Eur. Ct. H.R. 17 (2003). http://www.childrensjustice.org/impact_sp.htm. See available mechanism to ensure an abducted child’s safety to ensure an abducted child’s available mechanism Domestic violence victims and their advocates, on the other Domestic violence victims and Every compelling reason Every compelling Parental kidnapping cases involving domestic violence allega- Parental kidnapping cases involving only 9 9. The well-known 7. In some cases, prosecutors will drop criminal charges once the child is 8. For more on gender bias against fathers and non-custodial parents see Hague Abduction case to come before the European Court of Human Rights (ECHR) an to date. An American petitioner (left-behind father) triumphed in court against return abducting Austrian mother. The Austrian Hague Judge ordered the mother to the parties’ daughter to the United States where the father resided. But Austrian authorities simply refused to enforce the Austrian court order against the mother. tive protections, or facilitate appropriate access to both parents. or facilitate appropriate access tive protections, ineffectual remedies by affording Mediation can compensate for opportunity to build protective system actors and parents an and craft a safe, appropriate co- terms into a stipulated agreement provide a domestic violence vic- parenting regime. Mediation may parental kidnapping an alterna- tim charged with international extradition and incarceration. tive to facing criminal prosecution, domestic violence in the domestic context is amplified in the inter- in the domestic context is amplified domestic violence promoting elective - so, too, are the rationales for national context in a dispute lacks the destination state involved mediation. When is non-compli- parental kidnapping remedies, legal or diplomatic effective domes- treaty obligations, or lacks ant with international may prove child protection institutions, mediation tic violence and the victim, authorities refuse to enforce valid custody orders, fail to victim, authorities refuse to enforce deny parents the option to medi- execute criminal warrants, and ate. preference. and well-being, secure the child’s return to a state that secure the child’s return to a and well-being, returned to the custodial parent or the parents have stipulated to a valid, enforceable parenting agreement. Stewart Rein’s testimony on behalf of Families Need Fathers Ltd. United Kingdom, Children’s Rights Council, New York, and Children & Human Rights Council Europe for the New York Senate Standing Committee on Children and Families (1995), available at The option to mediate a mutually agreeable solution could prevent The option to mediate a mutually from taking unilateral actions a desperate, disenfranchised parent and others at risk of grave harm. that place the child, the parent Starkly conflicting rights tions can be rife with moral ambiguity. – left-behind parent, and a domestic those of an abducted child, a the author’s professional expe- are implicated. In violence victim – fathers’ rights advocates assert rience, left-behind parents and with parental kidnapping that some system actors, confronted of domestic violence, infor- allegations and counter-allegations mally adjudicate the dispute. 52 INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 4 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 33 Side B 03/06/2009 09:29:42 03/06/2009 B 33 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 34 Side A 03/06/2009 09:29:42 L. HILD OMEN C see also W ORDHAM IOLENCE IN V GAINST ARENTAL , 69 F P A OMESTIC D IOLENCE report]. Two analyses, . L.Q. 529 (2004); DULT AM carers, usually their mothers, , A , 11 V NTERNATIONAL I 4 (2006), http://www.reunite.org/ . 275 (2002); Merle H. Weiner, REUNITE , 38 F EV DLESON primary domestic violence allegations domestic violence CHEME BDUCTION 10 S L. E A . L. R and EDIATION IN TS ILOT HILD ., M P . R C EFFREY TR UM C & J . H EDIATION The Unmet Needs of Domestic Violence Victims and Their The Unmet Needs of Domestic Violence ARENTAL M HETTY P OLUM S BDUCTION A Navigating the Road between Uniformity and Progress: The Need Navigating the Road between Uniformity UDHA , 33 C HILD C HE REUNITE Two analyses, conducted in 2006 and 2007, of the Two analyses, conducted in L ’ 12 Carol S. Bruch, : T NTERNATIONAL NT I I and the majority of international parental kidnappers are and the majority of international See 11 Addressing domestic violence allegations indirectly by pro- Addressing domestic violence Both parental kidnapping Both parental kidnapping . 593 (2000); S 11. and There is considerable debate over figures concerning how many men 12. One report estimates that “seventy percent of Hague Convention applications 10. M K EUNITE BDUCTION EV ASES OF R conducted one year apart (in 2006 and 2007) at the direction of this author (then conducted one year apart (in 2006 and 2007) at the direction of this author but without the permission of, and in breach of the legal rights of, the other parent.” R edit/files/Mediation%20Report.pdf [hereinafter moting capricious, discriminatory or excessively protectionist moting capricious, discriminatory laws and practices, detracts international parental kidnapping reform inadequate domestic vio- from the need to implement and and parental kidnap- lence institutions. Domestic violence-based a gender discriminatory impact ping-based mediation bans have report experiencing domestic vio- because more women than men lence must be thoroughly and formally investigated, adjudicated and and formally investigated, must be thoroughly of effec- the implementation and enforcement addressed through action must be and resources. Appropriate tive, directed remedies to protect, counsel criminal and civil contexts taken in both the rehabilitate offend- and to deter, punish and and empower victims violence remedy, kidnapping as a domestic ers. Treating parental as a rebuttable affirmative instead of treating domestic violence does injustice to left-behind par- defense to parental kidnapping, right to access both parents, and ents, deprives children of their undermines the rule of law. mothers. Children in Hague Abduction Convention Cases Children in Hague Abduction Convention for Purposive Analysis of the Hague Convention on the Civil Aspects of International Child Abduction 115 (2005), http://vaw.sagepub.com/cgi/reprint/11/1/ (subscription required). women actually suffer domestic violence because of the relative lack of domestic that violence resources for men and the difficulty of assessing the relative likelihood male and female victims will report their abuse. involve children removed, or retained by their A The father took his case before the ECHR, and again he emerged victorious. The The father took his case before the ECHR, own Hague return order forthwith. Again ECHR ordered Austria to enforce its and more than a decade later, the girl Austria refused to execute its own judgment, remains in Austria with her mother. Merle H. Weiner, International Child Abduction and the Escape from Domestic Violence C 2008] sometimes neg- system actors and institutions hand, argue that PARENTAL DISPUTES KIDNAPPING of vindicating an victims or children in the course lect the safety of parental rights. alleged batterer’s 53 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 5 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 34 Side A 03/06/2009 09:29:42 03/06/2009 A 34 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 34 Side B 03/06/2009 09:29:42 M K 17 C Y equality 15 and self- 19 note 13, at pmbl., note 13, at pmbl., 13 at art. 2; UDHR, note 13 at art. 1; U.N. supra supra note 13, at arts. 14, 26; note 13, at pmbl., art. 2. supra supra supra note supra gender equity, 14 (usually mothers). At the 2006 Hague female equality before the law 18 note 13, at art. 3; UDHR, note 13, at pmbl., arts. 2-4; ICCPR, non-discrimination, of whether or not to mediate violates interna- of whether or note 13, at art. 1(3); ICESCR, note 13, at art. 2(1); ICESCR, note 16, at art. 15(1); ICCPR, note 13, at art. 14. 13 note 16, at arts. 16(d), 16(f); CEAFDW, shared parenting rights and responsibilities, shared parenting supra 20 16 supra note 13, at pmbl., arts. 16(d), 16(f). supra supra supra supra choice supra note 13, at art. 7. family abduction database revealed that approximately 65-70% of family abduction database revealed family abductors were supra , and usually mothers. Parental kidnapping-based media- Parental kidnapping-based , and usually mothers. supra note 13, at pmbl., art. 2. Global domestic violence and parental kidnapping advocacy Global domestic violence and 18. ICCPR, 16. General Comm. on the Elimination of Discrimination Against Women, 13. of All Forms of Discrimination against Women, Convention on the Elimination 14. ICCPR, 19. GR 21, 17. GR 21, 20. ICCPR, 15. CEAFDW, arts. 16(d), 16(f). art. 2(1); ICESCR, in the family, determination. Charter art. 1(2). UDHR, Recommendation 21 (13th Sess.) Equality in Marriage and Family Relations, art. 16, Recommendation 21 (13th Sess.) Equality in Marriage and Family Relations, art. 21]; U.N. GAOR, 49th Sess., Supp. No. 38, U.N. Doc. A/49/38 (1994) [hereinafter GR CEAFDW, Special Commission Meeting on the 1980 Hague Convention on International Special Commission Meeting on the Bureau and Professor Nigel Lowe of Parental Abduction, The Hague Permanent the results of a 2003 joint survey that Cardiff University in Wales introduced all Hague respondents (taking parents) were concluded that seventy-nine percent of in 1999). mothers (down from eighty-six percent 34th Sess., U.N. Doc. A/34/46 (Dec. 1979) pmbl., G.A. Res. 34/180, U.N. GAOR, CEAFDW]; International Covenant on (entered into force Sept. 3, 1981) [hereinafter Res. 2200A (XXI), U.N. GAOR, 21st Sess., Civil and Political Rights, pmbl., G.A. 1966) (entered into force Mar. 23, 1976) Supp. No. 16, U.N. Doc. A/6316 (Dec. on Economic, Social and Cultural [hereinafter ICCPR]; International Covenant 21st Sess., UN Doc. A/6316 (Dec. 1966) Rights, pmbl., G.A. Res. 2200, U.N. GAOR, ICESCR]; Universal Declaration of (entered into force Jan. 3, 1976) [hereinafter A/ Human Rights, pmbl. and art. 1, G.A. Res. 217A, U.N. GAOR, 3d Sess., UN Doc. 810 (Dec. 1948) [hereinafter UDHR]. tional human rights laws, norms and principles guaranteeing all laws, norms and principles tional human rights persons dignity, tion bans disparately impact men by excluding them from exercis- impact men by excluding tion bans disparately Denying any rights and responsibilities. ing their parenting parent the efforts have a very long way to go. In the meantime, when a vic- efforts have a very long way to well-trained mediators and attor- tim-parent elects to mediate, array of mediation techniques, neys can employ a wide supra equal access to justice, Center for Missing & Exploited Children’s employed by NCMEC), of the National international international 54 international for Missing & Exploited Children’s National Center sixty-five database revealed that approximately family abduction abductors were percent of international family percent to seventy INTER-AMERICAN LAW REVIEWfemale [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 6 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 34 Side B 03/06/2009 09:29:42 03/06/2009 B 34 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 35 Side A 03/06/2009 09:29:42 23 and IDNAPPING Properly con- K 21 ARENTAL P RAVITY OF -state party are not reflected in the sta- G non COPE AND However, the Permanent Bureau’s statistics rely However, the Permanent Bureau’s S 22 HE A national study funded by the Justice Department esti- 24 A. Parental Kidnapping Statistics There are no available statistics that accurately capture the There are no available statistics Sometimes, when relationships between co-parents sour, one Sometimes, when relationships II. T 21. 86-90. See infra section on “domestic violence-prompted mediation bans” pp. 22. Oct. Hague Convention on the Civil Aspects of International Child Abduction, 23. to the “States party” refers to countries that have formally ratified or acceded 24. For information on the Permanent Bureau’s international child abduction M K ducted, elective mediation holds promising potential as a mecha- mediation holds promising potential ducted, elective violence and empower victims of domestic nism to protect tistics. upon self-reporting by the Central Authorities of states party, upon self-reporting by the Central number of international parental kidnappings that take place number of international parental Bureau in The Netherlands each year. The Hague Permanent disputes brought under the 1980 maintains case statistics on Aspects of International Child Hague Convention on the Civil Abduction. partner unilaterally relocates the child(ren). When that parent is partner unilaterally relocates lawful immigrant status, the a dual citizen, a migrant, or lacks borders. A parent who removes relocation may traverse national where that child was habitually his or her child from the state abroad) in violation of a custody residing (or retains the child law, may have committed paren- decree, stipulated agreement or tal kidnapping. 25, 1980 (entered into force Dec. 1, 1980), T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 25, 1980 (entered into force Dec. 1, 1980), T.I.A.S. No. 11,670, 1343 U.N.T.S. http:// [hereinafter Hague Convention]. Hague case statistics may be viewed at www.hcch.net. treaty The 1980 Hague Convention is the sole international civil directly addressing the issue of international parental child abduction. Hague Convention. visit statistics database, INCASTAT, visit http://www.hcch.net. To view statistics, http://www.hcch.net/index_en.php?act=conventions.publications&dtid=32&cid=24. many of which are poorly resourced. Disputes involving circum- many of which are poorly resourced. stances that fail to meet the elements of the treaty and disputes involving at least one 2008] protect all parties conditions, and resources to procedures, terms, PARENTAL DISPUTES KIDNAPPING The emerging trend the likelihood of coercion. involved and reduce mediation international parental kidnapping in established choose whether or the right of every parent to schemes is to honor 55 own child, even in a dispute involving his or her not to mediate domestic violence allegations. cases involving kidnapping. victims of parental \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 7 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 35 Side A 03/06/2009 09:29:42 03/06/2009 A 35 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 35 Side B 03/06/2009 09:29:42 , : M K C Y http:// USTICE J HILDREN BDUCTED C , A UVENILE ISSING available at ISSING J for the attention of Most states do M , 26 M Many are bound 25 FFICE OF , O http://hcch.e-vision.nl/upload/ TUDIES OF STIMATES OF S E USTICE J available at TOF ATIONAL ’ NCIDENCE I EP , N http://www.ncjrs.gov/pdffiles1/ojjdp/196465.pdf. ATIONAL Preliminary Doc. no. 9 (Oct. 2006), ., U.S. D HILDREN , N C available at Report on the iChild Pilot and the Development of the Report on the iChild Pilot and the EDLAK ET AL REVENTION HROWNAWAY P J. S 2 (2002), T Authorities sometimes fail to respond appropriately to Authorities sometimes fail to AND 27 , NDREA After working on parental kidnapping cases (first as a litiga- parental kidnapping cases (first After working on VERVIEW ELINQUENCY 25. A 26. This 2007 Interview with Susan Rohol, Gen. Counsel, NCMEC (Oct. 21, 2008). 27. crimes Despite the large number of international parental kidnapping O UNAWAY N R A hcch.e-vision.nl/upload/wop/abd_pd09e2006.pdf. For information on the Permanent Bureau’s case data collection efforts, see Hague Conference on Private International Law, Preliminary Doc. no. 10 (Jul. 2002), tor, and later as the Director of NCMEC’s International Division), the Director of NCMEC’s International tor, and later as and abroad, and array of system actors in the U.S. training a wide and bilateral meetings, participating in international conferences kidnapping may be grossly the author estimates that parental Many left-behind parents are underreported for various reasons. to combat parental kidnapping. unaware that legal remedies exist that reporting the abduction to Undocumented parents may fear swift deportation and permanent authorities will result in their or other dependents. Many sys- separation from the missing child applicable civil, criminal and inter- tem actors are unfamiliar with trained to investigate and national laws or are inadequately enforce. not maintain international parental kidnapping statistics. parental kidnapping not maintain international for international destinations. In 2007, NCMEC maintained an destinations. In 2007, NCMEC for international parental kidnap- than 1,800 active international average of more and America half of them involving Latin more than ping cases – – technical assistance cases. dozens of international abd2002_pd10e.pdf. Studies funded and published by the U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention (OJJDP). a statistic includes all international family abduction cases, including cases where a biological parent, a legal guardian, or close family member abducted a child across foreign border. NCMEC counts all international family abduction cases by child. committed annually, U.S. federal prosecutors rarely prosecute parental kidnapping Fed. cases. Interview with Augustus “Mick” Fennerty, Supervising Special Agent, of Bureau of Investigation (Dec. 2006). The U.S. Justice Department’s Office Crime International Affairs (OIA) tracks active International Parental Kidnapping Act cases (those statistics are not published). the Fifth meeting of the Special Commission to review the operation of the Hague the Fifth meeting of the Special Commission Convention of 25 October 1980, International Child Abduction Statistical Database, INCASTAT International Child Abduction Statistical For information on the Permanent Bureau’s efforts to improve and harmonize For information on the Permanent Bureau’s a new electronic case management statistical data in the future by introducing Bureau, Hague Conference on Private system known as “iChild,” see Permanent International Law, & D 56 203,900 children United States approximately mated that in the a family member in one year. were abducted by INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 8 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 35 Side B 03/06/2009 09:29:42 03/06/2009 B 35 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 36 Side A 03/06/2009 09:29:42 , a L. See Case Pro- 28 EOFFREY G See , Attorney General of The British Institute of Human “[i]nternational parental note 25. A subsequent study of 29 supra ., 31 Family Abduction: Prevention & Response http://missingkids.com. see also A Family Resource Guide on International EDLAK ET AL S in its formal title. Reunite International Child Abduction available at The Best Interests of the Child, , U.S. Dept. of Justice, Office of Juvenile Justice and see also reunite report, supra note 12, at 4. Children Kenneth A. Hanfland, Robert D. Keppel & Joseph G. Weis, Parent-child relationships are compromised or destroyed, Parent-child relationships are EUNITE 30 See B. on of Parental Kidnapping Potential Effects Parental kidnapping can prove detrimental, dangerous and can prove detrimental, Parental kidnapping According to one estimate, between ten percent and forty percent of parentally 30. R 31. 28. Executive Director, Take Root (Oct. 7, 2008). Interview with Liss Hart-Haviv, 29. Abduction Centre deliberately uses a lower- The reunite International Child M K joint publication by The National Center for Missing and Exploited Children, the joint publication by The National Center for Missing and Exploited Children, Bar Office of Juvenile Justice and Delinquency Prevention, and the American Association (Mar. 2002), longed separation causes a break in the bond between the child longed separation causes a break particularly high-conflict parental and the left-behind parent. In involving domestic violence), or kidnapping disputes (e.g., those children may become alienated or during prolonged separations, According to the reunite estranged from left-behind parents. Centre, International Child Abduction Washington & U.S. Dept. of Justice Office of Juvenile Justice and Delinquency Prevention (May 1997), at 16; Rights (1993) at 20; nearly 400 parents involved in parental kidnapping disputes concluded that seven nearly 400 parents involved in parental kidnapping disputes concluded that percent of the children suffered sexual abuse, twenty-three percent suffered physical abuse, and five percent suffered both physical and sexual abuse. child abduction. . . frequently causes acute emotional distress to child abduction. . . frequently importantly, to the abducted chil- both parents involved and, most dren.” kidnapped children became severely emotionally disturbed as a direct result. kidnapped children became severely emotionally disturbed as a direct result. Centre, http://www.reunite.org/aboutus.asp (last visited Dec. 30, 2008). Centre, http://www.reunite.org/aboutus.asp Delinquency Prevention (Jan. 2007); Management for Missing Children Homicide Investigation children are uprooted and destabilized, and families are exposed children are uprooted and destabilized, to grave danger or even filicide. even fatal to the child victim. Many kidnapping parents convince child victim. Many kidnapping even fatal to the dangerous the left-behind parent is deceased, their children that relationship. in pursuing a parent-child or uninterested Parental Kidnapping Hart-Haviv refers to this phenomenon as “The Three D’s: Dead, Dangerous and Hart-Haviv refers to this phenomenon abduction make up the membership of Disinterested.” Former victims of parental based non-profit dedicated to helping victims recover and Take Root, a Kalama, WA about the potentially severe and lasting educating parents and professionals Hart-Haviv is a survivor of parental child detrimental effects of family abduction. information. abduction; visit http://takeroot.org for more case “r” in the word Geraldine Van Buren, 2008] unaware of its dele- reports because they are parental kidnapping PARENTAL DISPUTES KIDNAPPING children. terious effects upon 57 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 9 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 36 Side A 03/06/2009 09:29:42 03/06/2009 A 36 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 36 Side B 03/06/2009 09:29:42 M K C Y , Mar. 31, EHIND THE OST B , Sept. 10, 1999 . P OST ASH AMILIES , P , W F ASH HE , W : T IDNAP K Gadi Dechter, Tyeesha Dixon & Julie ARENTS P see also HEN , Nov. 24, 2007, at 1 (on Thanksgiving Day, David , Apr. 16, 2007, at 1; Katherine Shaver & Amy Expert Details What Leads Parents to Kill their Own UN , W . S EWS EGAR ALT N , B AILY L. H . D Police: Father Staged Carjacking, Killed Son HIL (The Free Press 1993); 3 Children Found Slain in Baltimore Hotel Room EBECCA Howard Mother, 3 Children Fatally Shot: Father, Believed to Be Killer, Also , P We spent two years [on the run] to avoid being found. I [on the run] to avoid being We spent two years we went three times, and each new place changed schools prior to these events . . . I to I lost . . . more of the life I had pair of shoes, one pair of had only one pair of pants, one We had gone from living socks, two shirts, and one sweater. living in our car at times, in a million dollar home . . . to . . . .and scraping by with little means I remember sitting out the window, and glanc- in a classroom one day, looking someone would find me ing back at the door, hoping that I used to think that if I and take me back to my father. day in the life I was in, could just make it through one more . . . I had no friends. I was that they would find me the next . . . my mother would scared . . . that if I did befriend people her too . . . . I could no be arrested, and that then I’d lose father looked like . . . . I longer even remember what my I wanted to be with my was hating my mother, and how back . . . I lied about every- father. [After] I was finally sent any of my friends to thing to everyone. I never wanted understand the dynam- know what had happened. I didn’t . . I feel a well of emotion ics of our situation very well . . it must have been on my when I think about how hard me again . . . . The years father to wonder if he’d ever see with regard to all of the have presented many obstacles [suppressed] . . . . I have feelings that I have for so long never spoken to [my mother] about what it has done to me . . . . I was an angry person for a very long time . . . my past is filled with hurt, and shame . . . . I continue to try to learn & R Adults who were parentally kidnapped as children find sup- parentally kidnapped as children Adults who were EADLINES REIF 2008, at B1; Dana DiFilippo, at A1. Scharper, Peter Brockdorff of Frederick, Maryland shot and killed his three children and his Peter Brockdorff of Frederick, Maryland shot and killed his three children and Elissa estranged ex-wife before shooting himself to death); Daniel de Vise & Silverman, Argetsinger, port from fellow survivors who comprise the membership of Take survivors who comprise the membership port from fellow to helping victims organization dedicated Root, a non-profit about the educating parents and professionals recover and to of family abduc- and lasting detrimental effects potentially severe as a child by her Root member, was abducted tion. Jen, a Take she shared with follow from the experience that mother. Excerpts Take Root: Children Found Dead in Park G H 58 INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 10 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 36 Side B 03/06/2009 09:29:42 03/06/2009 B 36 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 37 Side A 03/06/2009 09:29:42 . All inter-country after it entered into attempted international abduction and and dual criminality treaties and Formal diplomatic negotia- 34 list treaties note 22. supra Some states recognize parental kidnapping as a Some states recognize parental 33 parental kidnapping presents compounding factors presents compounding parental kidnapping 32 states constitutes an extraditable offense. Most extradition treaties provide and will extradite a parent to face criminal charges in the and will extradite a parent to C. Remedies Civil, Criminal and Diplomatic the truths of my past, and have been building relationships have been building of my past, and the truths always be Clearly, there will probably back up for years. pain. Numerous civil, criminal and diplomatic remedies exist to Numerous civil, criminal and There are two general treaty types: 34.federal government and every U.S. state have For example, the U.S. 32. and those of other Take Root members, are Jen’s complete narratives, 33. Hague Convention, both M K modern treaties are dual criminality treaties, but some list treaties remain in effect modern treaties are dual criminality treaties, but some list treaties remain in only (one treaty dates back to the Ottoman Empire in the 1800’s). In a list treaty, specifically enumerated crimes constitute extraditable offenses. In a dual criminality treaty, any crime punishable by twelve months plus one day (or longer) imprisonment in parental kidnapping. Numerous factors govern whether international criminal extradition is an option in any particular parental kidnapping case. The foreign with country must have an extradition treaty in effect with the requesting country respect to the crime charged. force, provided that, at the time of making the extradition request, the offense was force, provided that, at the time of making the extradition request, the offense recognized as an offense under both states’ laws. Extradition information obtained (OIA). from True Rowan, Senior Litigator, U.S. Dep’t of Justice, Office of Int’l Affairs effect OIA maintains current information regarding all extradition treaties in cases. The International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. §cases. The International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. 