Treaty Created to Stop Child Abductions Could Now Be Protecting Abusers - WhoWhatWhy

Treaty Created to Stop Child Abductions Could Now Be Protecting Abusers

Child abduction
The Hague Convention could be used to protect abusers rather than children. Photo credit: mikrofoniusz tranzystorek / Flickr (CC BY-NC 2.0)
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An international treaty initially created in 1980 to protect children from being abducted has now become a mechanism for abusers to manipulate the courts and gain access to their children, according to Joan Meier, a domestic violence expert and attorney for a mother who says she was forced to return her child to her abuser.

The Hague Convention on Civil Aspects of International Child Abduction is a treaty with 101 participating countries designed to deter international abductions, often by a non-custodial parent, and requires that a child wrongfully taken from their country be returned. 

The United Nations 2019 Global Study on Homicide reports that over half of all murdered women are killed by an intimate partner or family member, but when a domestic violence victim escapes with her children — many times in a life or death situation — she’s often labeled a child “abductor” by the courts. Her batterer can use the Hague Convention to force the children back to the abuser’s country, experts on the Hague Convention and domestic violence claim. 

In the report, Learning From the Links Between Domestic Violence and International Child Abduction, researchers from the International Social Service report that they have seen a noticeable shift in patterns of child abductions. In the 1970s, it was often fathers abducting or retaining their children from overseas, but now, 50 years later, it is mothers who most often leave with the children to flee violent relationships and provide a safer environment for their family.

In the 2019 report, Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences, published in the University of Pennsylvania Law Review, researchers found that: “In the justice system women face a legal twilight zone: Laws meant to protect them and deter further abuse often fail to achieve their purpose,” and when women report abuse by their male partners, “they are simply not believed.”

Despite the fact that Monasky had been her daughter’s primary caregiver since birth and that the infant had lived in Italy for just 8 weeks, the courts ruled that she was a “habitual resident” of Italy and had to be returned.

Michelle Monasky, originally from Ohio, was living in Italy with her now ex-husband, Domenico Taglieri in 2013, when he became physically and verbally abusive and repeatedly sexually assaulted her, court documents state.

Sworn testimony from Monasky reports that during one of the sexual assaults Taglieri climbed on top of her and stated “Spread your legs or I will spread them for you.” Legal documents also report that Taglieri often hit Monasky and punched her in the face. When the baby was born, Taglieri reportedly became irate at his newborn daughter and threatened to “shove [formula] up her ass.”

It was also reported in sworn witness testimony, which Taglieri “does not dispute,” that Taglieri, who was found liable of assault and battery in 2018, stated that he hit Monasky “because I deserve a beautiful woman and I do it for her own good.”

Soon after Monasky’s daughter was born, she fled to a battered women’s shelter with her baby. Taglieri gave consent for Monasky’s daughter to obtain her US passport (in Italy and in the US, both parents need to consent to this) and told Monasky on different occasions to go back to the US. After her daughter’s passport had arrived, Monasky left Italy. 

Shortly after they arrived in Ohio, Taglieri filed a Hague Convention petition in the United States District Court for the Northern District of Ohio claiming Monasky “abducted” the baby. 

Despite the fact that Monasky had been her daughter’s primary caregiver since birth and that the infant had lived in Italy for just 8 weeks, and the court having stated it found the reported abuse “deeply troubling,” the court still ruled that her daughter was a “habitual resident” of Italy and had to be returned. Monasky’s daughter was twenty-one months old when Monasky was ordered to give her to Taglieri.

Article 13 (b) of the Hague Convention is supposed to make an exception if returning the child exposes them to “physical or psychological harm,” but the courts regularly ignore the fact that domestic violence in the home is a risk factor to children — up to 60 percent of domestic abusers who harm their partners also abuse their children. And the psychological trauma of witnessing violence has a detrimental impact on children, even if they are not physically harmed. 

The American Psychological Association (APA) reports that family courts often do not consider the abuse of a mother pertinent in custody cases, and can discount the devastating impact of children witnessing domestic violence. Even in cases when children expressed fear of being with their fathers, their concerns can be dismissed. The American Judges Association also reports that batterers get shared custody in approximately 70 percent of abuse cases.

