On May 24, the House Foreign Affairs Committee held a hearing, “International Child Abduction: Broken Laws and Bereaved Lives.”
Sara Edwards, the mother of a child abducted to Turkey, detailed her ordeal, saying, “In January of 2010, after seven years of marriage, [my husband] Muhammed and I separated. We drafted an informal shared-parenting agreement to outline our intentions for raising [our son] Eli. I believed this document was a framework for us to work together as separated parents to achieve the best interests of our son. We acted under the plan, which called for equal custodial time of alternating weeks with Muhammed and I each visiting Eli two days a week during the other parents’ visitation. We made bedtime phone calls every night regardless of which parents’ week it was. I fully believed that Muhammed’s participation meant he was committed to shared-parenting, like I was. Therefore, when Muhammed wanted to go forward with a visit with Eli to see his family in Turkey, I did not object. I thought it would be good for Muhammed to have the support of his family during the separation. Muhammed provided me with the round trip travel itinerary of their tickets and also a signed, notarized statement promising to return with Eli. Muhammed and Eli were supposed to spend only two months in Turkey. But now, 14 months later, Eli has still not come home. Hindsight is 20/20. I now know that my husband felt he could not get what he wanted in the U.S. so he took our son to Turkey. There [he] secured an unlawful custody ruling and divorce, and he did all he could to ensure that my side of the story would never be heard.” Ms. Edwards added, “It is now clear to me that Muhammed never intended to bring Eli home. Muhammed arrived in Turkey on March 6, 2010, and attended a divorce hearing on March 10, 2010. The domestic court of Nevsehir, Turkey granted full custody of our son to Muhammed on March 11, 2010. Muhammed got full custody and divorce in a domestic court in a country where we never resided. According to Turkish law, I should have been physically present for the divorce hearing. Not only was I not present, I was never informed of the case in any way, and I never had contact at all with the attorney…who supposedly represented me. I did not even have hard evidence that a divorce occurred until Muhammed filed the Turkish court’s divorce and custody ruling through his Ohio attorney as evidence in the Ohio custody case. To date, Muhammed continues to ignore the Summit County court order to return Eli to Ohio. The judge signed the order adopting our original Shared Parenting Plan in June of 2010, and Muhammed and I are still legally married in Ohio. My Turkish attorney submitted my Hague petition to the Turkish Central Authority on January 24, 2011. I learned that the Turkish authorities have investigated Muhammed and Eli’s whereabouts and, just this month the Turkish Central Authority has opened a case on my behalf in Kayseri, Turkey domestic court for the return of my son. I await updates daily. I await updates desperately.”
After noting that international child abduction has been, and continues to be, a bipartisan issue in the House of Representatives, Kristin Wells, former counsel to the House Foreign Affairs Committee and a partner at Patton Boggs, said, “The Hague Convention is an imperfect legal instrument, yet it plays a critical role in addressing international child abduction cases and it is the U.S. government’s most reliable tool for seeking the return of children abducted from the United States. Eighty-five countries are now contracting states to the convention and the United States has actionable agreements with many of these countries to ensure prompt return of the child to their country of habitual residence. It is easy to think of the Hague Convention as an international child custody mechanism – however, that perception is not accurate. The convention does not solve matters of custody or visitation. Instead it clarifies which country has the legal jurisdiction to resolve the dispute between the parents. The convention requires the prompt return of the child to that jurisdiction under the theory that returning the abducted child to his or her area of habitual residence is in the best interest of the child. Additionally, the Hague Convention confirms that the court in that jurisdiction of habitual residence is the best equipped judicial body to hear and review evidence relating to a custody or visitation decision. The convention seeks to rebalance the playing field so that the abducting parent does not have an advantage over the left behind parent.”
Ms. Wells added, “Nonetheless several key weaknesses demand further attention…Another critical area of language interpretation regarding the Hague Convention is the provision written to ensure that children are not returned to conditions where they will be harmed. The grave risk of harm exception in Article 13 states that the authority of the requested state ‘is not bound to order the return of the child’ if it is established by the opposing party that ‘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 position.’ This language becomes critical in cases where there are allegations of domestic violence. It is just these cases where the stakes for kids are highest, and the need to get the legal analysis right is most critical. Varying interpretations of this language have split the U.S. federal circuit courts. In many parts of the world, and still sometimes amongst U.S. courts, it is very difficult for victims of domestic violence to effectively use this provision to prevent the return of their child to the alleged abuser or to the immediate area where the child would be in the proximity of that abuser, and possibly at greater risk of harm as a result. There are numerous cases where a history of violence against the mother, even violence in front of the children, has been found insufficient to enact Article 13 to prevent a return of the child to the habitual residence. In more recent years, some U.S. courts have begun to find that harm to the mother puts the child at greater risk of physical or psychological harm. Yet a number of courts have declined a return to the child’s habitual residence under the Hague Convention using this interpretation. This is tricky – for requesting countries will often argue that as the habitual residence, those nations are best situated to address issues of violence through their court system. Yet some American courts have been hesitant to accept that argument if an erroneous judgment would appear to place the child closer to the source of harm and may result in the child being returned to an abusive parent. The U.S. Justice Department could play a more robust role to assist with U.S. federal court interpretation, by doing a thorough review of the ‘grave risk of harm’ provision and by issuing guidelines to the federal courts on what standards and tests should be used interpret this part of the convention. The Office of Violence Against Women could participate in developing that guidance and overseeing the training of judges on this issue, just as they have successfully trained judges on the Violence Against Women Act and thereby improved American jurisprudence to protect victims of domestic violence.”
David Goldman, father of a child abducted to Brazil; Carlos Bermudez, father of a child abducted to Mexico; Michel Elias, father of children abducted to Japan; Joshua Izzard, father of a child abducted to Russia; Colin Bower, father of children abducted to Egypt; Patricia Apy, attorney, Paras, Apy & Reiss, PC; and Jesse Eaves, policy advisor for Children in Crisis, World Vision, also testified.