1204 (2003), criminalizes inter-country parental kidnapping and criminalized interference with custody, and many U.S. states have criminalized criminalized interference with custody, a list of U.S. state custodial interference interference with visitation (access). For A federal statute, Unlawful Flight to statutes, visit http://www.missingkids.com. Avoid Prosecution (UFAP), 18 U.S.C. § 1073 (1996), allows federal law enforcement children across state or federal borders in authorities to pursue parents who move custodial (or visitation) interference. UFAP is violation of a state warrant for criminal Kidnapping Prevention Act (PKPA) part of the Fugitive Felon Act; the Parental to interstate clarified that the Fugitive Felon Act applies that can intensify the child’s suffering and magnify the risk of the child’s suffering and that can intensify edu- and cultural barriers, incompatible linguistic, social harm – and immigration religious restrictions, travel cation systems, domestic violence child protection and restrictions, inadequate and human gender norms, discrimination regimes, disparate are a few examples. rights violations that the agreement will apply to offenses committed before child’s state of habitual residence. combat and prevent international parental kidnapping. One inter- combat and prevent international parental kidnapping: the national civil treaty directly addresses Civil Aspects of International 1980 Hague Convention on the Child Abduction. available at http://www.takeroot.org/sanctuary.php. crime 2008] PARENTAL DISPUTES KIDNAPPING International 59 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 11 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 37 Side A 03/06/2009 09:29:42 03/06/2009 A 37 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 37 Side B 03/06/2009 09:29:42 M K 39 C Y visitation Many states 37 available alternative. only , and have achieved only limited success with , and have achieved only limited success return . Interview with Jessica Sarra, Dir. of Operations, Int’l . Interview with Jessica Sarra, Dir. of Where the states involved lack legal or diplo- Where the states 38 access Family law attorneys are now increasingly reporting suc- are now increasingly reporting Family law attorneys 36 35 However, less than half of the world’s sovereign states have half of the world’s sovereign However, less than 36. in incoming cases to the United States, This practice is fairly common 37. States The Department of State maintains a list of states bound to the United 38. (OIA) The U.S. Department of Justice’s Office of International Affairs 39. Mediation is a form of alternative dispute resolution (ADR) that is frequently 35. recognition of the importance of The international community’s still do not consider parental kidnapping a crime and very few parental kidnapping a still do not consider on parental kid- to extradite their own nationals states are willing napping charges. Family mediation has been grossly underutilized in this context. Family mediation has been grossly respect to promoting Ctr. for Missing & Exploited Children (ICMEC) (Apr. 27, 2007). Ctr. for Missing & Exploited Children (ICMEC) Jurisdiction and Enforcement Act of 1997 facilitated by the Uniform Child Custody in outgoing cases to non-Hague states. [hereinafter UCCJEA]. It is less common Apy reported that she has successfully However, New Jersey-based attorney Patricia states. registered and enforced U.S. child custody orders in Middle East region Bank, Telephone Interview with Patricia Apy, Partner, Paras, Apy & Reis, in Red N.J. (Dec. 2006). under the Hague Convention that is available at http://travel.state.gov/family/ states abduction/hague_issues/hague_issues_1487.html. A complete list of contracting to the Hague Convention also exists at http://hcch.e-vision.nl/index_en.php?act= conventions.status&cid=24. and processes international extradition requests involving the United States effect maintains a comprehensive list of extradition treaties, terms and conditions in between the U.S. and other states (this data is not published). and employed in child custody disputes to assist parents to open or improve dialogue, a safe reach a mutually acceptable parenting agreement. Mediation can initiate, in be environment, a process of cooperative parenting between two adults who will forced to co-parent for many years to come. Mediation provides parents an alternative matic remedies, or are non-compliant with international treaty matic remedies, or are non-compliant the obligations, mediation may prove cess at domesticating and enforcing foreign child custody and enforcing foreign cess at domesticating decrees. ratified the sole international civil treaty on point. international civil treaty on ratified the sole between the U.S. and foreign states that recognize parental kidnapping as an between the U.S. and foreign states extraditable offense (this data is not published). of a number of bilateral memoranda of (access) rights is evidenced by the existence These memoranda generally operate understanding to address parental kidnapping. and one non-Hague country. According to between one Hague signatory country into parental kidnapping memoranda of Kathleen Bresnahan, the U.S. has entered and Saudi Arabia. Interview with understanding with Egypt, Jordan, Lebanon, Officer, U.S. Central Authority, State Kathleen Breshnahan, former Country of Children’s Issues (Apr. 29, 2007). For Department’s Abduction Unit in the Office has entered into such a memorandum of example, according to Jessica Sarra, Belgium Belgium loads its left-behind parents onto a understanding with Morocco; each year with their children. The memoranda plane and shuttles them to Morocco for visitation typically do not facilitate a child’s 60 between states memoranda of understanding tions and bilateral parent-child secured a child’s return or facilitated have sometimes access. INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 12 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 37 Side B 03/06/2009 09:29:42 03/06/2009 B 37 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 38 Side A 03/06/2009 09:29:42 to to discover the 41 40 a) , winning essay in the law to secure the voluntary all appropriate measures all appropriate c) of the child. note 22, at art. 2. amongst the competent authorities in amongst the competent authorities procedures available. supra to exchange, where desirable, information http://www.mediate.com/articles/rimelspach.cfm (last visited d) voluntary return to prevent further harm to the child or to prevent further harm to b) available at most expeditious at art. 10. Id. secure within their territories the implementation of the territories the implementation secure within their shall use For this purpose they objects of the Convention. the whereabouts of a child who has been wrongfully removed or whereabouts of a child who has been retained; return of the child or to bring about an amicable resolution return of the child or to bring about of the issues; their respective State to secure the prompt return of chil- their respective State to secure of this Convention. In dren and to achieve the other objects any intermediary, particular, either directly or through they shall take all appropriate measures prejudice to interested parties by taking or causing to be prejudice to interested parties taken provisional measures; The Central Authority of the State where the child is shall The Central Authority of the State measures in order take or cause to be taken all appropriate to obtain the with each other and Central Authorities shall co-operate promote co-operation D. Family Mediation International shall take Contracting States Elective family mediation is increasingly employed to resolve mediation is increasingly employed Elective family Mediating Family Disputes in a World with Domestic Violence: How to Devise a Mediating Family Disputes in a World with Domestic Violence: How to Devise 41. 40. Hague Convention, M K student category, 2001, James Boskey ADR Writing Competition, sponsored by the student category, 2001, James Boskey ADR Writing Competition, sponsored American Bar Association Dispute Resolution Section and the Association for Conflict Resolution, Oct. 26, 2008). international parental kidnapping disputes. The 1980 Hague Con- kidnapping disputes. The international parental Child Abduction Civil Aspects of International vention on the a comprehensive to cooperate and to employ urges states party parental and resources to resolve international range of remedies expeditiously: kidnapping disputes Safe and Effective Court-Connected Mediation Program to the stress, expense, delays and uncertainty of litigation, and empowers them to to the stress, expense, delays and uncertainty and their own. Typically, the mediator craft solutions that meet their child’s needs impose a mandatory mediation requirement plays a neutral role. Many family courts only if the parties reach an custody dispute on all parties before the court will hear a – (the impasse, or one party refuses to attend mediation, will the court proceed by the obstructive party who refused to attempt mediation may not be well-received if and judge). The terms discussed in the course of mediation become binding only when both parties execute a written stipulated agreement. Ideally, each party retains and an attorney to carefully review and explain the implications of all terms about conditions prior to the parties signing. When parents bring to light concerns in the abuse or neglect, well-trained mediators and attorney advisors involved and mediation process can introduce terms, conditions, and resources to protect empower victims and children. For more on domestic violence mediation safeguards, see 2008] PARENTAL DISPUTES KIDNAPPING 61 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 13 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 38 Side A 03/06/2009 09:29:42 03/06/2009 A 38 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 38 Side B 03/06/2009 09:29:42 M K C Y to provide to provide e) h) 43 The federally-funded 45 42 where the circumstances so require, to provide or so require, to provide where the circumstances g) The reunite mediation scheme has partnered with The reunite mediation scheme 44 at art. 7. at art. 11. . . . to eliminate any obstacles to [the treaty’s] . . . to eliminate any obstacles to initiate or facilitate the institution of judicial or admin- the institution of judicial to initiate or facilitate Id. Id. such administrative arrangements as may be necessary arrangements as may be such administrative return of the child; [and] and appropriate to secure the safe information of a general character as to the law of their general character as to the law information of a with the application of the Convention; State in connection facilitate the provision of legal aid and advice, including the of legal aid and advice, including facilitate the provision legal counsel and advisers; participation of application. istrative proceedings with a view to obtaining the return of with a view to obtaining the istrative proceedings for a proper case, to make arrangements the child and, in rights of the effective exercise of organizing or securing access; i) relating to the social background of the child; of the to the social background relating f) In spite of these obvious advantages, relatively few states In spite of these obvious advantages, 43. 44. of The According to Denise Carter, William Duncan, Deputy Secretary General 45. in the Carter reports that U.K.-Egypt bi-national mediations will be conducted 42. various states party to the 1980 Hague Convention in pilot inter- various states party to the 1980 mediation schemes, and also part- national parental kidnapping treaty, including Pakistan, Dubai ners with states not party to the trav- and Egypt. The director of reunite, Denise Carter, recently eled to Egypt to train mediators at a Cairo-based non-governmen- tal organization in anticipation of a U.K.-Egypt pilot international parental kidnapping mediation scheme. Hague Conference on Private International Law, served on reunite’s mediation is steering group, guiding the organization’s development. The mediation program 7, privately funded. Telephone Interview with Denise Carter, Dir., reunite (April 2008). co-mediation model, using one mediator from each state. Carter noted that Egypt’s allow Shari’a Law may preclude negotiating a child’s return, but mediation may have formally engaged mediation to resolve international parental have formally engaged mediation eight years ago, the United kidnapping disputes. Approximately organization, the reu- Kingdom designated a non-governmental Centre, to mediate interna- nite International Child Abduction disputes involving the United tional parental kidnapping (IPK) Kingdom. Elective mediation is one appropriate mechanism to promote coop- Elective mediation is one appropriate an amicable (or at least mutually eration, voluntary return and treaty language explicitly mandat- acceptable) resolution. Despite Hague litigation can drag on for ing expeditious adjudication, mediation typically concludes months or even years, whereas or weeks. expeditiously, in a matter of days 62 INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 14 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 38 Side B 03/06/2009 09:29:42 03/06/2009 B 38 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 39 Side A 03/06/2009 09:29:42 47 , Hague available at Ignacio Goicoechea 46 However, the United 48 http://www.hcch.net/upload/wop/ available at , Hague Conference on Private International Law, Note on the Development of Mediation, Conciliation and Similar Note on the Development of Mediation, Conciliation note 46, at App. 1, at 5. The U.S. State Department is the Feasibility Study on Cross-border Mediation in Family Matters – supra ur Familien-Mediation, or BAFM) mediates international ur Familien-Mediation, In 2005, the United States’ designated Central Authority on In 2005, the United States’ designated 46. Sarah Vigers, 47. at E-mail from Ignacio Goicoechea, Liaison Legal Officer for Latin America 48. Vigers, M K Conference on Private International Law, International Child Abduction, Prel. Doc. Conference on Private International Law, No. 5 (Oct. 2006), App. 1, at 1-5, confirms that a few Latin American states (Argentina, Brazil, few Latin American states confirms that a are already mediat- and Peru) report that they Ecuador, Paraguay an ad hoc basis. parental kidnapping cases on ing international abd_pd05e2006.pdf. For more information on cross-border family mediation, see abd_pd05e2006.pdf. For more information on cross-border family mediation, Sarah Vigers, States has neither implemented nor funded a formal international States has neither implemented program to date. A Virginia-based parental kidnapping mediation National Center for Missing and non-profit organization, the offers parents involved in interna- Exploited Children (NCMEC), the option to mediate, and tional parental kidnapping disputes and attorneys for indigent attempts to secure volunteer mediators U.S. mediators and explore best parents. In an effort to prepare of Miami School of Law co- practices, NCMEC and the University parental kidnapping mediation hosted the first U.S. international General Affairs and Policy, Prel. Doc. No. 10 (March 2008), officially-designated U.S. Central Authority under the 1980 Hague Convention on the officially-designated U.S. Central Authority under the 1980 Hague Convention is Civil Aspects of International Child Abduction; the German Ministry of Justice Germany’s Central Authority under that treaty. Hague international parental abduction disputes agreed to engage Hague international parental abduction scheme with Germany’s well- in a bi-national pilot mediation BAFM. established mediation program, Means to Facilitate Agreed Solutions in Transfrontier Family Disputes Concerning Means to Facilitate Agreed Solutions in of the Hague Convention of 1980 Children Especially in the Context Responses to the Questionnaire parents to negotiate access. Telephone Interview with Denise Carter, Dir., reunite parents to negotiate access. Telephone (April 7, 2008). http://www.era.int/web/en/resources/5_2341_5038_file_en.7155.pdf. report Neither be addresses domestic violence other than a brief recommendation that mediators trained on domestic violence. 2008) The Hague Conference on Private International Law, to the author (Aug. 14, he (on file with author). Goicoechea cites in his e-mail to unpublished comments that in received from Latin American and Caribbean states’ Hague Central Authorities or are response to an inquiry into whether the Authorities are using mediation, interested in using mediation, to resolve international parental kidnapping disputes. 2008] of Family Mediation (Bundes-Arbeitsgemein- German Association PARENTAL DISPUTES KIDNAPPING schaft f ¨ According to Sarah cases involving Germany. parental kidnapping Permanent Bureau, Legal Officer of The Hague Vigers, former 63 International Social Argentina, France and the system actors in to resolve report formally engaging mediation Services (ISS) also kidnapping disputes. international parental \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 15 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 39 Side A 03/06/2009 09:29:42 03/06/2009 A 39 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 39 Side B 03/06/2009 09:29:42 M K C Y mutual, EDERATION OF F ID A S ’ ENDER OMEN G , W ANDBOOK H S ’ IOLENCE AND 49 V URVIVOR S 50 HE T OMESTIC allegations of abuse, I staffed court-based domestic violence III. D See generally (2005), http://www.womensaid.org.uk/domestic-violence-survivors-hand A. Gender-based Violence Much of the literature and advocacy surrounding domestic Much of the literature and advocacy As family mediation is increasingly used to resolve interna- is increasingly used to As family mediation nuanced phe- is a complex and culturally Domestic violence 49. with an Emphasis on the 1980 Hague Cross-Border Family Mediation 50. The United States Justice Department, Office on Violence Against Women, NGLAND clinics for a number of years. A number of the domestic violence cases I litigated or clinics for a number of years. A number of the domestic violence cases I litigated issued observed in court involved mutual allegations of violence. In some cases, judges mutual restraining orders. litigants who admitted, On rare occasions, I encountered of during the clinic’s intake process, to inventing or exaggerating a particular incident domestic violence in hopes of gaining some legal advantage over the alleged abuser for (e.g., getting the person legally excluded from a shared rental unit, retaliating infidelity by getting the person arrested, gaining an advantage in child custody proceedings, etc.). are bona fide. However, most domestic violence allegations book.asp?section=0001000100080001&itemTitle=The+Survivor%27s+Handbook (last book.asp?section=0001000100080001&itemTitle=The+Survivor%27s+Handbook upon visited Nov. 8, 2008). In the limited context of this paper, I will focus primarily violence between opposite-sex co-parents of a minor child. With respect to retaliatory, or contrived violence focuses on gender-based violence against women and girls violence focuses on gender-based occasioned by females’ because of the unique vulnerabilities serve as evidence that marginalized status. Various instruments tional parental kidnapping disputes, system actors are asking a kidnapping disputes, system tional parental kidnapping dis- Should international parental critical question: violence alle- when one parent raises domestic putes be mediated the other parent? gations against emotional include physical, sexual, psychological, nomenon. It can occur in public or in private life. or even financial abuse. It can gender, race, ethnicity, age and Domestic violence cuts across can be male, female, transsexual, socio-economic lines. The victim be the victim’s same-sex or oppo- or transgender. A batterer can child, parent or other family mem- site-sex partner, or the victim’s within the context of marriage, ber. Domestic violence can occur co-parenting relation- cohabitation, dating or in a non-intimate, may be legitimate, mutual, ship. Domestic violence allegations retaliatory, or contrived. Convention on the Civil Aspects of International Child Abduction, University of Convention on the Civil Aspects of International http://www.law.miami.edu/cle/cle_01_01. Miami School of Law, February 22-24, 2008, php?op=1. visited About Domestic Violence, http://www.ovw.usdoj.gov/domviolence.htm (last Nov. 8, 2008). E 64 2008. conference in February INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 16 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 39 Side B 03/06/2009 09:29:42 03/06/2009 B 39 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 40 Side A 03/06/2009 09:29:42 And, 52 Beijing Declaration and 109 (H. Durham & Tracey AR divorce, is prohibited. W 53 54 OMEN AND : W female-initiated ILENCES S Women and Armed Conflict: The Response of Humanitarian ¶ 112, A/CONF. 177/20 (Oct. 17, 1995). The United Nations General Assembly expressed con- General Assembly expressed The United Nations 51 ISTENING TO THE L Id. Nowhere are women full participants in society. Women Nowhere are women full participants education and health care. are disadvantaged in access to because of their tradi- They are considerably less mobile Their work remains grossly tional role caring for others...... [W]omen’s polit- unpaid, unrecognized and undervalued They are generally ical opportunities are severely limited. and participation in deci- denied access to power structures sion-making at all levels. . . . B. Agency and Empowerment in Protectionist inclinations, such as domestic violence- Protectionist inclinations, such , 54. Judith Gardam, 51. 48/104 Declaration on the Elimination of Violence Against Women, G.A. Res. 52. 