“The intention of this treaty was to protect children, but, in reality, the legal system and the Hague Convention often fail to understand the principles of trauma and how they play out for abuse survivors and vulnerable children.” — Dr. Sarah Gundle, New York City Psychotherapist

In addition, a recent study funded by the National Institute of Justice examined 4,388 custody cases and found that when a mother reported the father was abusive, they were not believed and lost custody 28 percent of the time. But when the fathers claimed abuse by the mothers, they only lost custody 12 percent of the time. 

In the US, the problem is compounded by the International Child Abduction Remedies Act (ICARA), the federal law that implements the Hague Convention: It requires an exceptionally high standard of proof for establishing grave risk, making it even harder for domestic violence to be recognized as a risk to children. “The courts (and Congress) have made it almost impossible to meet the grave risk standard. Despite Taglieri abusing Monasky while she was pregnant [and] while she was holding her infant daughter, and verbally abusing the newborn in the hospital, the courts still ruled there was no grave risk to the child,” said Joan Meier, co-counsel for Monasky and professor of clinical law at George Washington University.

Dr. Sarah Gundle, a psychotherapist in New York City, says that witnessing abuse, even as infants, carries the same risk of harm to children’s mental health as being abused themselves. 

“The risk to children when they live with an abuser is still substantial, even if the parents have separated,” Gundle said, “because if the object of the abuser’s rage is no longer present, batterers frequently take their anger out on their children.”

Monasky also couldn’t share custody of her child with Taglieri if she returned to Italy at that time, because, while she was fighting for her daughter in the US courts, Taglieri petitioned the Italian courts to revoke her parental rights — and even though Monasky and her lawyer were never informed of this proceeding, the Italian courts still terminated her rights.

Monasky’s case is not unusual.  

Two researchers and professors of social work, Dr. Taryn Lindhorst and Dr. Jeffrey Edleson, studied more than 300 Hague cases from 1993-2008 and 47 Hague Convention court decisions for their 2010 study Multiple Perspectives on Battered Mothers and their Children Fleeing to the United States for Safety. The study, funded by the US Department of Justice, found that an overwhelming number of “abductors” were really mothers escaping abuse — and that the majority of them were forced to return their children. 

“I constantly think of my daughter. I keep photos at my desk from the first years of her life when she lived with me and I often break into tears — but I know that if I give up, she will lose her mother forever, so there is no choice except to keep going, no matter what I lose. I live for her.”  — Michelle Monasky

The study also found that the children in these Hague cases had also been abused or had witnessed the ongoing abuse of their mother. “Child abduction was always seen as a bad thing, but in cases where mothers are fleeing abusers, they may be protecting their children from greater harm,” says Edleson. 

Monasky appealed her case to the United States Court of Appeals for the 6th Circuit and then to the Supreme Court of the United States. On February 25, 2020, in a 9-0 ruling, the Court severed Monasky’s chances of bringing her daughter home to the US and declined to issue a return order. 

In the opinion written by Justice Ruth Bader Ginsburg, the Supreme Court upheld the lower court’s ruling that Monasky’s daughter‘s habitual residence was Italy. The court noted that the Hague Convention “has a mechanism for guarding children from the harms of domestic violence” and references the Article 13 (b) exception. But advocates for abused mothers argue that this is the very “mechanism” that had already failed Monasky’s daughter and so many other children. The court also did not mention the trauma that Monasky’s daughter experiences from being separated from her mother — a separation that would now continue since the Italian courts had terminated her parental rights. “The [US Supreme] Court’s decision that legal fictions about the Hague Convention are more important than the well-being of a young child and her mother is deeply disturbing,” Meier said.

The creators of this treaty never intended for it to become a means for abusers to manipulate the courts. The convention was written to deter international child abductions — typically a non-custodial parent, often the father, who took the children over the custody arrangement or the anticipated custody arrangement. However, now that  “abductors” in Hague Convention cases are often mothers fleeing abuse, the unintended outcome of batterers being empowered in the courts necessitates that the Hague Convention (and ICARA) be amended to address this issue, according to Dr. Sarah Gundle.

