The Hague Convention was created to protect children from abductions, but abusers can sometimes use it to regain custody of the children, and regain power over their victims.
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.
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).