53. Fourth World Congress on Women, Sept. 4-15, 1995, M K the 1995 Beijing Declaration and Platform for Action, formulated the 1995 Beijing Declaration and on Women, noted that “violence at the Fourth World Congress the achievement of the objectives against women is an obstacle to of equality, development and peace.” Gurd eds., 2005). Women’s and children’s travel and movement are restricted or Women’s and children’s travel and movement are restricted linked to the permission of male guardians. Women and children are treated as chattel of male partners or other male family mem- pre- bers. Maternal custody of children of a certain age-range is cern about “the long-standing failure to protect and promote those long-standing failure to protect cern about “the women.” in the case of violence against rights and freedoms Platform for Action, prompted mediation bans, are certainly comprehensible. Accord- prompted mediation bans, are are often powerless to draw atten- ing to Judith Gardam, women to posit, promote and implement tion to their own plight or solutions: preamble 85th. plen. mtg. (Dec. 20, 1993). Law Numerous states’ legal systems severely marginalize women and Numerous states’ legal systems severely marginalize women children. Divorce, or 2008] violence against community has acknowledged the international PARENTAL DISPUTES KIDNAPPING grave human rights epidemic and a distinctly women as a global in its pre- Nations (UN) General Assembly, violation. The United of Violence Declaration on the Elimination amble to the 1993 65 women consti- affirmed that “violence against Against Women, freedoms of women of the rights and fundamental tutes a violation rights and free- nullifies their enjoyment of those and impairs or doms . . . .” \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 17 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 40 Side A 03/06/2009 09:29:42 03/06/2009 A 40 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 40 Side B 03/06/2009 09:29:42 M K see C Y http://www. The question con- available at 55 Battered Immigrants and , Apr. 24, 2006, at 5, to empower her and secure critical rights to empower her and secure critical OMENTUM or M EGAL , L Jennifer, born and raised in the United States, meets and Jennifer, born and raised in the Ali, in Los Angeles, marries her Iranian-born husband, where he works as a physician. The happy couple buys a beautiful home in Encino, and a child is born of the mar- riage, a daughter, Anahita (Ana, for short). Over the years, the marriage breaks down, and Ali becomes increasingly The inclination to protect such a woman and her children The inclination to protect such In many states, a female victim of domestic violence is thrice- a female victim of domestic violence In many states, Giselle Aguilar Hass, Nawal Ammar & Leslye Orloff, 55. Tahirih This is particularly true of migrant women. The Virginia-based legalmomentum.org/site/DocServer/wwwbatteredimmsanduscspouses.pdf?docID= 635. fronting advocates is whether to protect these silenced women by fronting advocates is whether them find their voices through precluding mediation or to help carefully-structured elective mediation? can be powerful and well- from a coerced parenting agreement has the potential to situate a bat- intentioned. Family mediation to sign a parenting accord tered woman so that she feels pressured one that is not in her best that she does not genuinely support, interest or the child’s, and protections for the victim and her children that might other- and protections for the victim depriving a domestic violence wise be unrealizable. Summarily mediation, even for her own victim of the right to choose elective strips her of agency. Envision, protection, disempowers her and parental kidnapping for example, the following international scenario: also U.S. Citizen Spouses Justice Center points out that “immigrant [women] victims suffer more severe abuse, Justice Center points out that “immigrant [women] victims suffer more severe more often, and that abuse rates in marriages between U.S. citizens and foreign women are approximately three times higher than in the general U.S. population.” Tahirih Justice Center, Frequently Asked Questions (IMBRA) at 2, http://www. tahirih.org/legal/docs/Top10IMBRAFAQs(Final).pdf (last visited Jan. 2, 2009); marginalized. First, because she lacks status in her home state because she lacks status marginalized. First, the legal system, no access to property, education, (having little or of domestic her culture relegates matters etc.); second, because no protection or private sphere, offering her violence to the system actors may because even sympathetic redress; and third, defenseless, or inca- her as simple, uneducated, perceive and treat her own best interests or her pable of identifying and pursuing and in spite of the women’s child’s. Even in developed countries, still lack voice. rights movement, many women 66 prohibited from are denied property rights and cluded. Women support them- therefore unable to independently working, and are dependents. selves and their INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 18 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 40 Side B 03/06/2009 09:29:42 03/06/2009 B 40 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 41 Side A 03/06/2009 09:29:42 Post- , 17 NWSA J. 64, 81 (2005). By approaching women’s rights 56 57 Running from the Rescuers: New U.S. Crusades possess. do Post-Colonial Economies of Desire: Legal Representations of the ]. , 78 DENV. U. L. REV. 855, 866 (2001) [hereinafter Kapur, Gretchen Soderlund, See verbally and physically abusive toward Jennifer. She even- abusive toward and physically verbally husband abuse to police, who arrest her tually reports the mem- with battery. Ali, a highly respected and charge him is released on his own recognizance ber of the community, conviction with his wife, and fearing pending trial. Furious daugh- Ali kidnaps their now-teenaged and incarceration, Iran. He the next flight to his native ter, Ana, and hops as long that she will never see Ana again informs Jennifer marriage adds that he is arranging Ana’s as she lives, and in Iran. man, a close friend of his family to a much older Iran has her legal options and learns that Jennifer explores does not extradite paren- not signed the Hague treaty and charges in the United tal kidnappers to face criminal is unable to negotiate States. The U.S. State Department channels. Eventually, Ali Ana’s return through diplomatic to mediate a solution. indicates that he might be willing to use the mediation Jennifer suspects that he only intends her but, knowing as a forum to threaten and manipulate possible link to Ana, she that this represents her only wants to proceed with mediation. It is important that mediators and other system actors be 57. 56. Ratna Kapur, M K from a victimization framework, we may be stripping women of from a victimization framework, what agency they Colonial Economies acutely aware of their own cultural and gender biases. Where one acutely aware of their own cultural and gender biases. Where pro- of the states involved lacks domestic violence or child-abuse tections or relegates such concerns to the private sphere, or where of the alleged domestic violence victim has only a minimal level formal education, it can be particularly tempting for system actors inca- to perceive her as “infantile, civilizationally backward, and Against Sex Trafficking and the Rhetoric of Abolition Sexual Subaltern A domestic-violence-based mediation ban could deny this mother A domestic-violence-based mediation to secure her daughter’s return, the only opportunity that she has or learn news of her child’s health, facilitate some degree of access, these circumstances, even prop- welfare and whereabouts. Under may end in an impasse.erly conducted elective mediation Or, Prohibiting elective media- mediation could prove to be successful. will never see or hear from her tion could mean that this child the international women’s rights mother again. “The focus of “has been on violence against movement,” Ratna Kapur observes, women and their victimization.” 2008] PARENTAL DISPUTES KIDNAPPING 67 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 19 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 41 Side A 03/06/2009 09:29:42 03/06/2009 A 41 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 41 Side B 03/06/2009 09:29:42 M K 67 . J. C Y TS . R gender UM 62 autonomy . H ARV note 13, at pmbl., note 13, at pmbl., note 13, at art. 2; , 15 H supra supra note 13, at art. 1; U.N. note 13, at arts. 14, 26; supra note 13, at pmbl., art. 2. note 13, at pmbl.; ICESCR, note 13, at pmbl., arts. 16(d), Ratna Kapur observed supra supra 58 equality before the law supra It is easy to overlook or It is easy to overlook 66 supra 59 supra Even the most marginalized non-discrimination, note 56, at 881. 60 note 56, at 867. Kapur later alludes to 61 shared parenting rights and 64 supra supra note 13, at pmbl., art. 1. , , supra These rights implicate the autonomy to These rights implicate the autonomy 68 note 13, at art. 3; UDHR, note 13, at pmbl; ICCPR, note 13, at pmbl., arts. 2-4; ICCPR, note 13, at art. 1(3); ICESCR, note 13, at art. 2, para. 1; ICESCR, equal access to justice, note 16, at art. 15(1); ICCPR, note 13, at art. 14. The Tragedy of Victimization Rhetoric: Resurrecting the “Native” The Tragedy of Victimization Rhetoric: Resurrecting note 16, at arts. 16(d), 16(f); CEAFDW, 65 note 16, at art. 16; CEAFDW, persons to dignity, supra at 868. supra supra Id. all supra supra supra supra Post-Colonial Economies Post-Colonial Economies supra note 13, at pmbl., art. 2. note 13, at art. 7. supra . International human rights laws, norms and princi- . International human rights equality in the family, 63 supra supra choice note 13, at pmbl.; UDHR, Agency and empowerment are direct corollaries of Agency and empowerment are 60. Kapur, 66. ICCPR, 64. GR 21, 65. GR 21, 61. CEAFDW, 62. ICCPR, 67. GR 21, 59. Ratna Kapur, 63. CEAFDW, 68. ICCPR, 58. Kapur, 1, 6 (2002). arts. 16(d), 16(f). art. 2(1); ICESCR, UDHR, equity, Charter art. 1(2). UDHR, 16(f). that “[t]he construction of women exclusively through a lens of of women exclusively that “[t]he construction and international a spate of domestic violence has triggered on women’s are used to justify state restrictions reforms . . . which rights —the protection of women.” for Kathleen Barry and her ilk’s “strategy for saving those incapable of self- Kathleen Barry and her ilk’s “strategy determination.” underestimate the strength, tenacity and resilience that empow- the strength, tenacity and resilience underestimate the cycle of violence, victim to break free of ers a domestic violence without finan- tackle single-parenthood (often leave the batterer, with the chil- and unilaterally relocate, cial means or support), are migrating. . .in points out that “[w]omen dren, abroad. Kapur economic independence. Yet the search of increased autonomy and . .as fleeing from intolerable current discourse represents women. denies the subject any agency or conditions, a representation that ability to make affirmative choices.” women are not necessarily devoid of agency. women are not necessarily devoid responsibilities, choose whether or not to mediate a dispute involving one’s own choose whether or not to mediate and conditions the parent will child, and to choose what terms According to reunite Director stipulate to during mediation. ples entitle Subject in International/Post-Colonial Feminist Legal Politics Subject in International/Post-Colonial Feminist supra and and self-determination. 68 or autonomy.” pable of self-representation INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 20 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 41 Side B 03/06/2009 09:29:42 03/06/2009 B 41 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 42 Side A 03/06/2009 09:29:42 , 72 “Stereo- 71 NTERNATIONAL I . 221 (2000), at 233-35. OL ATIONAL AND decision shows an improved : N L. & P L ’ NT 69 OMEN www.womensenews.org. NOW filed an Hibbs W decision references the word “stereotype” 73 men. Gender stereotyping fosters caregiver Hibbs and IGHTS OF To Bellow Like a Cow: Women, Ethnicity, and the To Bellow Like a Cow: Women, Ethnicity, available at High Court Bars Gender Bias in Family Leaves , 33 N.Y.U. J. I R The Hague Child Abduction Convention Turns Twenty: The Hague Child Abduction Convention UMAN at 736. The H in Id. , , June 16, 2003, 39, 56 (Rebecca J. Cook ed., 1994). Coomaraswamy is a U.N. Special 39, 56 (Rebecca J. Cook ed., 1994). Coomaraswamy EWS Parenting N 70 SE ’ C. in and Discrimination Gender Stereotyping “Without equity in the family there will not be equity in in the family there will not “Without equity roles in about mothers’ and fathers’ Gendered expectations 72.Hibbs, 538 U.S. 721, 736 (2003). Nev. Dep’t of Human Res. v. 73. characterization of parenting leads to male For example, the gendered 71. issues surrounding the 1980 Hague Convention, For an exploration of gender 69. Carter, Dir., reunite (Apr. 7, 2008). Telephone Interview with Denise 70. Radhika Coomaraswamy, OMEN M K ERSPECTIVES W types about women’s domestic roles are reinforced by parallel ste- types about women’s domestic responsibilities for men.” reotypes presuming a lack of domestic Silberman points out that the drafters of the 1980 Hague Convention succumbed to Silberman points out that the drafters stereotyping and “gender politics.” and prevent them from competing in hegemonic practices that marginalize women states, from working at all. Inability to the formal workplace and, in some their children makes it difficult or impossible independently support themselves and for many women to exit the cycle of domestic violence. “Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. [S]tereotypes . . . fostered their employers’ stereotypical views about women’s [sic] commitment to work and value as employees.” “understanding of stereotypes, how they operate and how they limit women” by the “understanding of stereotypes, how they operate and how they limit women” Supreme Court. Jillian Jonas, amicus brief in support of the plaintiff. In total, thirty-one women’s and civil rights amicus brief in support of the plaintiff. In total, thirty-one women’s and civil by the organizations signed an amicus brief in support of plaintiff Hibbs submitted National Women’s Law Center. Real or constructed, gender stereotypes and ideology have a powerful impact on women approximately twenty times, underscoring the Court’s keen awareness of the negative for impacts of gender stereotyping. Wendy Weiser, of the National Organization Women (NOW), commented that the discrimination that, in turn, limits workers’ ability to get hired and promoted, or to discrimination that, in turn, limits workers’ ability to get hired and promoted, obtain choice assignments and coveted opportunities in the formal workplace. Rapporteur on women’s issues. consult Linda Silberman, society.” protectionist laws and childrearing can lead to discriminatory, harmful gender norms. practices that further entrench Discourse of Rights Gender Politics and Other Issues Institutions that exclude or excuse fathers’ participation in Institutions that exclude or mothers can actually contrib- parenting in the name of protecting ute to women’s marginalization. P 2008] experience for mediation can be an empowering Denise Carter, PARENTAL DISPUTES KIDNAPPING leave mediation violence: “by the time they victims of domestic stronger characters.” they are much 69 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 21 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 42 Side A 03/06/2009 09:29:42 03/06/2009 A 42 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 42 Side B 03/06/2009 09:29:42 , M K & C Y ENSUS EVIT L ANCY N , 2005 U.S. C see also UREAU 20 (Richard Delgado & Jean B RIMER ENSUS , A P Nevada Department of Human Nevada Department decision references the word “stereotype” HEORY T Hibbs 77 EGAL continues to present a universal obstacle continues to present a universal L 76 http://www.un.org/popin/icpd/conference/offeng/poa.html Protectionist mediation bans, whether trig- Protectionist mediation 74 acknowledged the interconnectivity of men’s acknowledged EMINIST 75 ,F . Out of an estimated 5.8 million “stay-at-home” parents, 5.6 million available at 538 U.S. at 732. The ERCHICK and only 143,000 are fathers. U.S. C http://www.census.gov. females R. V Hibbs, Stereotypes about women’s domestic roles are reinforced by Stereotypes about women’s domestic lack of domestic responsi- parallel stereotypes presuming a reinforcing stereotypes bilities for men. . . . These mutually that [forces] [create] a self-fulfilling cycle of discrimination the role of primary family women to continue to assume caregiver. . . . are facing threats to their In all parts of the world, women as a result of being lives, health and well-being their lack of power and overburdened with work and of requires policy and pro- influence. . . . Achieving change . alleviate their extreme gramme actions that will . . [private sphere] work. . . . responsibilities with regard to to . . . lessen the daily Greater investments should be made the greatest share of burden of domestic responsibilities, which falls on women. The U.S. Supreme Court in The U.S. Supreme In 1973, U.S. Supreme Court Justice Brennan observed that Court Justice Brennan In 1973, U.S. Supreme mothers 75. 76. million of For example, according to the most recent U.S. national census, 10.4 77. and Programme of Action of the UN International Conference on Population 74. Frontiero v. Richardson, 411 U.S. 677, 684 (1973); OBERT R Stefanic eds., New York University Press 2006). approximately nineteen times, underscoring the Court’s keen awareness of the approximately nineteen times, underscoring the Court’s keen awareness negative impacts of gender stereotyping. in the the 12.9 million primary caregivers (single parents living with their children) U.S. are [hereinafter Programme]. to women’s equality in both the public and the private spheres: to women’s equality in both the gered by domestic violence or by parental kidnapping, perpetuate violence or by parental kidnapping, gered by domestic disempowering the family by simultaneously inequality in their parenting fathers from exercising mothers and excluding rights and responsibilities. and women’s rights: are Development: ch. IV, Gender Equality, Equity and Empowerment of Women (1994), at 4.1, 4.11, protectionist laws and practices have historically disadvantaged and practices have historically protectionist laws not on a pedes- paternalism . . . [puts] women, women: “Romantic tal, but in a cage.” available at Private- and public- sphere rights are inextricably linked; Private- and public- sphere The comparatively limited participation of men in parenting, even The comparatively limited participation in developed countries, 70 INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 22 19-FEB-09 10:52 Resources v. Hibbs 25899_ial_40-1 Sheet No. 42 Side B 03/06/2009 09:29:42 03/06/2009 B 42 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 43 Side A 03/06/2009 09:29:42 : OMEN 79 W IGHTS OF R UMAN H in , 257 (Rebecca J. Cook ed., University of 78 ERSPECTIVES P 80 note 13, at pmbl. The United States has declined to ratify Toward a More Effective Guarantee of the Enjoyment of note 16. supra NTERNATIONAL supra I The role of women in procreation should not be a basis for in procreation should not be The role of women of children requires a discrimination . . . the upbringing men and women and soci- sharing of responsibility between the traditional role of men ety as a whole. . . . [A] change in society and in the family is as well as the role of women in men and women. needed to achieve full equality between have to bear and raise The responsibilities that women to education, employ- children affect their right of access to their personal develop- ment and other activities related burdens of work on ment. They also impose inequitable on women’s lives and women. . . . [These factors] impact health, as well as that also affect their physical and mental of their children. The international community has embraced gender-equality community has embraced The international 79. CEAFDW, 80. GR 21, 78. Cecelia Medina, M K ATIONAL AND N Pennsylvania Press 1994). CEAFDW, yet expounds the values that it embodies abroad and justifies certain foreign policy maneuvers on their basis. in the family context. Innumerable international human rights Innumerable international in the family context. obligations to pro- emphasize states’ instruments emphatically and decon- challenge gender stereotyping mote shared parenting, work. The characterization of reproductive struct the gendered of Discrimination the Elimination of All Forms Convention on its preamble that: sets forth in (CEDAW) Against Women Human Rights by Women in the Inter-American System The principle of equal division of parenting responsibilities The principle of equal division novel. Fourteen years ago, Chap- between men and women is not and Empowerment of Women) ter IV (on Gender Equality, Equity on of the Programme of Action of the UN International Conference Population and Development set forth the standard that: “[t]he is full participation and partnership of both women and men required in productive and reproductive life, including shared responsibilities for the care and nurturing of children and mainte- According to the Committee on the Elimination of Discrimination According to the Committee on division of labor foists a double bur- Against Women, the gendered can adversely impact their health den upon working women that children: and well-being, and that of their 2008] one empow- observed that “conquering Radhika Coomaraswamy PARENTAL DISPUTES KIDNAPPING the other.” ers you to conquer 71 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 23 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 43 Side A 03/06/2009 09:29:42 03/06/2009 A 43 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 43 Side B 03/06/2009 09:29:42 M K C Y UKE 107(c). ¶ . 829, 831 , 1989 D OMESTIC EV The Beijing D 12 (Niko Pfund 82 AW note 53, at . L. R L “Laws and legal 85 ARV supra to parental kidnap- AND THE , , 103 H OMEN EMEDY , W . 1037 (1996). Feminists have, at times, IDNAPPING WITH A R EN EV K : M Feminism for Men: Legal Ideology and the INE L , instead of treating domestic violence The same principles apply to unmarried The same principles IOLENCE Should Lawyers Care About Philosophy? 87 81 V ARENTAL Feminist Legal Methods ENDER note 77, at 4.1. G P , 43 UCLA L. R note 57, at 83. remedy By excluding or excusing men from equal par- By excluding or HE 84 note 16, at art. 16(18). Nancy Levit, 83 rebuttable affirmative defense , T supra supra EVIT supra L ONFLATING ANCY Men, women and children stand to gain tremendous bene- Men, women and children stand See generally 86 When confronted with parental kidnapping allegations, many When confronted with parental Nancy Levit advocates that, to bring men into the private Nancy Levit advocates that, 84. Katherine Bartlett, 87. Soderlund, 86. N 82. GR 21, 83. Fourth World Congress on Women, Sept. 4-15, 1995, 81. Programme, 85. IV. C (1990) (quoting Joseph Singer, ed., New York University Press 1998). Declaration and Platform for Action at the Fourth World Congress Platform for Action at the Fourth Declaration and men to share upon all states to: “encourage on Women called to provide their care and household work and equally in child even if they do not support for their families, share of financial live with them.” theory need to remove barriers for men and encourage possibili- theory need to remove barriers ties.” ignored men’s gender issues. According to Levit, some feminists fear that if scarce ignored men’s gender issues. According to Levit, some feminists fear that if resources are squandered on men, critical women’s issues will go unredressed. allegations as a and single co-parents. CEDAW Recommendation 21 on Equality in Recommendation CEDAW and single co-parents. unmarried parents Family Relations states that Marriage and . . . for the care and rights and responsibilities “should share equal children and family members.” raising of dependent ticipation in parenting and maintenance, we unwittingly “recreate ticipation in parenting and maintenance, [that we are] trying to identify the illegitimate power structures and undermine.” fits from the promotion of shared parenting and men’s equal fits from the promotion of shared Gretchen Soderlund posits integration into the private sphere. toward creating conditions that “feminists should be working envision and ultimately participate where all women and men can in their own liberation.” parental kidnappers raise domestic violence as an affirmative parental kidnappers raise domestic treat parental kidnapping as a defense. Some system actors domestic violence sphere, feminists must examine men’s experience with gender and sphere, feminists must examine have on men. the effects that gender stereotypes Construction of Maleness L.J. 1752, 1753 (1989)). 