“Changing an international treaty is challenging and requires consensus among its participants — but the safety of children is paramount and must be an impetus for change. The intention of this treaty was to protect children, but, in reality, the legal system and the Hague Convention often fail to understand the principles of trauma and how they play out for abuse survivors and vulnerable children,” she said.

In 2020, The Hague Commission issued the Guide to Good Practice regarding the Article 13 (b) grave risk exception, but the guide still did not adequately recognize the significance of domestic violence says Merle H. Weiner, a Hague Convention expert and Phillip H. Knight Professor of Law at the University of Oregon.

“The Guide to Good Practice doesn’t expressly address the misconceptions about domestic violence that lead some judges to disbelieve survivors, such as the fact that there may not be police or medical reports. Victims don’t seek these services for lots of reasons, including shame, embarrassment, and fear of reprisal. The Guide also does not address the horrible standard of proof that respondents in the U.S. must meet. I am fearful that many survivors of domestic violence will continue to lose their cases when, as a matter of justice, they should not,” she said.

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Currently, Monasky’s parental rights are still revoked in Italy where she is fighting for custody. Since she took her daughter to Ohio to protect her, she has been viewed as an abductor and has only been permitted extremely limited supervised visitation, usually every few months for less than two hours at a time. Monasky, who continues to fight for her daughter in Italy, had a court date scheduled for January 24, but it was postponed until March 9. After the current public health crisis worsened, the March 9 court date was canceled and her court date will now likely be this summer. 

After Taglieri prevailed in the US Supreme Court, his legal harassment of Monasky did not end, according to Meier — on March 26, 2020 Taglieri filed suit to force Monasky to pay his legal fees from the appeals case. 

In a December 2019 interview, Monasky reported that after the courts ordered her to return her daughter to Italy in 2016 when her daughter was only 21 months old, she was petrified of what would happen next. “When you’re a domestic violence victim and the courts have taken your child, it’s terrifying. How could they even consider removing my child from the only home she could remember and sending her to live in a country of which she had no memory and where the mother was still fighting the revocation of her parental rights?” Monasky said. 

Monasky says that every day she is filled with debilitating sadness and stress over being away from her child. “I constantly think of my daughter. I keep photos at my desk from the first years of her life when she lived with me and I often break into tears — but I know that if I give up, she will lose her mother forever, so there is no choice except to keep going, no matter what I lose. I live for her.” 

Misha Valencia is a journalist whose work has been featured in numerous publications, including the New York Times, Washington Post, Marie Claire, Healthline, Huff Post, Ozy, NY Metro Parents and DAME Magazine.


Related front page panorama photo credit: Adapted by WhoWhatWhy from Boris Thaser / Flickr (CC BY 2.0).

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8 responses to “Treaty Created to Stop Child Abductions Could Now Be Protecting Abusers”

  1. Avatar Meike says:

    Thank you for this article and bringing light to this issue. This law is wrong and needs to be changed. When the overwhelming majority of people being tried under The Hague law are primary carer mothers trying to protect their children from abuse and neglect, but the courts still do not see the abuse to be able to invoke article 13, children are not protected by this law. The intention behind the law was never to keep children with abusive and controlling parents and take them away from their primary carers. This law can even be invoked by nonresident parents living in a third country to prevent the resident parent from moving the children to a place where their lives will be improved. The law imprisons children and their carers.

  2. Avatar mm says:

    Thank you for writing this. This is such an unfair law, ruining so many children and mother’s lives as they flee domestic violence, towards what they believe will be the safe-haven of their hometown. I am a Canadian citizen who had a child in Greece with a partner who holds Botha citizenships. I fled abuse and filed for custody while in our Canadian hometown, and only found out many months later about The Hague Convention as my own lawyer did not understand what this would mean for my 3 year old child and I. I then had to return to Greece after nearly 1.5 years trying to start our new safer life. I’ve been back in Greece now, fighting back against my ex’s relentless attacks, both legal and threatening in other ways. According to Greek law I can leave and chose to live where I want to. But according to Canadian law, if my ex decides to file another H.C. against us, I don’t know what would happen, and if our situation could get even more dire. I spent all my life savings, inheritance, and thousands given and lent from various family members trying to end this awful war but still only have interim custody, and thus regardless of the continual abuse, I have no rights. He has never paid the child support ordered by the Court and hasn’t seen our child in nearly one year, but this doesn’t seem to interest anyone. I tried applying for legal aid but they hung up on me for not speaking Greek. Our child’s suffers greatly from anxiety and my only wish is to protect him. May justice prevail for all those treated wrongly.