72nance of the household.” INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 24 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 43 Side B 03/06/2009 09:29:42 03/06/2009 B 43 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 44 Side A 03/06/2009 09:29:42 89 before Oct. 25, 1980, have done the parental and should Dec. 1, 1983) [hereinafter Hague opened for signature 90 entered into force the domestic violence the domestic at arts. 12-20. Despite the fact that slightly more than half of Despite the fact that slightly more both 91 See id. function of the Hague Convention, which restores the child to his And, article 13(b) of the Hague treaty creates a And, article 13(b) of the Hague 88 International Child Abduction Convention Between the United States of See jurisdictional A. Violence Defense The Domestic Many left-behind fathers complain that, the moment a kid- Many left-behind fathers complain Domestic violence may be raised as a rebuttable defense to may be raised as a rebuttable Domestic violence 90. the Domestic violence advocates and Hague judges routinely misunderstand 91. For example, in one unpublished San Diego Hague case, the respondent/ 88. 18 U.S.C. § 1204(c)(2) (2003). 89. M K T.I.A.S 11670, 1343 U.N.T.S. 89 ( kidnapping. Treaty]. purely mother asserted an Article 13b defense, stating that the U.S. had granted her and her mother asserted an Article 13b defense, stating that the U.S. had granted her and child domestic violence-based asylum. The U.S. Hague judge failed to evaluate or her state of habitual residence but not necessarily to the left-behind parent. In or her state of habitual residence but not necessarily to the left-behind parent. of many cases, the taking-parent accompanies the child back to his or her state habitual residence and retains physical custody of the child until the appropriate family court issues a judgment. The taking parent may submit a move-away request to the court in the child’s habitual residence, as he or she grave risk (e.g., domestic violence) defense to the child’s return. grave risk (e.g., domestic violence) America and Other Governments art. 13(b), napping mother brings domestic violence allegations, the left- napping mother brings domestic seem to abruptly dissolve as behind father’s rights and remedies or even facilitate the kidnapper. system actors become complacent is a mother alleging domestic vio- When the kidnapping parent officers “adjudicate” the domestic lence, some law enforcement instead of leaving fact-finding to violence defense on-the-scene, misapply Article 13(b) by the courts. Hague judges frequently as an automatic bar to the treating domestic violence allegations considering the applicant (left- child’s return, without properly of the foreign state’s ability to behind) parent’s rebuttal evidence protect the child. criminal custodial interference charges in the majority of U.S. interference charges in the criminal custodial Kidnapping the International Parental states. For example, defense to parental kid- Crime Act (IPKCA) offers an affirmative an incidence or pattern of domes- napping for defendants “fleeing tic violence.” abducting the child. The respondent may rebut the grave risk defense with evidence The respondent may rebut the residence has adequate remedies that the child’s state of habitual and resources to protect the child. 2008] domestic violence or improper application of the ping. Extralegal PARENTAL DISPUTES KIDNAPPING deprives par- the rule of law and summarily defense undermines of competent juris- of the right to have a court ents and children diction address 73 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 25 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 44 Side A 03/06/2009 09:29:42 03/06/2009 A 44 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 44 Side B 03/06/2009 09:29:42 M K C Y Parental kid- 95 . 103-390, at 2 (1993), O . N EP When a mother kidnaps her When a mother the abduction.” But children are not the only 93 is 94 many authorities are more likely many authorities 92 , taking-parents, and remain exceed- taking-parents, note 12. Parental Kidnapping: A New Form of Child Abuse male female International Parental Kidnapping: A New Law, A New supra was in any imminent harm. U.S. domestic violence-based was in any imminent harm. U.S. report, . L.Q. 235, 244 (1996) (quoting H.R. R child AM Violence and Child Abuse 1993 U.S.C.C.A.N. 2419, 2420). For more on parental kidnapping as child REUNITE , 30 F See B. of Domestic Parental Kidnapping as a Form Merritt McKeon characterized parental kidnapping as “one of Merritt McKeon characterized 93.judges to In this author’s experience, parental kidnapping often triggers U.S. 94. Merritt L. McKeon, 92. 95. P.C. Telephone Interview with Stephen Cullen, Principal, Miles & Stockbridge napping is a veritable form of domestic violence and child abuse, napping is a veritable form of gender. Maureen Dabbagh regardless of the perpetrator’s that international parental kid- describes the emotional impact napping has on left-behind parents: child, her behavior is often characterized as an act of love. is often characterized as an child, her behavior victims of parental abduction. Experienced Hague litigator Ste- victims of parental abduction. international parental kidnap- phen Cullen avers that mediating violence defense is complicated by ping cases involving a domestic the fact that “part of the violence to aggressively pursue to aggressively issue restraining orders for the child and left-behind mother, order professionally- monitored visitation for the abductor/father, entertain presumptions of parental left- unfitness on the abductor/father’s part, and may even qualify an undocumented behind mother and her child for immigration relief under the Violence Against Women Act (VAWA). ingly reluctant to press criminal charges or even to enforce civil to press criminal charges or even ingly reluctant his child’s parental When a father reports orders against mothers. reluctantly, if at all. system actors respond only kidnapping, some perceived his child, that act is consistently When a father kidnaps against both the cruelest imaginable form of abuse as perhaps the mother. child and the left-behind immigration remedies permit the victim/applicant to list her children as beneficiaries immigration remedies permit the victim/applicant that the children themselves suffered on her petition, without offering any evidence consider rebuttal evidence of the availability harm. The San Diego judge also failed to state of habitual residence. The judge of domestic violence resources in the child’s that all of the Hague elements were met. denied the child’s return despite the fact protect the family’s privacy.] [Identifying details omitted in order to abuse see Dorothy Huntington, the worst forms of child abuse.” Solution reprinted in that (1982), http://207.58.181.246/pdf_files/library/Huntington_1982.pdf (arguing child stealing is tantamount to child abuse). (Oct. 1, 2008). abduction cases, many of Cullen has litigated more than 200 Hague them pro bono, as an honored member of the International Child Abduction Attorney Network (ICAAN). whether the 74 are parental abductors INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 26 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 44 Side B 03/06/2009 09:29:42 03/06/2009 B 44 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 45 Side A 03/06/2009 09:29:42 HE , 21 why : T ARENTS HILDREN P C IDNAP HEN K HILDREN IN THE Fifteen per- , W 99 , C BDUCTED ARENTS EGAR A P BRAHMS & H HEN A note 98, at 284 (discussing http://uwf.edu/pcl/research/ REIF , W . 283 (July 1994), [hereinafter ALLY 126 (1983)). EL supra Parents Who Abduct: A Qualitative , EGAR . R When asked (post-recovery) NTERNATIONALLY 98 I AM available at L. H IDNAPPING ], Whatever the abductor’s impetus, K , 43 F 97 EBECCA ECOVERY OF (1992) [hereinafter G R & R ARENTAL Children as Pawns in Their Parents’ Fight For Control: HE P Parents Who Abduct REIF , T EADLINES L. G H . 129, 130 n.7 (2000) (quoting S ABBAGH EP Parents Who Abduct RAGEDY OF D 96 T . L. R HE EOFFREY Greif & Hegar, G TS EHIND THE : T AUREEN R B S ’ ]; Geoffrey L. Greif & Rebecca L. Hegar, See See Searching parents are . . . overcome by grief, guilt, confu- . . overcome by parents are . Searching then and panic . . . . Some start out strong, sion, frustration and dis- by the system, failures slowly become exasperated they are others are so distraught that appointments. Still or jobs, have successful relationships, unable to hold down losing a recovery efforts. Unlike even begin to coordinate for the usually has no resolution child to death, abduction or until the child is either recovered searching parent on hold, parents put their lives grown. Many searching little else in the recovery process that becoming so absorbed matters. Two parental kidnapping studies offer some insight into Two parental kidnapping studies 99. 98. 96. M 97. Anna I. Sapone, Note, OMEN M K IDNAP ROSSFIRE AMILIES W cent of the left-behind parents reported that their children exper- cent of the left-behind parents results of Greif & Hegar’s earlier study). Subjects were permitted to cite multiple causes. edf6481/week02/files/Parents_who_abduct.pdf. Greif & Hegar, to speculate as to why their children were abducted, seventy- to speculate as to why their parents polled in one study seven percent of the left-behind motivation was to hurt the left- answered that the taking parent’s percent cited the taking parent’s behind parent; twenty-three percent believed that the taking anger over their breakup; sixteen thirteen percent blamed pres- parent desired to be with the child; attributed the abduction to the sure from others; thirteen percent with the visitation regime; and taking parent’s dissatisfaction parent’s new marriage or nine percent deemed the left-behind the taking parent. relationship to be a force driving the impact of parental kidnapping on the left-behind parent and the impact of parental kidnapping severe and enduring. the child victim can be equally Study With Implications For Practice The Failure of the United States to Protect Against International Child Abduction C F K 14 (1997). Dabbagh’s own daughter was parentally abducted (by the child’s father) to the Middle East in 1992 at age two. Some parents kidnap to exact revenge against a former partner. Some parents kidnap to exact wonder, constantly tormented . . . . “Searching parents worry and longer lived than a beating or even It is a revenge far sweeter and a murder, for it never ends.” parents abduct their own children. 2008] PARENTAL DISPUTES KIDNAPPING 75 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 27 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 45 Side A 03/06/2009 09:29:42 03/06/2009 A 45 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 45 Side B 03/06/2009 09:29:42 , M K C Y EDIATION M IVORCE D note 98, at 34. note 98, at 286. Subjects were Parental kidnapping is Parental kidnapping supra , 101 AMILY AND supra , F IDNAP http://www.acrnet.org/about/initiatives/ K 102 ARENTS P RACTICE FOR P HEN available at , W Parents Who Abduct A subsequent study polled taking parents after A subsequent study EGAR 100 TANDARDS OF & H S REIF G Greif & Hegar, ODEL See See C. and “Offender” Casting the Roles of “Victim” Parental kidnapping, like other forms of abuse, can engender Parental kidnapping, like other Ideology and nomenclature surrounding domestic violence 101. 102. M 100. Standard XI(A)(2) (1994), permitted to cite multiple motives. an acute imbalance in bargaining power. The simple fact that one an acute imbalance in bargaining of the child can yield a coerced parent has physical possession in disputes involving states that mediation outcome, particularly and states not compliant with lack parental kidnapping remedies left-behind parent may feel com- treaty obligations. A devoted terms and conditions if he or she pelled to agree to repugnant or protect his or her child. The believes it is the only hope to access parents is exacerbated in cases power imbalance between the kidnapper and the left-behind par- where the batterer is also the disadvantaged. At least one ent is twice victimized and doubly of Practice for Family and mediation code, the Model Standards the gravity of parental kidnap- Divorce Mediation, acknowledges consider suspending or termi- ping by requiring that the mediator participant has [abducted] or is nating mediation “when a threatening to abduct a child.” rarely an act of love. QualityAssurance/standards-conduct.htm#family. These Standards were a joint QualityAssurance/standards-conduct.htm#family. These Standards were a initiative of the American Arbitration Association, the American Bar Association (Section of Dispute Resolution), and the Society of Professionals in Dispute Resolution. their children were recovered: Twelve of seventeen taking parents recovered: Twelve of seventeen their children were contact after experiencing unsatisfactory said that they abducted system and professionals.with the court Of those twelve, six neglected or sub- children were being abused, claimed that their other parent; five home environment by the jected to an unhealthy that anger custody terms; and two admitted blamed unfair parent was a factor. towards the other and parental kidnapping evolve as system actors become increas- ingly well-versed in the phenomena. For example, many contem- the porary advocates promote use of the term “survivor” in lieu of 76 abduction and one or force in the course of the ienced violence the child to physical the taking parent subjected third alleged that or sexual abuse. INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 28 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 45 Side B 03/06/2009 09:29:42 03/06/2009 B 45 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 46 Side A 03/06/2009 09:29:42 Y 105 M a sur- ITHOUT and W OT , N terms used to describe OFFER H after (Finland, 2002). From any ILLIAM and international parental kid- & W before AUGHTER victim-offenders involved in a victim-offenders involved in e Entertainment 1991). The film is based an offender. System actors con- D Y two AHMOODY this mother’s battery and subjuga- and (Path´ M M ETTY ITHOUT B AUGHTER witness D See Y M Both terms have powerful contextual implica- Both terms have 103 ITHOUT (St. Martin’s Press 1987). Mahmoody shares, from her perspective, the W conjures a particularly poignant example depicted in the conjures a particularly poignant And, a domestic violence victim who kidnaps his or her And, a domestic violence victim OT 104 For many moviegoers, the phrase For many moviegoers, the phrase M K 104.of Note the self-descriptive use of the term “survivor” in the testimonials 105. N 103. Victim and survivor are not simply AUGHTER vivor. battered persons. There is a considerable body of scholarship behind the distinction. adults who were parentally kidnapped as children, at http://takeroot.org/missing.php (follow hyperlinks to any of the names listed). perspective, the Mahmoody family’s experience highlights the critical need to develop safe, lawful alternatives to self-help remedies in states not party to, or not compliant with, the 1980 Hague Convention. parental kidnapping dispute. fronted with the domestic violence defense often overlook the pos- fronted with the domestic violence sibility that there could be upon a non-fiction book. tion, so we require no neutral fact-finder to assess the veracity or tion, so we require no neutral allegations. The story ends with severity of her domestic violence arrival on U.S. soil. The film glo- mother and daughter’s emotional remedy without examining rifies an extremely dangerous self-help tions. For example, a domestic violence advocate might prefer to a domestic violence advocate tions. For example, to pass a bill, when pressuring legislators use the term “victim” a victim directly. “survivor” when addressing but prefer the term use the term “vic- the prosecutor might elect to In criminal court, or jury. In an empathy or outrage from a judge tim” to inspire court, counsel for abduction case in civil international parental domestic violence (taking parent) who alleges the respondent “victim” to distract characterize that client as a might prefer to to justify the abduc- the client’s own malfeasance, the court from rights over the left-behind par- tion, or to prioritize the abductor’s A parent who experiences ent’s rights or the child’s rights. who experiences parental kidnap- domestic violence, or a child as a victim ping, may be simultaneously characterized story of her international custody battle for her daughter. The story has become book and the film grossly misrepresent critics claim that Mahmoody’s controversial – Iran and Iranians. Iranian-born Finnish director, Alexis Kouros, made a documentary film in response titled W film, “Not Without My Daughter,” starring Sally Field as a bat- film, “Not Without My Daughter,” escapes Iran and her abu- tered American mother who narrowly their young daughter in tow. sive Persian husband with child, or a left-behind parent who battered his or her partner, may child, or a left-behind parent who be simultaneously a victim D Moviegoers actually 2008]term “victim.” PARENTAL DISPUTES KIDNAPPING 77 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 29 19-FEB-09 10:52 napping C Y 25899_ial_40-1 Sheet No. 46 Side A 03/06/2009 09:29:42 03/06/2009 A 46 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 46 Side B 03/06/2009 09:29:42 M K . C Y 5-7 See, Gender ANDBOOK 108 H S ’ attempted murder URVIVOR parents. S HE both , T NGLAND E The alleged batterer may be the 107 in an international parental kidnap- in an international victim EDERATION OF F http://www.womensaid.org.uk/core/core_picker/download. mutual, that there is always a batterer and a victim. ID A § 836(c)(3) (2008). advocates posit that Some domestic violence S ’ never ODE C OMEN available at W There is no follow-up on the lasting effects of the abduc- on the lasting effects of There is no follow-up ENAL 106 . P AL Casting the role of Casting the role see also , C 107. Against For the United States Department of Justice Office on Violence 108. was In my experience, courts sometimes find that the domestic violence 106. have the potential to endanger the child In my experience, self-help remedies Women’s definition of domestic violence, see http://www.ovw.usdoj.gov/domviolence. htm; (rev. 2007), stereotyping domestic violence detracts from mitigating circum- stereotyping domestic violence between partners or against the stances involving mutual violence to eradicating domestic violence child. A genuine commitment violence be entitled to the requires that male victims of domestic to which female victims are same rights, remedies, and resources parental kidnapping context, male entitled. In the international report domestic violence victims of domestic violence infrequently victims. Rarely, if ever, do men or self-identify themselves as violence defense to international assert an affirmative domestic ever, are men denied the option to parental kidnapping. Rarely, if taking parent, the left-behind parent or taking parent, the left-behind ping dispute involving domestic violence counter-allegations is a domestic violence counter-allegations ping dispute involving ramifications. The domestic vio- complex exercise that has serious may be the child’s mother, father, lence victim (or alleged victim) sibling, or even the child itself. asp?id=1346. orders mutual or in self-defense. In some cases, a court will issue mutual restraining against the parties. Some jurisdictions situate law enforcement authorities to identify which party was the primary aggressor following a finding of mutual aggression. domestic violence is tion or parental separation on the little girl, no mention of the left- separation on the little girl, no tion or parental The storyteller agony over losing his only child. behind father’s bias, and legiti- audience’s gender bias, cultural relies upon the concerns about any domestic violence to dispel mate outrage at by the domestic or harms perpetrated crimes, rights violations, violence victim/kidnapper. e.g. and others, and motivate the family court to subsequently deny the left-behind parent and others, and motivate the family court that a lawful act in one jurisdiction could custody. Many taking parents are unaware that criminal penalties could be severe; that constitute a criminal offense in another; own nationals to face criminal charges numerous countries will extradite their is party to international treaties on parental abroad; or even that their own country some abduction. In 2006, for example, one desperate U.S. left-behind mother hired men to snatch back her child from the child’s abductor/father in Egypt. In the process of executing the plot, the men poisoned the father and were ultimately apprehended. The mother now has custody of her child, but she is the subject of an extradition request from Egypt to the United States; among the charges is 78 victim-kidnapper’s or other ramifications of the the possible legal actions. INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 30 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 46 Side B 03/06/2009 09:29:42 03/06/2009 B 46 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 47 Side A 03/06/2009 09:29:42 IGHTS R UMAN H ONFLICTING C ALANCING V. B A. The Rights of the Child The international Convention on the Rights of the Child Every parental kidnapping case involves at least one child Mediators and other system actors who work parental kid- other system actors who work Mediators and M K (hereinafter CRC) recognizes that “the child, by reason of his (hereinafter CRC) recognizes that “the child, by reason of and physical and mental immaturity, needs special safeguards and at least two parents (or legal guardians). Each individual pos- and at least two parents (or legal guardians). Each individual sesses certain rights and, in these highly contentious cases, those sys- rights frequently come into stark conflict. It is important that tem actors identify, understand, and address each party’s respec- tive rights. napping cases involving domestic violence allegations must resist domestic violence allegations napping cases involving as a domestic vio- to treat parental kidnapping the temptation as a rebuttable of treating domestic violence lence remedy instead kidnapping. Both parental kidnap- affirmative defense to parental violence allegations should be thor- ping allegations and domestic and adjudicated. Appropriate oughly and formally investigated be taken to protect and counsel criminal and civil actions should rehabilitate offenders. Domestic victims and deter, punish, and must be addressed through the violence and parental kidnapping of effective, directed remedies implementation and enforcement parental kidnapping laws and resources. Gender-discriminatory critical need to implement or and practices detract from the violence institutions. When reform inadequate domestic focus exclusively or primarily mediators and other system actors violence counter-allegations, on the parental kidnapper’s domestic rights of others victimized in the they neglect or even violate the Addressing domestic violence or course of a parental kidnapping. discriminatory parental kidnap- child abuse indirectly, through to three victims (the victim of ping laws or practices, does injustice violence victim, and the left- parental kidnapping, the domestic the rule of law. behind parent), and undermines 2008] status. Casting a basis of domestic violence victim mediate on the PARENTAL DISPUTES KIDNAPPING in an international as the sole or principle victim battered woman with considerable dispute is a tactic used parental kidnapping to distract kidnappers and their advocates success by parental 79 and victimization, addressing the child’s rights system actors from parent. and victimization of the left-behind and the rights \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 31 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 47 Side A 03/06/2009 09:29:42 03/06/2009 A 47 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 47 Side B 03/06/2009 09:29:42 M K C Y Children 111 “In all actions 109 Id. Parental kidnapping remedies, includ- Parental kidnapping 110 112 at art. 3(1). at art. 9(1). and the United All U.N. member nations except Somalia at art. 8(1)-(2). Id. Id. Id. The CRC sets forth guiding principles for children’s human The CRC sets forth guiding principles Every child is entitled to the right to have a competent court Every child is entitled to the right 111. 109. 1448 Convention on the Rights of the Child pmbl., Nov. 20, 1989, 28 I.L.M. 110. 112. may have a right to conclusively prove legal paternity (a biological may have a right to conclusively established through the parents’ father-child relationship, usually “States [shall] undertake to mutual stipulation or DNA testing): to preserve his or her identity, respect the right of the child family relations . . . without including nationality, name and a child is illegally deprived of unlawful interference . . . . Where . . . shall provide appropriate assis- . . . his or her identity, States tance and protection.” concerning children . . . the best interests of the child shall be a . . . the best interests of concerning children primary consideration.” ing mediation, are not always child-focused. When parents or are not always child-focused. ing mediation, rights or negotiate do battle over their parental legal guardians needs, and rights the child’s perspective, parenting agreements, are assigned and unrequited. Very few children can go unheard course of interna- or guardians ad litem in the minor’s counsel Counsel for the kidnapping mediation or litigation. tional parental for the adult has a duty to zealously advocate mother or the father adult’s perceptions about what is client and advance only that best for the child. . . . shall ensure that a child shall rights. It provides that “[s]tates parents against their will, except not be separated from his or her to judicial review determine, when competent authorities subject and procedures, that such sepa- in accordance with applicable law interests of the child.” ration is necessary for the best States have ratified the CRC. Article 9 cites abuse or neglect as examples. Article 9(3) to requires that states ensure that a child who is separated from a parent is able maintain personal relations and direct contact with both parents on a continuous basis, except where contrary to the child’s best interests. of law determine the nature and extent of the parent-child rela- of law determine the nature and are unable to reach a mutu- tionship in the event that the parents In cases where no legal or ally acceptable parenting agreement. diplomatic remedy exists to facilitate the rule of law, and media- tion is the sole available means by which to procure the parties’ sum- presence and participation, we violate the child’s rights if we marily sever the parent-child relationship by banning elective [hereinafter Convention on the Rights of the Child] (quoting Declaration of the Rights [hereinafter Convention on the Rights of the Child] (quoting Declaration of the of the Child, G.A. Res. 1386 (XIV), ¶ 3, U.N. Doc. A/4059 (Nov. 20, 1959)). 80 . .” appropriate legal protection . . care, including INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 32 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 47 Side B 03/06/2009 09:29:42 03/06/2009 B 47 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 48 Side A 03/06/2009 09:29:42 116 Maria da note 13; ICESCR, In 117 supra ; Convention on the Rights 114 note 13; ICCPR, Sept. 3, 1981). For historical background supra , Commission on the Inter-American held that the state is obligated to “conduct held that the state is obligated entered into force 28 I.L.M. 291 (1989). note 109; UDHR, at 139. supra The concept that a child’s rights may supersede its par- a child’s rights may supersede The concept that The state “has a legal duty to take reasonable steps to The state “has a legal duty to reprinted in 113 at 155. 115 Id. See id. B. Rights Domestic Violence Victims’ note 13. Numerous treaties establish states’ obligations to protect Numerous treaties establish An oft-articulated principle in the international human rights principle in the international An oft-articulated M K 116. 117. 114.rights, For example, when the victim-parent’s rights conflict with the child’s 115. (July Velasquez-Rodriguez Case, Inter-Am. Ct. H.R. (ser. C) No. 4, at 91, 152 113. Against Convention on the Elimination of All Forms of Discrimination of the Child, and international sources of children’s rights, see generally the Geneva Declaration of and international sources of children’s rights, see generally the Geneva Declaration the Rights of the Child, 1923-1924 O.J. Spec. Ed. (21) 43 (League of Nations), Human Rights concluded that states have an affirmative due dili- Human Rights concluded that “serious, impartial and exhaustive gence obligation to conduct a and state action that prevented investigation”; identify events and rapid and effective prosecution; adopt corrective measures; afford the domestic violence victim a fair trial, judicial protection, itself so as to effectively ensure the free and full exercise of human itself so as to effectively ensure rights.” ents’ rights raises important questions in parental kidnapping important questions in parental ents’ rights raises disputes involving domestic violence. prevent human rights violations” by means “legal, political, prevent human rights violations” and to investigate thoroughly and administrative and cultural” and victims compensated. ensure that violations are punished should the child’s rights trump? 29, 1988), women from domestic violence. The Inter-American Court of women from domestic violence. the scope of positive liberties Human Rights (IACHR) has clarified duties of states. The IACHR in and corresponding affirmative Women, Art. 16(d), 16(f) ( available at http://www.un-documents.net/gdrc1924.htm supra The IACHR found human rights to be inherent attributes of The IACHR found human rights sovereignty. human dignity superior to state context is “[i]n all cases the interests of the child shall be para- all cases the interests of the context is “[i]n mount.” Velasquez-Rodriguez 2008] If media- of domestic violence allegations. mediation on account PARENTAL DISPUTES KIDNAPPING vindicate the child’s available alternative then, to tion is the only as an availa- must be presented to both parents rights, mediation media- international parental-kidnapping ble option. An effective 81 rights to safety, emphasize the child’s tion protocol should and access to both parents. stability, well-being, \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 33 19-FEB-09 10:52 Penha Fernandes v. Brazil C Y 25899_ial_40-1 Sheet No. 48 Side A 03/06/2009 09:29:42 03/06/2009 A 48 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 48 Side B 03/06/2009 09:29:42 M K 129 C Y gender 122 note 13, at pmbl., note 13, at pmbl., empowerment http://www1.umn.edu/ , ¶ 1, U.N. Doc. E/C.12/ , ¶ 1, U.N. Doc. E/C.12/ supra supra note 13, at art. 1; U.N. note 13, at arts. 14, 26; note 13, at pmbl., art. 2. note 13, at art. 2; UDHR, 119 equality before the equality before note 13, at pmbl; ICESCR, note 13, at pmbl., arts. 16(d), 126 supra supra supra supra , ¶ 1, U.N. Doc. E/C.12/1999/10 supra supra available at shared parenting rights and shared parenting non-discrimination, 124 121 128 note 13, at pmbl., art. 1. A state’s failure to comply with the due A state’s failure supra 118 , Case 12.051, Inter-Am. C.H.R., Report No. 54/01, OEA/ , Case 12.051, Inter-Am. C.H.R., Report note 13, at art. 3; UDHR, note 13, at pmbl., arts. 2-4; ICCPR, note 13, at pmbl; ICCPR, equal access to justice, equal access to note 13, at art. 1(3); ICESCR, note 16, at art. 15(1); ICCPR, note 13, at art. 14. note 13, at art. 2(1); ICESCR, note 16, at arts. 16(d), 16(f); CEAFDW, 125 note 16, at art. 16; CEAFDW, supra supra supra General Comment No. 15: The Right to Water supra , U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & , U.N. Econ. & Soc. Council [ECOSOC], supra supra supra supra at ¶¶ 55-58. note 13, at art. 7. supra equality in the family, equality in the The right of every domestic violence victim parent to domestic violence victim The right of every 123 120 supra General Comment: The Right to Education and self-determination. General Comment No. 12: The Right to Adequate Food General Comment No. 12: The Right to See id. See, e.g. Da Penha v. Brazil note 13, at pmbl., art. 2. , “an indispensable means of realizing other human rights.” , “an indispensable means of realizing note 13, at pmbl; UDHR, Elective mediation can be characterized as an Elective mediation can be characterized International human rights advocates and instruments human rights advocates and International 127 126. ICCPR, 119. 121. CEAFDW, 129. U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural 124. GR 21, 125. GR 21, 122. ICCPR, 127. GR 21, 120. 128. ICCPR, 123. CEAFDW, 118. arts. 16(d), 16(f). art. 2(1); ICESCR, equity, humanrts/cases/54-01.html. 2002/11 (Nov. 26, 2002) (recognizing right to water as indispensible to human 2002/11 (Nov. 26, 2002) (recognizing dignity); Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural U.N. Rights, 1999/5 (May 12, 1999) (recognizing right to adequate food as important to enjoyment 1999/5 (May 12, 1999) (recognizing right of all rights). Charter art. 1(2). Rights, UDHR, 16(f). (Dec. 8, 1999). law, responsibilities, diligence standard would constitute a pattern of discrimination would constitute a pattern diligence standard violence against women. condoning domestic Ser.L/V/II.111, doc. 20 rev. at 704 ¶ 61 (2000), Ser.L/V/II.111, doc. 20 rev. at 704 ¶ 61 Cultural Rights, choose independently whether or not to mediate implicates an whether or not to mediate choose independently rights: dignity, array of human increasingly emphasize the indivisibility of certain human the indivisibility increasingly emphasize rights. supra supra For example, most international human rights instruments guar- For example, most international gender-based discrimination. antee women protection from general principle of non-dis- According to Cecilia Medina,“[t]he concerning sexual discrim- crimination and the specific provisions any domestic legal provision that ination are enough to challenge such as legal incapacity . . . [or] discriminates against women, 82and just compensation. INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 34 19-FEB-09 10:52 right 25899_ial_40-1 Sheet No. 48 Side B 03/06/2009 09:29:42 03/06/2009 B 48 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 49 Side A 03/06/2009 09:29:42 OMEN dis- inter W de facto IGHTS OF R According to the UMAN 132 Whether a mother H These fundamental 130 in 133 , 131 a woman is subjected to domes- or http://www.csulb.edu/~mfiebert/assault.htm. ), note 12. supra Toward a More Effective Guarantee of the Enjoyment of Report, REUNITE See C. Left-Behind Parents’ Rights Increasingly, international rights instruments emphasize the Increasingly, international rights A negative consequence of viewing domestic violence and of viewing domestic A negative consequence , rights to life, equality, and security. , rights to life, equality, and M K 133. 48/104, Declaration on the Elimination of Violence Against Women, G.A. Res. 132. For a thorough account of studies documenting women’s aggression toward 130. Cecilia Medina, 131. parate discriminatory impact on women – more women than men more women impact on women parate discriminatory – majority of interna- domestic violence and the report experiencing kidnappers are mothers. tional parental United Nations General Assembly, all men and women are enti- United Nations General Assembly, human rights including, tled to enjoy certain fundamental is the left-behind parent or the taking parent, precluding her from parent or the taking parent, is the left-behind right to choose children by exercising her representing her of non-discrimina- to mediate violates the principle whether or not have a mediation bans tion. Domestic violence-based rights are violated when a man rights are violated when a man art. 3, U.N. Doc. A/RES/48/104 (Dec. 20, 1993). tic violence. Characterizing domestic violence as something that tic violence. Characterizing domestic kidnapping as a crime commit- impacts only women, or parental harm suffered by male victims, ted only by men, minimizes the their offenders, and deprives deters men and boys from reporting The autonomy of every parent to male victims of their rights. may prove indivisible from and choose whether or not to mediate political, social, economic and indispensable to a bundle of civil, cultural rights. their partners, see Martin S. Fiebert, Professor, Cal. State Univ, Long Beach, An References Examining Assaults By Women On Their Spouses Or Male Partners: Annotated Bibliography (Sept. 2008 importance of equal participation in parenting. The Committee on importance of equal participation the Elimination of Discrimination Against Women has embraced gender-equality in the parenting context. The Committee requires that “[s]tates . . . should ensure that by their laws both parents, parental kidnapping through a gendered lens is that many reme- through a gendered lens parental kidnapping exclusively to female victims or dies and resources are applicable attention to the dispa- are less accessible to men. Conscientious can have upon women need not rate impact that domestic violence against men. diminish the gravity of violence Human Rights by Women in the Inter-American System 257, 271 (Rebecca J. Cook ed., 1994). To illustrate my point, I have inserted [men] 257, 271 (Rebecca J. Cook ed., 1994). To illustrate my point, I have inserted where the author said “women.” 2008]representing their children.” exclusion from PARENTAL DISPUTES KIDNAPPING 83 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 35 19-FEB-09 10:52 alia C Y 25899_ial_40-1 Sheet No. 49 Side A 03/06/2009 09:29:42 03/06/2009 A 49 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 49 Side B 03/06/2009 09:29:42 M K not C Y kid- and IDNAPPING LLEGATIONS K A L.J. 57 (1984). S ’ and that “the child . . . and that “the child note 109. 135 ARENTAL OMEN Absent careful domestic IOLENCE 138 P . W V supra ARV , 7 H OMESTIC 137 D NTERNATIONAL I Mediation of Wife Abuse Cases: The Adverse Impact of note 16, at ¶ 20. It is interesting to note that the U.S. has NVOLVING I The Convention on the Rights of the Child requires The Convention supra EDIATING 134 at art. 7. In essence, this principle is tantamount to a presumption principle is tantamount to a In essence, this 136 Id. ISPUTES Mediating an international parental kidnapping dispute Mediating an international Practitioners and scholars who subscribe to the theory that a Practitioners and scholars who VI. M D 136. 137. Like most legal presumptions, it should be rebuttable. 138. Lisa G. Lerman, 134. GR 21, 135. Convention on the Rights of the Child, nappers sometimes attempt to use family mediation as an oppor- nappers sometimes attempt to manipulate, control, stalk tunity to threaten, harass, intimidate, or otherwise harm the other parent. shall have the right to know and be cared for by his or her par- right to know and be cared for shall have the ents.” violence screening, appropriate safeguards and rigorously trained even mediators and attorneys, the batterer or the kidnapper may succeed in coercing the other parent into signing a parenting not accord that he or she does not truly support, and which does that states ensure that children have access to both parents, with- that children have access to that states ensure gender. on the basis of the parent’s out discriminating It stipu- the rights . . . [of] . . . shall respect and ensure lates that “states kind, irrespective of discrimination of any each child . . . without or her parent’s . . . sex,” the child’s or his in favor of joint-parenting. involving domestic violence allegations can prove a precarious, involving domestic violence allegations exercise. Batterers challenging and highly controversial spouse or partner who has abused his or her co-parent cannot be a spouse or partner who has abused to separate the child’s interests fit parent may find it less difficult from the victim-parent’s.batterer Nonetheless, even a convicted court determine the nature and is entitled to have a competent that best serves the child’s extent of the parent-child relationship unsupervised visitation following safety and wellbeing (e.g., classes; supervised or profession- parenting or anger management termination of parental ally-monitored visitation; or permanent paternity. rights) and to legally establish Informal Dispute Resolution on Women ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEAFDW). 84 they live with their marital status and whether regardless of their for their share equal rights and responsibilities children or not, children.” INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 36 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 49 Side B 03/06/2009 09:29:42 03/06/2009 B 49 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 50 Side A 03/06/2009 09:29:42 . . T ISP , 77 S Lucy S. . J. D T 57 (2000); S mediation HIO While there see also 140 SSUES . 150 (1994); Rene 142 I , 17 O 139 EGAL SYCHOL . L . P AM ONTEMP & L. 145 (2003); , Prefatory note (amended 2003). , 8 J. F CT A OMEN W Child and Family Coping One Year After , 11 J. C OF Domestic Violence: Alternatives to Traditional The Hague Convention on the Civil Aspects of 391, 423 (2000). EDIATION J. AW . M ARY L L ’ NIF . & M M Luisa Bigornia, In some cases, mediation can even improve com- In some cases, mediation can RANSNAT Jeanine Lewis, 141 , 9 W Mediating Family Disputes in a World with Domestic Violence: How to , 13 T . 291 (2003); U EV Starting Over: The Heuristics of Family Relocation Decision Making available mechanism to ensure an abducted child’s safety to ensure an abducted child’s available mechanism See, e.g., See generally L. R . 95 (2001). S Nonetheless, where the states involved lack legal or diplo- the states involved lack Nonetheless, where ’ only M K 142. 141. Steegh, For more on the potential benefits of family mediation, see Nancy Ver 139. parents (particularly those who are In my experience, many immigrant 140. its systemic response to domestic violence, Currently, no state has perfected ESOL OHN R J McGough, Katherine Kitzmann & Robert Emery, L. Rimelspach, can potentially compensate for ineffectual remedies by affording compensate for ineffectual remedies can potentially build in protective parents an opportunity to system actors and cooperative co-parenting terms and craft a safe, appropriate, a domestic violence victim charged regime. Mediation may provide an alternative to facing with international parental kidnapping and incarceration. The option to criminal prosecution, extradition solution could prevent a desperate, mediate a mutually agreeable unilateral actions that place disenfranchised parent from taking at risk of grave harm. Elective the child, the parent and others the cost, stress, delay and uncer- mediation can help parents avoid greater control over the outcome tainty of litigation and maintain of the dispute. is never a valid excuse for domestic violence or abuse, it is always is never a valid excuse for domestic munication, facilitate collaborative parenting, and diffuse under- munication, facilitate collaborative exacerbated abuse. lying conflicts that motivated or and well-being, secure the child’s return or facilitate appropriate secure the child’s return or facilitate and well-being, states that are non- In disputes involving access to both parents. or lack effective international treaty obligations compliant with and child protection institutions, domestic violence matic parental kidnapping remedies, mediation may prove to be kidnapping remedies, mediation matic parental the Mediated and Litigated Child Custody Disputes Criminal Prosecution of Spousal Abuse International Child Abduction: When Domestic Violence and Child Abuse Impact the International Child Abduction: When Domestic Violence and Child Abuse Impact Goal of Comity undocumented) face gut-wrenching choices about whether to abduct or abandon their undocumented) face gut-wrenching choices a batterer-parent. Domestic immigration law foreign-born children to the sole care of for coercion. reform could help to reduce the potential Some advocates criticize the 1980 Hague child abuse or parental kidnapping. violence, particularly in light of the Convention’s ability to address domestic for summary nature and jurisdictional function of Hague proceedings, and call their reforms to make the treaty more effective and responsive to victims and children. Devise a Safe and Effective Court-Connected Mediation Program Yes, No, Maybe: Informed Decision Making About Divorce Mediation in the Presence of Yes, No, Maybe: Informed Decision Making About Divorce Mediation in the Presence Domestic Violence 2008] interests, or those of the child. serve his or her PARENTAL DISPUTES KIDNAPPING 85 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 37 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 50 Side A 03/06/2009 09:29:42 03/06/2009 A 50 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 50 Side B 03/06/2009 09:29:42 , M K 143 AW C Y The L AMILY . § 43-29939 In some F 145 & L., 749, 782- TAT Y ’ . S OL EV . P OC . R EDIATION IN . 255, 267 (1994); Veronica S EB N , M EV Douglas B. Knowlton & Tara Lea ENDER The International Abduction of . 7, 8 (2005); Merle H. Weiner, IOLENCE see also , Aug. 20, 2007, http://www.abanet.org/ Del. Code Ann. tit. 13, § 711A (2007). And, in some jurisdictions, V see also DVOC . U. J. G 147 M , 70 N.D. L. R . A to balance negotiating power, and to balance negotiating power, AM see also OMESTIC NITIATIVE , 11 A 146 I D & F . § 43-2939 (2007). AW Initiative Supports Push for Gender Justice in China L NON TAT ’ § 6-6-20 (1975); HILD § 6-6-20; . S note 3, at 245-48; ODE OMM ODE EV J. C ULE OF C . C R . R . C N supra ’ N ’ LA LA EB SS A SS N Other jurisdictions refer the parties to a diversion Other jurisdictions refer the HITTIER Hyeon-Ju Rho, , A A A 144 Mediation in the Presence of Domestic Violence: Is it the Light at the End Mediation in the Presence of Domestic Violence: AR AR e.g. Krieger, , , 5 W B B See, e.g., See, e.g., See, e.g., See See A. Mediation Bans Domestic Violence Prompted Tremendous discord persists over whether to mediate paren- Tremendous discord persists over Global domestic violence and parental kidnapping advocacy violence and parental kidnapping Global domestic 147. 144. 145. 146. 143. MERICAN MERICAN A (2007). 797 (2003). jurisdictions the alleged victim is permitted to opt out of media- jurisdictions the alleged victim safety mechanisms are built tion (if the victim opts to mediate, into the mediation process Torrez, Cheryl Coleman and Tina Burleson, Muhlhauser, rol/news/news_china_gender_justice.shtml. For a chart detailing the domestic violence mediation rules of the fifty U.S. states, see For a chart detailing the domestic violence mediation rules of the fifty U.S. states, A protect and empower victims). program when domestic violence allegations arise. program when domestic violence Potential and Challenges of Transnational Litigation for Feminists Concerned about Potential and Challenges of Transnational Litigation for Feminists Concerned Domestic Violence Here and Abroad International Children: Conflicts of Laws, Federal Statutes, and Judicial Child Interpretation of the Hague Convention on the Civil Aspects of International Abduction tal kidnapping disputes involving domestic violence allegations. tal kidnapping disputes involving of the Tunnel or Is a Train on the Track? have a very long way to go. The international community contin- way to go. The international have a very long implement and all states to adopt, reform, ues to encourage empower victims of practices that protect and enforce laws and Meanwhile, and victims of parental kidnapping. domestic violence international can be employed to mediate numerous mechanisms of domestic disputes involving allegations parental kidnapping effectively as possible. Properly violence as safely, ethically and holds promising potential as a conducted, elective mediation victims of domestic violence mechanism to protect and empower and victims of parental kidnapping. refer disputes involving domestic Some jurisdictions’ family courts mediation, as they would any ordi- violence allegations for routine nary case. 86 non-violent co- explore ways to facilitate safe, advantageous to of custody or both parents retain legal rights parenting where access. INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 38 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 50 Side B 03/06/2009 09:29:42 03/06/2009 B 50 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 51 Side A 03/06/2009 09:29:42 . 39 LA , 23 F 149 Gerencser posits that: 148 150 (2008), http://www.abanet.org/domviol/docs/ Leigh Goodmark, Second Wave Policies in a Third RESENT Family Mediation: Screening for Domestic Abuse P . § which states that “[u]pon motion or 44.102(2)(c) (2008), see also IS TAT . S DV LA . 43, 55 (1995). HERE appropriate in a case involving domestic violence and appropriate in a case involving Alternative Dispute Resolution and the Potential for Gender Bias, EV W ’ J. 21, 24 (2000); discussed how such positions are at odds with the idea of discussed how such positions are individual women who autonomy and empowerment for I’m working on a piece might want to engage in mediation. policies like blanket now that discusses why mandatory with some of the origi- bans on mediation are inconsistent movement. nal goals of the battered women’s never can never be mediated. Domestic violence or abuse itself abuse is criminal, with Abusers must know that domestic process. Once abuse is no potential for conciliatory Some of us who strongly identify as advocates for battered strongly identify as advocates for Some of us who to media- our strong opposition women are reconsidering was of mine [stated] that mediation tion . . . an old article Domestic violence advocates’ attitudes toward mediating in a advocates’ attitudes toward Domestic violence . U. L. R M K ATTERS 148. See, e.g., F 150. Alison E. Gerencser, 149. of E-mail from Leigh Goodmark, Director, Family Law Clinic, University T UDGES J S Mediation_1_2008.pdf. Wave World: Dominance v. Anti-Essentialist Feminism, Autonomy, and Mandatory on file Policies in Domestic Violence Cases (Aug. 13, 2008) (unpublished manuscript, with the author). request of a party, a court shall not refer any case to mediation if it finds there has request of a party, a court shall not refer would compromise the mediation process.” been a history of domestic violence that jurisdiction, of underlying bases or Some examples, not from any particular bans include: one party raises domestic circumstances that may trigger mediation has violence allegations against the other party; a domestic violence protective order party been issued protecting one party (and/or the child) from the other party; one has raises child abuse or neglect allegations against the other party; one parent that kidnapped or threatened to kidnap the parties’ child(ren); the screener believes is mediation will fail to serve the child’s interests; or, the screener believes that there no reasonable possibility that mediation will promote the development of an effective parenting plan. For Baltimore School of Law, to the author (Aug. 11, 2008) (on file with author). Leigh Goodmark’s prior position on domestic violence-related mediation bans, see Goodmark, domestic violence context are by no means uniform, and some context are by no means domestic violence Leigh Goodmark, their positions over time. experts have adjusted of Baltimore Family Law Clinic at the University Director of the remarked that: School of Law, M Where pre-screening reveals domestic violence allegations, Alison Where pre-screening reveals domestic should be permitted to opt out Gerencser asserts that the parties of otherwise mandatory mediation. 