  3. Avatar Loree St. Claire says:

    Sexism, racism, ageism, and “Otherism” are the battles we will have to fight over and over and over again. Hopefully someday there won’t be so many men in power and hopefully the women in power can see through the bull crap and set it straight. God bless all you moms, (pick a God).

  4. Avatar Alison Reiser says:

    If only the fathers who choose to initiate Hague proceedings could truly say the same thing – that they live for their children. Hopefully one day the judicial system will recognise that single fallacy, and stop ruling against the best interests of children.

  5. Avatar Briony P says:

    Clearly the treaty has to change -and fast; or Hague Abuse will continue, unchecked and thousands of children torn from their mothers (usually the primary carer). I was also told “take the kids and go home” but once home the US father filed Hague abduction which he’d planned months prior, and our daughter was brutally returned to the US. What leads mothers to crave raising their kids back in their home country with family/support/familiarity, is usually some form of abuse: physical, mental, coercive, psychological, emotional, sexual, financial, all of the above. Even if you have all the evidence to prove your case, once Hague is filed they and their lawyer will use that ruling against you in his own country to reduce your parental rights, gain more custody, and receive child support etc. They will try to phase you out of your child’s life. It’s a game to them.

  6. Avatar Breffni Wahl says:

    Thanks highlighting this issue Misha. I too have a nonprofit call Hague Collective we are looking to challenge The Hague Convention on child abduction. I also want to mention the goFundme page set up to help Michelle Monasky. Thanks again

  7. Avatar Tracy Glover says:

    This happened to me too. The Hague Convention ripped me from my precious daughter and I have barely seen her for the last four years. The Hague Convention allows abusive men to legally kidnap children. I hope all monsters involved in these cases are made answerable one day.

    Tracy Glover, mother of Eliška

  8. Excellent article Misha. On behalf of all “Hague Moms” and non-profit Mothers ReVolution, I thank you and all the researchers and advocates for bringing much needed attention to our plight. I’d like to add that many of us never see our kids again once they are deported. The fathers and their attorneys continue to use the Hague rulings against us to minimize or even cut all contact with our kids. The kids are constantly told their mothers are “child abductors” so they become fearful of us, as they trauma-bond with their abusers and their toxic environment that continues to reinforce this nonsense. As such The Hague Convention is used to permanently sever the Mother-Child bond by these Domestic Terrorists. Not only that, but also the bond with the entire Maternal family and the cultural heritage these children had with their Maternal country is destroyed.

    In my personal case, the father died 3 years after my daughter was brutally deported to him by a SWAT team from The Netherlands to California after the court in The Hague refused to consider evidence by 6 Child Mental Health professionals confirming molestation, abuse, and neglect by the father who was a self-admitted heroin and crack addict. After his death, his brother from New York abducted my daughter and then dumped her with strangers in California. When I filed a Hague Convention case against the brother, I lost. The Federal Court in California ruled that California had more rights over my daughter then I did, which violates the Hague Convention, American Law and Dutch Law. And reinforces the brainwashing of my child.

    As such, it is clear that The Hague Convention Treaty has become a vicious Fathers’ Rights Deportation Treaty. These Domestic Terrorist are truly among the most cruel and sadistic perpetrators.

    At Mothers ReVolution we aim to change the Hague Convention Treaty. “Habitual Residence” should be changed to “Habitual Parent,” with global Jurisdiction for the Children. All Court proceedings should be conducted in the English Language, with orders enforceable worldwide. A United Nations Oversight Committee must ensure and enforce proper implementation of the Treaty of participating countries. The Hague Convention Treaty is not only woefully outdated, it is downright discriminatory against Protective Mothers and their Children. If reform is not on the agenda of the men running this Treaty in Geneva, we demand complete abolishment.