2008] may trig- allegations (or parental kidnapping) domestic violence PARENTAL DISPUTES KIDNAPPING bar to mediation. ger an automatic 87 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 39 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 51 Side A 03/06/2009 09:29:42 03/06/2009 A 51 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 51 Side B 03/06/2009 09:29:42 M K C Y , 46 151 153 their chil- even if he has However, Drew 152 want ; and Beyond Politics and Positions: A the best solution; the same; the perpetrators of domestic is not work in all situations and certainly not work in all situations and certainly is not always are better off going to court ; does not are sometimes 154 . 437 (2008) (emphasis added). EV at 47. . R Id. Id. T dren to have a relationship with their fathers, dren to have a relationship with Women Some female victims of domestic violence Some female victims of domestic Shared parenting violence. in all cases involving domestic violence; All domestic violence Some cases Mediation I never say that any process is absolutely prohibited in I never say that any process is however, be clear that domestic violence cases. We must, in mediation . . . .there can be huge risks in engaging It use mediation, but it does does not mean that we never with the client to require some sophisticated discussions and to make a realistic determine her goals of mediation . The client empowerment assessment of the process . . . obligation to give appropri- model does not relieve us of our have unrealistic expecta- ate guidance to a client who may resolution process.” tions of the alternative [dispute] detected, participants must have a method for exempting a for exempting have a method participants must detected, the parties process. However, if case from the mediation party con- on equal terms and neither can reach agreement such as mediation, including matters trols the other, family and support, may be appropriate child custody, visitation abuse has occurred in a relationship. even though some been violent . C 152. of Interview with Margaret Drew, Associate Professor of Law, University 153. 151. 154. Peter Salem & Billie Lee Dunford-Jackson, AM F encourages attorney advocates to thoroughly explore with victim advocates to thoroughly encourages attorney of engaging in family mediation clients the potential consequences with the batterer: Cincinnati College of Law, Ohio (Aug. 11, 2008). is the director of her Drew university’s Domestic Violence and CPO Clinic. Call for Collaboration Between Family Court and Domestic Violence Professionals Salem and Dunford-Jackson observe that: Peter Salem and Billie Lee Dunford-Jackson summarized their Peter Salem and Billie Lee Dunford-Jackson violence context as follows: beliefs about mediating in a domestic 88 INTER-AMERICAN LAW REVIEW [Vol. 40:1 in the domes- deciding whether or not to mediate When it comes to that, “the decision Margaret Drew asserts tic violence context, in all circumstances.” must be the client’s \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 40 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 51 Side B 03/06/2009 09:29:42 03/06/2009 B 51 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 52 Side A 03/06/2009 09:29:42 , see T. ONALD to ban Whether not & D 156 RONSON cases,” but reunite 452-53 (2d ed. 1991)); H. A some OBERT UTSHELL N Director Denise Carter clari- 155 158 Family Mediation: An Alternative to Litigation cases of international parental child cases of international parental note 12, at 54 (2006) (emphasis added). all ESPONSIBILITY IN A R note 150, at 53 (citing R supra supra report, 157 ROFESSIONAL J. 49, 51 (1994) (stating that some jurisdictions, but not Florida, require , P AR EUNITE Id. . B Some insist that mediation and shared parenting are cure- and shared that mediation Some insist involv- parental conflict, including those alls for almost any matters others maintain that in such ing domestic violence; access to process and restricted parental an adversarial only answer . . . .children are the this line of work, there In and . . . in the end, the presentation are simply no absolutes be incon- and unassailable “truths” may defense of absolute realities. sistent with people’s Two of the most established international parental kidnap- Two of the most established international The reunite mediation scheme rigorously pre-screens each The reunite mediation scheme LA Alison Gerencser & Megan Kelly, ECKSTEIN M K 158. Telephone Interview with Denise Carter, Dir., reunite (Apr. 7, 2008). 157. R 155. 156. Gerencser, 68 F W mediation in cases involving domestic violence allegations. Alison involving domestic violence mediation in cases experienced family lawyers and Gerencser observed that “[s]ome has an ethical duty to inform a mediators conclude that a lawyer the option of mediation, and that domestic relations client about of malpractice.” failing to do so could result in findings ping mediation programs, located in the United Kingdom and Ger- ping mediation programs, located already successfully mediating many, report that they are violence allegations. The United disputes involving domestic the reunite International Child Kingdom’s mediation scheme, firmly committed to the principle of Abduction Centre (reunite), is true to say that mediation would autonomy: “Whilst it would be in every case, and that mediation not be appropriate, or suitable, it is attempted, it is a facility that cannot resolve all cases where should be offered in a domestic violence victim is a parental kidnapper or a left-behind a domestic violence victim is a to be presented with all available parent, he or she has the right to mediate. remedies, including the option will decline to mediate a dispute where it determines that the will decline to mediate a dispute where it determines that to abducting-parent has kidnapped the child as a ruse to migrate fies, “[t]here’s a place for mediation in abduction.” attorneys to advise their clients concerning mediation). also international parental kidnapping case by interviewing both par- international parental kidnapping both ents prior to proceeding with mediation, even in cases where parents have agreed to mediate. 2008] PARENTAL DISPUTES KIDNAPPING 89 may even have an ethical obligation System actors \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 41 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 52 Side A 03/06/2009 09:29:42 03/06/2009 A 52 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 52 Side B 03/06/2009 09:29:42 M K C Y 162 . at 48. Id at 53. Seventy-five disputes involving Id. at 17. “Some were hindered domestic at 17. “In a small number of Id. Id. According to Carter, reunite According to Carter, 159 Germany’s international parental 161 note 12. This report states that “allegations of note 12. This report states that “allegations supra parental kidnapping context can differ pro- parental kidnapping context impact the parties’ participation, the participants reported that report, at 48. Ninety-two percent of participants felt “safe on arrival” and did Id. REUNITE . Id . in . Interestingly, Carter acknowledged that Id Id See B. Context Factors Unique to the International 160 international Considerations surrounding domestic violence allegations in Considerations surrounding domestic When screening reveals domestic violence allegations, reunite reveals domestic violence allegations, When screening to be the parents’ choice. We will look at safety elements [but] choice. We will look at safety to be the parents’ 162.violence BAFM’s viewpoint on mediating disputes involving domestic 161. 160. 159. allegations was expressed during a U.S.-German mediation training in held in Berlin allegations was expressed during a U.S.-German mediation training in held in I was in attendance. See BAFM’s website for more info: http://www.bafm- in 2006 – mediation.de/international/english/mediation-in-international-conflicts-involving- parents-and-children-project-description/. percent of the participants responded that domestic violence did not hinder the percent of the participants responded that domestic violence did not hinder that mediation process, and, in the minority of cases where participants indicated domestic violence domestic violence, the United Kingdom does deny victim parents the option to elect to domestic violence, the United Kingdom mediate. in the first hour but in all cases this was resolved.” cases one parent was nervous about meeting the other parent (due to domestic able to violence) but once mediation commenced the parent felt safe and therefore was speak freely and unhindered regarding the best interests of the child.” does, however, mediate cases involving domestic violence: “[i]t has cases involving domestic does, however, mediate domestic violence [did] not preclude entering the mediation process and [did] not domestic violence [did] not preclude entering the mediation process and [did] affect the [parties’] ability to reach a [stipulated agreement].” kidnapping mediation program (BAFM) is also committed to offer- kidnapping mediation program domestic violence allegations. ing mediation in cases involving reunite’s safeguards made them feel safe, and the mediation was ultimately not reunite’s safeguards made them feel safe, and the mediation was ultimately compromised. foundly from those present in a domestic dispute. Every compel- foundly from those present in kidnapping cases involving ling reason not to mediate parental the domestic context is amplified domestic violence allegations in are the rationales for promot- so too in the international context – Duncan, Deputy Secretary Gen- ing elective mediation. William “in the waiting area” and when “leaving the premises.” the employs safeguards during mediation to protect the parties and during mediation to protect employs safeguards results of a reunite of coercion. Significantly, the reduce the risk that the participants felt safe post-mediation study indicate and believed that the out- throughout the course of the mediation come was uncompromised. it is up to them to make a decision about whether to mediate or to make a decision about whether it is up to them not.” 90 express unwill- where one or both parents the United Kingdom; or where child to mediation with an open mind; ingness to come have been raised. abuse allegations INTER-AMERICAN LAW REVIEWgot [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 42 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 52 Side B 03/06/2009 09:29:42 03/06/2009 B 52 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 53 Side A 03/06/2009 09:29:42 164 abduction by the i.e. Despite these concerns, Despite these note 10, at 123. 163 supra , DLESON note 22, at art. 13. note 12, at 3. & E supra defense set forth in Article 13 is typically supra HETTY S 165 report, grave risk This consideration is particularly salient where the terms REUNITE Id. See generally 166 child’s primary carer) there are strong incentives for the carer) there are strong incentives child’s primary parent agreed outcome. For a left behind parents to find an of the child, there is the who does not want primary care regime. For the tak- prospect of a secure agreed visitation that what originally was ing parent there is the possibility be re-characterised as an a unilateral and unwise act may there is the prospect agreed relocation. Most importantly, avoiding continuing con- of limiting damage to the child by child may become a shut- flict and a situation in which the concerned. tlecock between the two countries [T]he judicial or administrative authority of the requested [T]he judicial or administrative return of the child if the State is not bound to order the person, institution or other body which opposes its return establishes that . . . (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situa- tion . . . . [I]n the now typical abduction case ( [I]n the now typical The International parental kidnapping disputes involving domes- International parental kidnapping M K 166. 164. 163. 165. Hague Convention, Duncan writes that: Duncan writes invoked on behalf of battered mothers who abduct their chil- invoked on behalf of battered mothers who abduct their dren. tic violence allegations might, at first glance, seem an even less tic violence allegations might, likely candidate for family mediation. in For example, mediating international parental kidnap- lieu of litigating a Hague-eligible domestic violence victims and ping case could conceivably deprive safeguards. The framers of their children of the treaty’s built-in the Civil Aspects of International the 1980 Hague Convention on for its potential impact on vic- Child Abduction shared a concern 13 of the Hague Treaty broadly tims of domestic violence. Article addresses domestic violence: 2008] Law , Conference on Private International eral at the Hague PARENTAL DISPUTES KIDNAPPING is not at first parental child abduction stated that: “[i]nternational level of conflict is subject for mediation . . . . The glance an obvious and the differences can fuel misunderstanding, high, cultural 91 two different lan- two legal systems, and possibly involvement of factors.” guages, are complicating \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 43 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 53 Side A 03/06/2009 09:29:42 03/06/2009 A 53 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 53 Side B 03/06/2009 09:29:42 M K C Y On the other 167 those custody rights (or discrimination sometimes require the abducting parent to de facto not exercising the date this data was compiled). Of those defense would not. defense would respondent’s actions). Custody rights are respondent’s actions). Custody rights after note 22. Under Article 13 of the Convention, a note 22. Under Article 13 of the Convention, supra but for Even as between two states party, a sig- Even as between 168 grave risk Procedural disparities between states’ legal systems Procedural disparities 169 Hague Convention, case is a well-known example of such discriminatory conduct. Sylvester v. See Hague return proceedings are strictly jurisdictional, not custodial, in nature. 42 Hague return proceedings are strictly jurisdictional, not custodial, in nature. 168. (the U.S. State Department, Office of According to the U.S. Central Authority 169. Hague Convention, the applicant (left-behind) In order to be eligible under the 167. hand, the Hague treaty is not always available or effective in treaty is not always available hand, the Hague the approximately of January 2009, only 80 of every dispute. As the world had rati- sovereign states in 193 generally-recognized binding as and the treaty is not automatically fied the treaty, party. between states would have exercised them prevents enforcement of valid Hague return orders in favor of left-behind fathers. The prevents enforcement of valid Hague return orders in favor of left-behind fathers. return. January 9, 2008, the U.S. was only bound to Children’s Issues, Abduction Unit), as of other contracting states (the treaty may have approximately sixty-eight of the eighty [denunciation], as between the USA and the entered into force, or ceased to be binding foreign country involved in a dispute, sixty-eight states, the U.S. Central Authority rates many as non-compliant with sixty-eight states, the U.S. Central Authority Convention Compliance Reports see U.S. treaty obligations. For annual Hague Abduction, http://travel.state.gov/family/ Department of State, International Child System actors can verify current treaty abduction/resources/resources_4308.html. the Hague Conference on Private status as between any two states by contacting HCCH, http://www.hcch.net/upload/ International Law (HCCH) or visiting abductoverview_e.pdf. the laws of the child’s country of habitual parent must possess rights of custody under been residence. The petitioner must also have differentiated from access rights. Article 5 of the Hague Convention states that differentiated from access rights. Article “‘[r]ights to the care of the person of the child of custody’ shall include rights relating the child’s place of residence; ‘rights of and, in particular, the right to determine child for a limited period of time to a place access’ shall include the right to take a be other than the child’s habitual residence.” Hague ‘access’ proceedings must litigated in state family courts. 42 U.S.C. §State family court judges 11603(a) (1988). of frequently have difficulty refraining from improperly applying the best interests the child custodial standard to Hague return proceedings. U.S.C. § settle 11601(b)(4) (1988). The Hague Convention is not designed to forum- international custody disputes, but rather to discourage international the shopping. According to Article 19, a Hague return case is intended to determine in the child’s country of habitual residence and ensure that the custody case is heard not family court with proper jurisdiction over the child. A Hague return order does necessarily restore the child to the left-behind parent. Rather, a return order restores to the the child to his or her country of habitual residence (the status quo prior move- abduction) where the local family court addresses custody and entertains any away requests from the taking parent. In practice, return order under the Hague abduction treaty directs that the child be restored to return order under the Hague abduction but does his or her country of habitual residence, nificant number of elements must be met in order for the treaty to of elements must be met in order nificant number be invoked. Austria, 37 Eur. Ct. H.R. 17 (2003). Sylvester 92 to a state that agreement could expose the child of a mediated the likely Hague child-protection regime, but lacks an effective the decision based on INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 44 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 53 Side B 03/06/2009 09:29:42 03/06/2009 B 53 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 54 Side A 03/06/2009 09:29:42 law Dif- 170 2006 Report on determinations made factual that the foreign state that the foreign , http://travel.state.gov/family/ assume exico City) stated that Mexican family noz, (a crimes-against-children expert at exico’s federal civil code, which instructs judges to noz, Special Consular Services Assistant, U.S. Embassy in Mexico 171 Misconceptions about states’ abilities to respond effec- Misconceptions about states’ 172 note 22. For example, Fernando Mu ˜ In some cases, by the time they rule on a grave risk defense, by the time they rule on a grave In some cases, noz cites Article 283 of M´ M K 171. common law states implement the treaty For example, civil law and 172. Telephone Interview with Stephen Cullen, Principal, Miles & Stockbridge 170. court may only consider issues of For example, whereas a U.S. appeals ferences between states’ domestic family law systems result in states’ domestic family law ferences between or obstacles to in the treaty’s application inconsistencies compliance. by the lower court. The U.S. reported of Mexico: “we continue to see [Hague] by the lower court. The U.S. reported cases and not strictly as Convention (i.e. Convention cases mishandled as custody Department of State, habitual residence) determinations.” U.S. abduction/hague_issues/hague_issues_2952.html (last visited Nov. 4, 2008). states’ courts. Also, in contested child- differently, as do federal and non-federal judges almost invariably award physical custody cases, some states’ family court other states’ family codes tend toward a custody to the child’s mother, whereas serves the child’s best interest (absent rebuttable presumption that joint custody preserve the status quo. Differences in evidence to the contrary) or, in the alternative, proceedings can prove critical because child the participation of children in Hague case. Article 13(b) provides: “The judicial or testimony may be dispositive in a Hague to order the return of the child if it finds administrative authority may also refuse and has attained an age and degree of that the child objects to being returned account of its views.” Hague Convention, maturity at which it is appropriate to take involved lacks domestic violence or child-protection remedies and violence or child-protection involved lacks domestic Cullen observed Hague litigator Stephen resources. Experienced think that “[o]nly America can deal that many U.S. Hague judges country is equipped. And that’s with domestic violence. No other flawed.” tively to domestic violence lead to improper Hague return denials tively to domestic violence lead Compliance with the Hague Abduction Convention Compliance with the Hague Abduction the U.S. State Department’s Embassy in M´ courts place relatively heavy emphasis on young children’s testimony (child testimony is formally accepted from age seven, but in practice much younger children testify). Mu ˜ Hague judges are well-informed about the legal protections avail- well-informed about the legal Hague judges are habitual residence. and children in the state of able to women judges mistakenly However, many consider the child’s testimony in child-custody determinations. Telephone Interview with Fernando Mu ˜ City, Mexico (Dec. 2, 2008). German family courts take child testimony at an even City, Mexico (Dec. 2, 2008). German family courts take child testimony at an child more tender age, and assign it substantial weight. U.S. courts tend to exclude testimony altogether or filter the child’s testimony through a court-appointed expert, tend and assign young children’s testimony very minimal weight (however, the courts to accept testimony from children older than age ten or eleven). Thus, the affirmative of defense could turn upon a given court’s assessment of the child witness’ “degree maturity.” (Oct. P.C., & Jennifer Zawid, Assistant Professor of Law, Univ. of Miami Sch. of Law 1, 2008). supra when considering a respondent’s appeal from a trial court’swhen considering a respondent’s appeal Hague return order, the to reconsider Mexican appellate courts have the ability 2008] frustrations and misunderstandings. account for additional PARENTAL DISPUTES KIDNAPPING 93 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 45 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 54 Side A 03/06/2009 09:29:42 03/06/2009 A 54 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 54 Side B 03/06/2009 09:29:42 M K C Y note 71. Given these inconsisten- 174 supra Silberman, Most states’ Hague judges and litigators Most states’ Hague 173 See generally Mediators must never assume that both states Mediators must never assume 175 Domestic characteristics of the two states involved in a partic- Domestic characteristics of the addressed domestic vio- In states that have not adequately 174. of A few states party to the Hague Convention have designated a finite group 175. for Some states offer a wide array of domestic violence remedies and resources 173. its first Hague-return to a left-behind For example, in 2006, Mexico ordered judges and litigators to adjudicate all incoming Hague cases, and require that those judges and litigators to adjudicate all incoming Hague cases, and require that is an judges and attorneys complete extensive, specialized Hague training (Germany to example of this model). This practice would prove considerably more difficult with implement in geographically vast states (like the U.S.), or in states party federalism systems. civil both victim-parents and their children. Such resources might include criminal or law liability, criminal protective orders, domestic restraining orders, a family presumption that favors the victim-parent in child custody proceedings, provisions requiring that a batterer’s visitation be conducted by a professional visitation monitor, confidential address programs, safety plans, batterer treatment, domestic violence shelters with free victim counseling and legal services, and domestic- violence-based immigration remedies and public benefits. American Bar Association’s abuse Commission on Domestic Violence, http://www.abanet.org/domviol/. Where the the or neglect is severe, occurs in the child’s presence, or is directed at the child, courts in some states may even lawfully terminate the batterer’s parental rights. cies in treaty interpretation and judicial training, mediating a and judicial training, cies in treaty interpretation a less favorable out- case will not necessarily yield Hague-eligible or the child. violence victim respondent come for the domestic kidnapping dispute may present ular international parental present in domestic cases. For unique concerns not typically by incongruent legal example, the states may be characterized international parental kidnap- and diplomatic remedies to redress laws;ping; incompatible domestic family cultural irreconcilable domestic-violence and child-pro- and gender norms; or disparate tection remedies and resources. as bona fide concerns warranting lence, child abuse, or neglect offer some victim-parents the state intervention, mediation could protection than they could obtain opportunity to negotiate better by litigating. are trained in an ad hoc fashion, if at all, through sporadic bi- an ad hoc fashion, if at all, through are trained in or bar association judicial college lectures national conferences, mandatory in most events. Hague training is not legal education the Hague Convention. states party to involved in a dispute will respond similarly to domestic violence, involved in a dispute will respond U.S. father. Like in Mexico, the U.S. family law system usually awards child-custody U.S. father. Like in Mexico, the U.S. family interference with custody, whereas less to mothers. Every U.S. state has criminalized interference with visitation rights. than half of the states have criminalized are effectively denied legal redress to Consequently, many U.S. left-behind fathers parental abduction. 94 is mani- of Article 13(b). Gender-bias based upon misapplication prevalent in some party, although it is more fest in all states states than in others. INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 46 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 54 Side B 03/06/2009 09:29:42 03/06/2009 B 54 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 55 Side A 03/06/2009 09:29:42 It is critical 176 ]. Conclusions and Recommendations Adopted by http://www.hcch.net/upload/wop/genaff_concl08e.pdf 177 And, Emory Law School, funded by a grant And, Emory Law School, funded 178 available at , Conclusions and Recommendations The Council invited the Permanent Bureau to continue to The Council invited the Permanent global access to informa- explore mechanisms to improve including at the litigation tion on the content of foreign law, is invited to report and, if stage. The Permanent Bureau as to future action to possible, to make a recommendation the Council in 2009. The Hague Council on General Affairs and Policy has The Hague Council on General M K 178. Telephone Interview with Denise Carter, Dir., reunite (Apr. 7, 2008). 176. as a domestic violence Staff Attorney In my professional experience serving 177. Council on General Affairs and Policy of the Hague Conference on Private acknowledged the need to develop a central repository of foreign acknowledged the need to develop actors involved in resolving laws to aid judges and other system disputes: international parental kidnapping that system actors involved in international parental kidnapping involved in international parental that system actors violence or child cases involving domestic disputes, particularly appropriate and involve experts whenever abuse allegations, and cultural with the laws, resources familiarize themselves norms of both states. [hereinafter from the Ford Foundation, conducted and published a broad study from the Ford Foundation, conducted the Council with Legal Aid, abuse often occurs in the privacy of a home without independent with Legal Aid, abuse often occurs in or witnesses present, rendering it difficult to procure corroborating evidence testimony. Fear or socio-cultural norms deter the victim from reporting or seeking that medical attention and counseling. Undocumented immigrant victims may fear his or reporting will result in deportation, permanently separating the victim from her children and relegating the children to the care of the batterer. Linguistic barriers prevent some migrant victims from communicating with authorities. Financial dependency limits some victims’ ability to support themselves and their children to independent of the batterer. Some states’ authorities are not trained to respond domestic violence, or are reluctant to intervene into what they deem to be private, visible domestic matters. And batterers can learn to harm victims without leaving terms, evidence. With the guidance of an attorney advisor, parents could negotiate conditions, and resources to protect and empower themselves and their children. International Law, April 1-3, 2008, Denise Carter states that reunite has already collected applicable Denise Carter states that reunite post that data on its web site for laws for forty states and will soon use by practitioners. 2008] criminal and civil neglect. Many states still lack child abuse, or PARENTAL DISPUTES KIDNAPPING battered women’s and child protection laws, domestic violence domestic violence benefits, counseling, and other shelters, public be exceedingly dif- Domestic violence can remedies and resources. 95 have well-devel- or to prove in states that do not ficult to detect and child protection regimes. oped domestic violence \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 47 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 55 Side A 03/06/2009 09:29:42 03/06/2009 A 55 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 55 Side B 03/06/2009 09:29:42 M K C Y Many 182 attempted murder 181 184 L.J. 361, 390 n.161 (1986). S ’ ARY viable mechanism to recover viable mechanism Snatch-back scenarios have . M 183 T only , 18 S The United Nations (UN) Special The United Nations 180 Foreign embassies and Central Authori- Foreign embassies 179 Court-Sponsored Custody Mediation to Prevent Parental Sue T. Bench, See Where the kidnapper’s destination state offers no legal or dip- destination state offers Where the kidnapper’s 179. of Reform Through Internal Initiatives, Islamic Family Law: Possibilities 180.http://www.travel.state.gov/travel/cis_pa_tw_cis/ U.S. Department of State, 181. on Women and Gender Equality, http:// United Nations Inter-Agency Network 182. Rowan, Senior Trial Attorney, U.S. Dep’t of Telephone Interview with True 183. “Snatch-back” is a term that refers to a self-help remedy - the left-behind 184. states are unwilling or unable to negotiate a child’s return states are unwilling or unable Memoranda of understanding that through diplomatic channels. have had somewhat limited effect. facilitate access are scarce and powerless, desperate or disen- For left-behind parents who feel the temptation to orchestrate a franchised from the legal system, snatch-back can be overpowering. the child or facilitate parent-child access. Most states do not recog- the child or facilitate parent-child bona fide problem; they have not nize parental kidnapping as a andcriminalized parental kidnapping their own will not extradite charges abroad. nationals to face parental kidnapping the potential to endanger the child. Mediation may prevent a des- the potential to endanger the child. from taking unilateral action that perate, disenfranchised parent risk of grave harm. places the child and others at Rapporteur on violence against women also produces useful coun- against women also produces Rapporteur on violence of women and girls, on the rights and status try-specific reports to protect and empower victims. and state actions ties can be useful information sources. The U.S. Department of information sources. The ties can be useful publish non-governmental organizations State and numerous reports. country condition lomatic remedies to resolve international parental kidnapping dis- to resolve international parental lomatic remedies could prove the putes, mediation Kidnapping: A Disarmament Proposal http://www.law.emory.edu/ifl/index2.html (last visited Oct. 27, 2008). http://www.law.emory.edu/ifl/index2.html cis_1765.html (last visited Oct. 27, 2008). www.un.org/womenwatch/ianwge 27, 2008). (last visited Oct. Justice, Office of Int’l Affairs (date unavailable). constitutions explicitly Some states’ prohibit extradition of nationals. others parent travels abroad to surreptitiously or forcibly re-abduct the child, or hires to do so. Many kidnapping- parents are unaware that a lawful act in one jurisdiction could constitute a criminal offense in another; that criminal penalties could be severe; that numerous states will extradite their own nationals to face criminal charges abroad; or even that their own state is party to international treaties on parental abduction. In 2006, for example, one desperate U.S. left-behind mother hired Russian men to snatch back her child from the child’s abductor/father in Egypt. In the process of executing the plot, the men poisoned the father and were ultimately apprehended. The mother now has custody of her child, but she is the subject of an extradition request from Egypt to the United States, among the charges (Identifying case details and source omitted to protect the victims and honor the (Identifying case details and source omitted to protect the victims and honor involved agencies’ privacy policies.) 96 Law. on Islamic Family INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 48 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 55 Side B 03/06/2009 09:29:42 03/06/2009 B 55 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 56 Side A 03/06/2009 09:29:42 a domestic vio- and international parental kidnap- civil 185 C. Cultural Considerations U.S. prosecutors rarely bring parental kidnapping charges, U.S. prosecutors rarely bring Socio-cultural norms concerning domestic violence, child cus- Socio-cultural norms concerning When a state elects to prosecute a parent for criminal custo- to prosecute a parent for When a state elects M K 185. By ratifying the 1980 Hague Convention on the Civil Aspects of International and judges and juries tend to be very reluctant to send a parent to and judges and juries tend to be jail, particularly a battered mother. criminal Nonetheless, once prosecutors are often unwilling law mechanisms are set in motion, the child is recovered. Promoting to drop the charges, even after and expanding the array of lence victim/parental kidnapper from being re-victimized by lence victim/parental kidnapper criminal prosecution. avoiding the need to resort to ping mechanisms available to left-behind parents could reduce the ping mechanisms available to left-behind victims agreeing to mediate simply incidence of domestic violence more than they fear mediating because they fear imprisonment with a batterer. tody, gender, and each party’s status and role in the societies tody, gender, and each party’s influence the outcome of involved in the dispute can profoundly mediation. For example, in the United States, family mediation and tends to exclude participation by the parents’ extended family community. Some cultures emphasize individualism and a small, nuclear definition of family and biological parents’ rights, whereas the other cultures take a far broader view of kinship, conceiving of in individual only in the context of his or her membership or role dial interference or parental kidnapping, mediation could present or parental kidnapping, mediation dial interference to facing victim an alternative a defendant/domestic-violence parental- and incarceration. An incarcerated arrest, conviction and, in long-term be the child’s primary caretaker kidnapper may He or she may only parent that the child knows. abductions, the Incarceration could or primary income source. be the child’s sole with one disruption in the child’s relationship cause a significant at a time when the the child’s financial security parent or impact parental kid- in crisis. Resolving an international child is already violence allegations through napping case involving domestic the child mediation could potentially prevent Child Abduction, states party commit to the principle that criminal remedies should Child Abduction, states party commit to the principle that criminal remedies be explored only after available civil and diplomatic remedies have been carefully this considered, exhausted or where none are available. Some states party incorporate principle into domestic laws. For example, U.S. federal law states that criminal of remedies should “not detract from The Hague Convention on the Civil Aspects Crime International Parental Child Abduction.” International Parental Kidnapping Act, 18 U.S.C. § 1204(d) (2003). 2008] PARENTAL DISPUTES KIDNAPPING 97 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 49 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 56 Side A 03/06/2009 09:29:42 03/06/2009 A 56 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 56 Side B 03/06/2009 09:29:42 , M K C Y OST best P 187 ASHINGTON , W Children in a communal cul- Children in a communal 186 standard is hotly debated. Maureen Dabbagh, standard is hotly debated. Maureen note 96, at 52. Zulus Eagerly Defy Ban on Virginity Test supra , 188 ABBAGH Foreign law can provide surprising advantages to the Foreign law can provide surprising seem unimportant in the searching parent. Facts that important in another United States may be extremely age or sex may not be country. For example, while a child’s it can very well mean significant in a United States court, or the other in another automatic custody in to one parent be a woman’s marital country . . . . Of concern, too, may may forfeit the right to status. A woman who remarries custody. Some states’ laws establish a fixed age at which a child shall What is in a child’s best interests may be culturally defined. What is in a child’s best interests 187. This point underscores the importance of assigning an experienced domestic 188. D 186. Karin Brulliard, Sept. 26, 2008, at A1. violence advocate as attorney-advisor to review any proposed stipulated agreement prior to the parties signing and, particularly, to advise the domestic violence victim- parent. ture are likely to reside with and be raised by many individuals, to reside with and be raised by ture are likely guardians. In a by their biological parents or legal not exclusively to making an individual may be unaccustomed communal culture, those of her child. based upon her needs or independent decisions or designated can be highly structured Important decision-making A woman from leaders or male heads of family. to elders, religious may not be accustomed to or com- an intensely patriarchal culture decisions in contravention of fortable with making childrearing relatives), particularly in his pres- the child’s father (or other male need to be sensitive to subtle ence during mediation. Mediators a domestic violence victim in a cultural dynamics that could place between a culturally inappropri- position that forces her to choose parenting agreement. ate confrontation and a coerced whose own daughter was parentally abducted by the child’s father whose own daughter was parentally points out: to the Middle East at age two, be in the father’s or the mother’s exclusive care. According to Dab- be in the father’s or the mother’s exclusive care. According to of a bagh, “[m]any Muslim countries hold the religious training has child to be the father’s responsibility. [Therefore], a child who Even among Western states, the definition of the so-called Even among Western states, 98 African woman, or community. One South an extended family between rights aptly articulates the tension Nomagugu Ngobese, which is not the rights are individual rights, and culture: “Human INTER-AMERICAN LAW REVIEW live communally.” way for us. We [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 50 19-FEB-09 10:52 interests of the child 25899_ial_40-1 Sheet No. 56 Side B 03/06/2009 09:29:42 03/06/2009 B 56 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 57 Side A 03/06/2009 09:29:42 see also http://www. . 277 (2007); EV The child’s gender may The child’s gender L. R L best interests of the child ’ 189 190 NT I MORY . L. 353 (2005). . 537, 537 (2008). OMP EV , 21 E . R T & C L ’ . C NT AM The Role of the Courts in Preventing International Child “It’s In Their Culture”: Fairness and Cultural Considerations J. I Japanese Family Law – The Lack Thereof!, or , 46 F All states may be equally committed to the belief All states may be equally committed ARDOZO Mediators may need to suspend judgment, acknowl- Mediators may need to suspend 192 International Child Abductions Involving Non-Hague Convention States: 193 Cultural norms can also influence the parties’ under- can also influence the parties’ Cultural norms 191 , 13 C . . Id Id Other states consistently award sole custody to one parent award sole custody Other states consistently An international parental kidnapping mediation regime that An international parental kidnapping M K 192. see For more information on Shari’a Law and non-Hague Convention states 193. Sujata Warrier, 190. 191. to the For example, Japanese family courts typically award sole custody 189. international-divorce.com/d-japan.htm (last visited Jan. 8, 2009). Smita Aiyar, also be determinative of the parents’ custodial rights. “In Saudi of the parents’ custodial also be determinative age seven; in Syria [child] goes to the father at Arabia, a female Recognition of goes to the father at age twelve. . . . a female [child] mothers the right law has thus afforded American this particular daughters abroad.” to custody of young that their domestic family laws and practices represent the child’s that their domestic family laws Western best interests. Assuming that a edge and table personal biases, resist the urge to dictate values in edge and table personal biases, their mediation strategies to the course of mediation, and adjust account for rich cultural context. standing about children’s rights and legal status (e.g., the child’s children’s rights and legal status standing about the child as a property interest of interests are paramount versus the father). mother with no visitation rights (or support obligations) for the father. Information Law about Japanese family law derived from the web site of the International Family and Office of Jeremy D. Morely. Morely is an international parental abduction expert a member of NCMEC’s International Child Abduction Attorney Network (ICAAN). Jeremy C. Morely, and simultaneously terminate the other parent’s rights and obli- terminate the other parent’s and simultaneously gations. in Domestic Violence Abduction The Need for a Uniform Approach Deborah M. Zawadzki, standard is the starting point for every international family medi- standard is the starting point for likely to alienate at least one ation is an ethnocentric approach authorities and, in a co-media- parent, his or her counsel, foreign tion model, the foreign co-mediator. is likely to quickly inspire con- fails to address cultural relativity states where mediation could prove tempt and distrust from those altogether lacking legal or diplomatic paren- states most critical – actors should avoid essentializ- tal kidnapping remedies. System and pursue a more nuanced ing members of a given culture, of individuals’ cultural understanding of the complex implications identities. 2008] age goes to the father.” reached a certain PARENTAL DISPUTES KIDNAPPING 99 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 51 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 57 Side A 03/06/2009 09:29:42 03/06/2009 A 57 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 57 Side B 03/06/2009 09:29:42 M K C Y 195 On April 3, 2008 the On April 3, 2008 note 177. 194 should be prepared, to be A committee of experts convened in Wash- A committee of experts convened 196 See Conclusions and Recommendations, supra submitted for consideration at the next meeting of the Spe- submitted for consideration at the practical operation of that cial Commission to review the held in 2011. Convention, which is likely to be The Council invited the Permanent Bureau to continue to The Council invited the Permanent of, developments in follow, and keep Members informed in family matters. The respect of cross-border mediation begin work on a Guide to Permanent Bureau is asked to a first step, a Guide to Good Practice on the subject. As in the context of the Good Practice on the use of mediation 1980 on the Civil Aspects of Hague Convention of 25 October International Child Abduction D. Best Practices Mediating international parental kidnapping disputes involv- parental kidnapping Mediating international 196. Telephone Interview with Eric Fish, Legislative Counsel, Unif. Law Comm’n. 194.development activity underway to promote There is exciting international 195. (May 13, 2008). Council on General Affairs and Policy at The Hague Conference Affairs and Policy at The Council on General and Recom- Law adopted Conclusions on Private International in family matters”: “cross-border mediation mendations regarding ing domestic violence allegations is a dauntingly complex, multi- allegations is a dauntingly ing domestic violence the international Sovereign states and disciplinary undertaking. of developing best just beginning to tackle the task community are these disputes. practices for mediating awareness and best practices in cases involving domestic violence. For example, in awareness and best practices in cases Bar Association’s (ABA) Commission on July 2007, Robin Runge of the American Republic of China (PRC) to discuss the role of Domestic Violence visited The People’s response and explore best practices for cases gender in the law, develop a coordinated ABA involving domestic violence. Among the themes addressed during the in the delegation’s visit to the Supreme People’s Court (SPC) was the use of mediation Vice domestic violence context: “On July 24, Ms. Runge exchanged views with SPC to President Wan Exiang on the role of the bar in working with judges and courts court promote reform, to address gender bias in the courts, and to arrange their proceedings so that victims are kept safe from their batterers and can exercise Gender Perspectives on Marriage and Symposium on legal rights. The July 29–30 Family Cases shared best practices and explored the rationales for rules governing the use of mediation . . . in cases involving domestic violence. The SPC’s expected guidance . . . is aimed at addressing abuses of power or other inappropriate pressure applied by lower courts in the widespread promotion of mediation without protections for domestic violence survivors . . . .” American Bar Association Rule of Law Initiative, http:// Initiative Supports Push for Gender Justice in China, Aug. 20, 2007, www.abanet.org/rol/news/news_china_gender_justice.shtml. According to Uniform Law Commission (ULC) Legislative Coun- According to Uniform Law Commission April Hague Special Commission sel, Eric Fish, in response to the ULC is now looking into U.S. Report, the Washington, D.C.-based mediation practices. 100 INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 52 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 57 Side B 03/06/2009 09:29:42 03/06/2009 B 57 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 58 Side A 03/06/2009 09:29:42 197 way,” right 199 considerable discord persists over which considerable Even experienced mediators who initially Even experienced mediators 198 200 note 46. For example, the German co-mediation model For example, the German 201 See supra Established mediation programs report considerable success Established mediation programs Univ. of Miami 2008 Events, http://www.law.miami.edu/cle/cle_01_01.php?op=1 M K 201. bono I witnessed this firsthand as the previous coordinator of NCMEC’s pro 198. and Typically, both parents are informed that mediation is strictly voluntary 199. Telephone Interview with Denise Carter, Dir., reunite (Apr. 7, 2008). 200. 197. reports to the Steering Group of the The Best Practices Committee posits reunite Director Denise Carter. posits reunite Director Denise balk at the concept of co-mediation may prefer to co-mediate in balk at the concept of co-mediation of international parental kid- light of the complexity and nuance violence allegations. However, napping cases involving domestic about how co-mediation should be mediators do not always agree structured. mediation model is most effective. A global, one-size-fits-all medi- is most effective. A global, one-size-fits-all mediation model resources and reali- unlikely to suit every state’s ation model is to employ may about which mediation model ties. The decision dispute are the two states involved in a particular turn upon how is the “No one mediation model globally situated. international parental kidnapping mediation program from 2005 through 2007. (BAFM) incorporates cultural and gender considerations into the (BAFM) incorporates cultural mediators with cultural and lin- mediation strategy by choosing According to BAFM media- guistic competency whenever possible. Paul: tor and instructor Christoph C. using a co-mediation model to resolve international parental kid- using a co-mediation model to napping disputes. (last visited Aug. 26, 2008). All participants are volunteers. by that unwillingness to mediate will in no way affect subsequent litigation; that event attempting mediation, they do not forgo their right to litigate; that in the parent mediation fails, the judge will not deem that, by mediating, the left-behind that acquiesced to the kidnapping; that the judge will not take into account the fact and mediation was unsuccessfully attempted; that mediation is strictly confidential; court. that nothing said during mediation will be subsequently admissible in avoid Conscientiously timing the mediation process is critical in Hague cases so as to no conflict with the treaty’s prompt adjudication requirements, and to ensure that party abuses mediation as a means to harass, delay, intimidate or coerce the opposing party. International Child Custody Mediation Initiative that formed in early 2008 to launch International Child Custody Mediation mediation initiative as the result of a a national international parental kidnapping Cross-Border Family Mediation with an national mediation conference titled on the Civil Aspects of International Child Emphasis on the 1980 Hague Convention School of Law from February 22-24, 2008. Abduction, held at the University of Miami See 2008] practices for medi- January 2009 to formulate best ington, D.C., in PARENTAL DISPUTES KIDNAPPING disputes. parental kidnapping ating international schemes in certain similarities among mediation Notwithstanding 101 parental kid- engaged in mediating international states already napping disputes, \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 53 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 58 Side A 03/06/2009 09:29:42 03/06/2009 A 58 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 58 Side B 03/06/2009 09:29:42 M K C Y . L. 42, 43 In other AM 203 . J. F M , 22 A 204 Family Mediation in International Child 202 . Id Two mediators of different sexes are required in order to in order sexes are required of different Two mediators both par- of co-mediation and to give take full advantage during the to feel properly understood ents the opportunity of the prerequisite for the composition mediation. A further to the high is differing professions. Owing mediation team mediator in such proceedings, one level of conflict potential psycho-social or educational background, should have a the same degree of relevant experience. At including a high the legal are closely embedded in time, such proceedings the law is a substantial knowledge of framework so that mediators . Last but not least, the pair of indispensable . . background. If, for should reflect both parents’ cultural part in a mediation pro- instance, an American man takes state of residence), he ceedings in Germany (the child’s cultural individuality is must be sure that his national and a condition which applies to understood and appreciated – This means that both the German woman as well. but must also have mediators not only have to be bilingual, insight into the other culture. Discord persists over whether to strictly enforce the general Discord persists over whether 203. in Telephone Interview with Denise Carter, Dir., reunite (Apr. 7, 2008). Also, 204. 202. Christoph C. Paul & Jamie Walker, (2008). had contrast to BAFM, reunite reports that follow-up interviews with parents who the mediated their international parental kidnapping disputes revealed that than mediators’ gender, profession and nationality were less important to the parents the mediators’ levels of skill and professionalism. circumstances, Carter observed positive results due to the partici- circumstances, Carter observed who was familiar with pation of a same-nationality interpreter customs. applicable cultural norms and preference for face-to-face, joint-session mediation in interna- preference for face-to-face, joint-session particularly in cases involv- tional parental kidnapping disputes, Face-to-face mediation can be ing domestic violence allegations. frightening and intimidating to a victim-parent, and the batterer- parent’s presence could lead to an imbalance in negotiating power or a coerced agreement. To ensure the victim’s safety and reduce the the likelihood of coercion, some mediators elect to depart from for general preference for joint-session mediation, and opt instead Custody Conflicts: The Role of the Consulting Attorneys Carter points out that, in certain circumstances, utilizing same- Carter points out that, in certain the mediation, and intimi- nationality mediators can undermine violence victim-parent, on account date or endanger the domestic arising out of the mediator’s of cultural or interpersonal conflicts community or family. close ties to the victim-parent’s 102 INTER-AMERICAN LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 54 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 58 Side B 03/06/2009 09:29:42 03/06/2009 B 58 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 59 Side A 03/06/2009 09:29:42 207 205 EDIATION IN , M The attorney 206 IOLENCE V have an attorney-advisor OMESTIC D (2008), http://www.abanet.org/domviol/ must NON ’ RESENT OMM P IS C N ’ SS DV note 71. A HERE AR supra W B ATTERS MERICAN M A Silberman, AW L See See Confidentiality is a particularly poignant issue in cases The mediator’s role is a controversial issue in international role is a controversial issue in The mediator’s disputes involving In international parental kidnapping M K 207. 205. financial Where concerns over physical safety or coercion are present, or where 206. AMILY for the victim-parent should carefully investigate the domestic- for the victim-parent should carefully in any state where the child violence and child-protection regimes the Agreement. The attorneys typi- will reside or visit pursuant to capacity; they are not permitted to cally serve only in an advisory However, some mediation pro- participate in mediation sessions. the grams permit a trained support person to silently accompany sus- victim-parent into the mediation and to assist the victim to pend or terminate the mediation under certain circumstances. docs/Mediation_1_2008.pdf. with ample domestic violence advocacy experience. with ample domestic violence advocacy involving domestic violence or child abuse allegations. Some juris- dictions mandate that mediators and other designated profession- family mediations involving domestic violence allegations. A fam- involving domestic violence family mediations or from a vic- approach mediation as a neutral, ily mediator might position.tim-centric or child-centric victim-centric or child- In a steps to ensure that, mediator takes affirmative centric model, the agreement, the remedies in favor of a stipulated in forgoing legal victim at risk by the child or domestic violence parties do not place safeguards (such as violence and child abuse eliminating domestic Safeguards are built by the Hague Convention). those provided for to the extent that mediators may into the mediation process, even the parents’ wishes or refuse to terminate mediation against acceptable to both parents. include terms that are mutually common practice of using a neu- domestic violence allegations, the of assigning the parties tral mediator heightens the importance The attorney advisor for each independent attorney advisors. agreement before the par- party reviews any resulting stipulated the contract and their implications; ties sign; explains the terms of was voluntary and any consensus ascertains that participation the agreement meets the legal was un-coerced; and ensures that involved so that it may be regis- requirements of each jurisdiction Given these considerations, a tered and enforced in both states. domestic violence victim-parent limitations dictate, international family mediation can sometimes be conducted by limitations dictate, international family mediation can sometimes be conducted teleconference, video-conference or online dispute resolution (ODR). F 2008] parties. or caucus meetings with the individual sessions PARENTAL DISPUTES KIDNAPPING 103 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 55 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 59 Side A 03/06/2009 09:29:42 03/06/2009 A 59 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 59 Side B 03/06/2009 09:29:42 M K 46 C Y ” , In her piece on to commencing 208 prior 210 She advocates for state legislative reform She advocates for state legislative 209 note 150, at 44. supra vigorous domestic violence screening and mediator vigorous domestic violence screening . 523 (2008). EV . . R Id T Legislatures must require screening by participants at Legislatures must require screening every level, and an exemption from mediation when partici- pants find domestic abuse. Legislatures must also require that all participants, especially family mediators, be trained to recognize signs of domestic violence and abuse. Participants must know about domestic abuse, screen each case to identify abuse, and assume that any alleged abuse did actually occur. If mediation is inappropriate, they should offer alternatives to mediation. System actors and mediators must rigorously pre-screen all System actors and mediators . C mandate 210. 209. Gerencser, 208. Frederick, For an exploration of domestic violence screening, see Loretta AM F family mediation, Gerencser recommends that mediation pro- family mediation, Gerencser addition to using the question- grams conduct an interview in minimal or no formal education naire, because many parties have and may be illiterate. mediation, the applicable reporting requirements and any discrep- mediation, the applicable reporting binding each mediator. ancies between the states’ rules and develop effective tools mediation cases for domestic violence, and child abuse indicators (some for detecting domestic violence to directly communicate victims are too afraid or embarrassed mediation programs require allegations). Many contemporary confidential questionnaires that both parties complete detailed domestic violence and other issues prior to mediation to screen for endanger the parties or com- that, if undetected, could potentially and the outcome. promise the mediation process to training: “Questions About Family Court Domestic Violence Screening and Assessment 104 violence, abuse or or indicators of family als report any allegations other jurisdictions authorities, whereas neglect to appropriate INTER-AMERICAN Some jurisdictions to the mediators’ discretion. leave reporting LAW REVIEW addressed in- confidential any communications maintain strictly [Vol. 40:1 mediator to take the other jurisdictions allow the session, whereas based upon the recommendations to the court stand and make in a state domestic violence to authorities mediation. Reporting or relegates violence remedies and resources that lacks domestic place a victim in to the private sphere could domestic violence and disclose to is critical that mediators explore grave danger. It advocates, the parties and their attorney \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 56 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 59 Side B 03/06/2009 09:29:42 03/06/2009 B 59 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 60 Side A 03/06/2009 09:29:42 see also note 202. supra 212 This structure facilitates close monitoring, consistent This structure facilitates close In most circumstances, at the time the parties enter media- In most circumstances, at the Domestic violence screening must begin prior to mediation screening must begin prior Domestic violence 211 M K 212. and Certain challenges to this structure are inherent in the U.S. legal system 211. Telephone Interview with Denise Carter, Dir., reunite (Apr. 7, 2008); governance structure. The U.S. federalist system relegates family law and family governance structure. The U.S. federalist system relegates family law and state mediation to the individual states. Mediator standards vary dramatically from to state. Some U.S. states permit only attorneys to mediate family court settlements while others allow non-lawyers to mediate; some states have a sophisticated mediator and licensing scheme while, in other states, almost anybody may hang a shingle mediate. Some U.S. states mandate minimum continuing education for mediators, the while other states have no such requirement. To ensure that mediators possess fifty appropriate qualifications and expertise, the U.S. would have to train more than mediators, or train mediators extensively in multiple states’ mediation regulations for and procedures, or train more than fifty attorneys to review stipulated agreements conformity with state laws and procedures. results, and enables the finite group of designated mediators to results, and enables the finite expertise, including rigorous achieve substantial subject matter domestic violence and child training to identify and address abuse. tion, the domestic violence allegations have not yet been adjudi- tion, the domestic violence allegations court, so there is no formal finding cated in either civil or criminal domestic violence allegations are of domestic violence. If and when may determine that there is brought before a court, the judge violence was mutual. A court’s insufficient evidence or that the insufficient evidence does not nec- finding of mutual aggression or violence or dispel the need essarily reflect an absence of domestic for system actors to take precautions. Mediators and attorney and continue throughout the process and to its conclusion. A vari- the process and to its and continue throughout the poten- share responsibility for identifying ety of system actors abuse in an of domestic violence or child tial presence central authori- Hague kidnapping case international parental – the dispute, investi- officials involved in resolving ties, diplomatic faith-based and officers, social workers, gating law enforcement with the family, organizations that interact community-based advocates, providers, judges, victim-witness medical services against either bringing criminal charges counselors, prosecutors victims’ attorneys, and mediators. the batterer or the kidnapper, in particular, family mediators All of these system actors and, to recognize and respond effec- should be rigorously cross-trained child abuse. Both BAFM (in Ger- tively to domestic violence and United Kingdom) emphasize the many) and reunite (in the small cadre of highly-trained, importance of maintaining a very kidnapping mediation special- experienced international parental ists. Paul & Walker, 2008] PARENTAL DISPUTES KIDNAPPING 105 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 57 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 60 Side A 03/06/2009 09:29:42 03/06/2009 A 60 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 60 Side B 03/06/2009 09:29:42 M K 214 C Y . 1, 9- EV . L. R M -A The applicable NTER I 213 IAMI International Child Abduction See , 40 U. M Any sovereign state in the world, regardless of whether or Any sovereign state in the world, Practical and Ethical Implications of Mediating International Child 215 Mediators of international parental kidnapping disputes international parental kidnapping Mediators of 214. mediation A potential danger of allowing the parties to stipulate which 215. can Only an international parental kidnapping (IPK) mediation standard 213. may be subject to two competing For example, the mediator (or co-mediators) 29 (2008). to standard will apply is that the family courts of one or both countries may decline recognize or enforce the resulting stipulated agreement because the mediation rules. process or contract fail to comply with local, state, federal or regional mediation states achieve a high degree of uniformity, consistency and predictability. Hague could party to the Hague Convention that have Hague implementing legislation or amend that legislation to promote elective mediation and to incorporate national international mediation best-practices standards. standards may prove fundamentally incompatible, making it diffi- prove fundamentally incompatible, standards may any given case. which standard to apply in cult to determine national mediation standards corresponding to the two countries involved in the national mediation standards corresponding In some cases, regional mediation international parental kidnapping dispute. of Conduct for Mediators, may be implicated. standards, such as the European Code government is involved in the dispute, the Where a state with a federal system of domestic mediator standards, as well. For mediator(s) may be subject to multiple a case involving a child located in example, a California mediator might co-mediate child’s alleged country of habitual residence, Hawaii and a left-behind parent in the a co-mediator located in Mexico’s Federal the state of Michoacan, Mexico, with at least four mediation standards could be District. In this hypothetical example, and Mexico City’s. And, where a implicated: California’s, Hawaii’s, Michoacan’s, lawyers, teachers or healthcare providers), mediator holds a professional license (e.g., federal professional licensing requirements, he or she may also be subject to state or of conduct, or rules of professional mandatory reporting requirements, codes one standard might mandate absolute responsibility. In such circumstances, any confidentiality while the other standard mandates that the mediator report area- suspicions of domestic violence to law enforcement authorities. Substantive specific (e.g., family law or domestic violence) mediation standards and special Online Dispute Resolution standards could further complicate matters. For an in-depth exploration of international parental kidnapping mediation standards, see Jennifer Zawid, Abduction Cases: A New Frontier for Mediators involving domestic violence or child abuse allegations may find violence or child abuse allegations involving domestic codes of pro- to multiple mediation standards, themselves subject and licens- rules of professional responsibility, fessional conduct, reporting requirements. ing and mandatory effective solution would be to Perhaps the most universally the Hague Convention) that com- develop an Optional Protocol (to to resolve international mits to the use of elective mediation sets forth applicable standards for parental kidnapping disputes, and details practices for mediator qualifications and conduct, violence or child abuse allega- mediating cases involving domestic tions. 106 seriously, address domestic violence allegations advisors can take coercion, without and take steps to prevent safety concerns INTER-AMERICANguilt or innocence of the parties. presuming the LAW REVIEW [Vol. 40:1 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 58 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 60 Side B 03/06/2009 09:29:42 03/06/2009 B 60 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 61 Side A 03/06/2009 09:29:42 availa- only address the effective protec- must has ONCLUSION VII. C 216 An effective mediation regime An effective mediation 217 Mediating an international parental kidnapping dispute Mediating an international The innovative, exploratory nature of states’ initial forays exploratory nature of states’ The innovative, M K 216. A state that elects not to adopt the Optional Mediation Protocol could still 217. Director Denise Carter of reunite stresses the importance of tracking families ble mechanism to ensure an abducted child’s safety and well- ble mechanism to ensure an to a state that being, secure the child’s return program’s capacity to detect domestic violence and child abuse, to detect domestic violence program’s capacity prevent coerced of all participants, and ensure the safety agreements. tions, or facilitate appropriate access to both parents. Elective tions, or facilitate appropriate ineffectual remedies by affording mediation can compensate for opportunity to build protective system actors and parents an and craft a safe, appropriate, terms into a stipulated agreement Mediation may provide a domes- cooperative co-parenting regime. international parental kidnap- tic violence victim charged with involving domestic violence allegations is certain to prove precari- involving domestic violence allegations Nonetheless, where the desti- ous, challenging, and controversial. lacks legal or diplomatic nation state involved in a dispute is non-compliant with interna- parental kidnapping remedies, effective domestic violence and tional treaty obligations, or lacks may prove the child protection institutions, mediation into mediating international parental kidnapping disputes, partic- parental kidnapping into mediating international abuse allegations, domestic violence or child ularly cases involving and a high degree of tracking and monitoring, necessitates careful adaptability. Remedies Act, 42 U.S.C. § 11603(2)(A) (1988). However, Hague implementing and legislation on point will not solve the problem of incompatible national standards, it will not necessarily apply in non-Hague cases. In countries with federal systems, model IPK mediation rules could be promulgated (for example, by the U.S. Uniform Law Commission) for state adoption, but this approach fails to address incompatibilities between the involved states’ or countries’ standards. model aspects of its national IPK mediation standard after the Optional Protocol, treating the Protocol as model legislation. following mediation to assess the mediation’s efficacy. Interviewers at reunite inquire they into the parties’ experiences during the mediation procedure; whether subsequently honored the terms of the mediated Agreement; how long the Agreement functioned before requiring modification; and whether the Agreement proved and enforceable in the event of a party’s non-compliance with its terms. Both parents children are interviewed. The reunite mediation model is constantly adjusted according to the results of these surveys. Telephone Interview with Denise Carter, Dir., reunite (Apr. 7, 2008). 2008] be able to adopt the the Hague Convention, would not it is party to PARENTAL DISPUTES KIDNAPPING Optional Protocol. 107 \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 59 19-FEB-09 10:52 C Y 25899_ial_40-1 Sheet No. 61 Side A 03/06/2009 09:29:42 03/06/2009 A 61 Side No. Sheet 25899_ial_40-1 25899_ial_40-1 Sheet No. 61 Side B 03/06/2009 09:29:42 M K C Y 218 parental kidnapping advocacy and victims of parental kidnapping. and Protectionist mediation bans, whether triggered by domestic bans, whether triggered Protectionist mediation Global domestic violence 218.(ICAAN), To join the International Child Abduction Attorney Network have a very long way to go. The international community contin- have a very long way to go. The reform, implement and enforce ues to spur all states to adopt, and empower victims. In the laws and practices that protect meantime, numerous mechanisms can be employed to mediate international parental kidnapping disputes involving allegations of domestic violence as safely, ethically and effectively as possible. Properly conducted, elective mediation holds promising potential vio- as a mechanism to protect and empower victims of domestic lence volunteer mediators or attorneys may contact The National Center for Missing and volunteer mediators or attorneys may contact The National Center for Missing Exploited Children (NCMEC) at (703) 837-6391. violence or parental kidnapping, disempower parents, divest them kidnapping, disempower parents, violence or parental Domestic harmful gender stereotyping. of agency, and perpetuate impact on bans have a disparate discriminatory violence-based disparately impact kidnapping-based bans women, and parental men report experiencing domestic men, because more women than parental kidnappers are violence and the majority of international choice of whether or not to medi- mothers. Denying any parent the and principles that guarantee all ate violates international laws gender equity, equality in the persons dignity, non-discrimination, and responsibilities, access to jus- family, shared parenting rights Treating parental kidnapping as tice and equality before the law. of treating domestic violence a domestic violence remedy, instead to parental kidnapping, does as a rebuttable affirmative defense summarily deprives children of injustice to left-behind parents, and undermines the rule of law. their right to access both parents, indirectly, by promoting Addressing domestic violence allegations excessively protectionist interna- capricious, discriminatory or and practices, detracts from the tional parental kidnapping laws reform inadequate domestic vio- critical need to implement and lence institutions. 108 extradition and to facing criminal prosecution, ping an alternative agreeable solu- option to mediate a mutually incarceration. The INTER-AMERICAN parent from tak- a desperate, disenfranchised tion could prevent LAW REVIEW parent and others that place the child, the ing unilateral actions [Vol. 40:1 harm. at risk of grave \\server05\productn\I\IAL\40-1\IAL104.txt unknown Seq: 60 19-FEB-09 10:52 25899_ial_40-1 Sheet No. 61 Side B 03/06/2009 09:29:42 03/06/2009 B 61 Side No. Sheet 25899_ial_40-1