After four years of medical school, and another four in residency, Jane Smith finally took her first job as an obstetrician/gynecologist at a hospital in Chicago. She remembers that moment as her first taste of freedom after many years of grueling work.
“It was a time in my life where, for the first time, I didn’t have the commitment of school and training and my board examination was just behind me, and wow, all of a sudden I could do things like have a vacation,” she says.
It was then that she met him. He was in town on business; a friend introduced them. He worked in Europe and, after a few months, she would fly to meet him for romantic weekends in Paris and at his home in what was then East Berlin. The Soviet Union was just starting to crumble, and the changes in world affairs lent an air of magic to the relationship.
“This was a time when the Wall was coming down,” Smith recalls, “and that area was full of promise and wonder and some of it was scary but some of it was so cool.”
They married two years later and Smith, who asked us to use her maiden name for this story, left a job she loved – and a city she’d come to call home – to join her new husband in East Berlin.
She soon discovered a disturbing side to her new partner’s personality.
According to Smith, the revelations began slowly. Looking back, she recalls “a couple of sort of watershed moments”: demeaning comments about her appearance, facts she thought she knew about her husband that turned out to be lies. She remembers discussions that began, “I said I owned the business” or “I said I didn’t have other girlfriends” that would end with “You know, that’s just stuff people say. You know, Jane, that’s just what people do, that wasn’t real.”
Soon there were other women. Smith lost contact with her family and friends in the United States. And, eventually, violence: bruises on her face and body she had to hide from inquiring co-workers at the hospital where she worked.
Still, their relationship continued. They had a baby, a son. She became pregnant with her second son a few years later.
When she returned from the hospital with their three-day-old baby in tow she found her husband in bed with another woman. He became enraged.
Smith remembers him throwing her against the door, her face hitting the doorjamb, her teeth breaking. All of that, she says, had happened before. But this time, as Smith explains, was different.
“That day was the first time when I had one kid in each arm: I had my three-day-old and I had my three-year-old and I was standing there and literally my face hit the doorjamb because I didn’t want the kids to hit it.”
She remembers thinking, “This is it. I’m maxed out. My arms are full, my face is messed up — this is done.”
Smith drove away with little apart from her two children and their car seats. She stayed in a small town in West Berlin and eventually made her way to Copenhagen, where she had spent a semester in college. She then traveled to Washington, near Seattle, to stay with her parents.
Six weeks later, after finding a job at a hospital in Seattle and daycare for her sons, a package landed on her doorstep from the U.S. State Department. Smith discovered that her husband was accusing her of child abduction, of kidnapping their two sons across international lines. He had filed what’s called a Hague Convention application.
“I started reading, what is the Hague Convention?” Jane recalls. “I realized, oh wow, okay, I needed to find an attorney. Not just a divorce attorney.”
An International Treaty with Unintended Consequences
In 1980, the U.S. and a number of international partners developed and signed on to the Hague Convention on Civil Aspects of International Child Abduction. The treaty lays out the rules for what federal officials are supposed to do when one parent takes a child away across international borders without the other parent’s permission.
Every country that signs on to the Hague Convention must create its own legislation to implement the treaty, to determine how the cases are going to be handled, by whom and where. The U.S. House of Representatives passed the American legislation, known as the International Child Abduction Remedies Act, in 1988.
Now a Senator, Benjamin Cardin was a House Representative as Congress debated the legislation. He spoke on the House floor in favor of the law, noting its purpose: “to remove any reward for kidnapping or taking a child to another country.”
He continued: “It does not seek to settle the dispute about legal, custodial rights, and I think that’s very important…to emphasize that point. The purpose of the Convention is not to settle disputes, but to return to the status quo, to remove the incentive to abduct a child.”
Lawmakers created the Hague Convention and the U.S. implementing legislation with the belief that abduction hurts children, that uprooting a child from his or her home can have devastating, long-lasting consequences. With that in mind, in Hague Convention cases, judges are instructed to send the child back to their home country, to the parent left behind, with very few exceptions.
Sudha Shetty, an assistant dean at the University of California, Berkeley’s Goldman School of Public Policy, notes that the 1988 debate over the U.S. law centered on a specific type of familial abduction: the father-as-kidnapper.
“Historically there have been many cases where children have been taken across international borders, generally by a father on vacation, and they were not being brought back,” she says.
According to the U.S. Census, when the Hague Convention was created in 1980, judges in divorce proceedings awarded custody to mothers 89 percent of the time. In 1990, mothers still received custody more than 80 percent of the time.
When Congress considered the Hague Convention and the implementing legislation, most of the testimony lawmakers heard was from left-behind mothers. As Law Professor Merle Weiner noted in a 2000 article about the Hague Convention, a number of Senators urged their colleagues to pass the implementing legislation with stories about left-behind mothers in their constituency, women who were trying to get their children back from husbands who had kidnapped them across international lines.
Today, more than a quarter of a century after the U.S. signed on to the Hague Convention, the standard profiles of abductor and left-behind-parent have shifted dramatically.
In 2010, Shetty consulted on a study co-authored by her husband, Jeffrey Edleson, Dean of the School of Social Welfare at UC Berkeley. They examined Hague Convention cases in U.S. courts and discovered that more than 60 percent of the taking parents – the abductors – were women.
They also learned that most of those women were victims of domestic violence.
Smith was one of those women.
Inside the Courtroom
In the United States, Hague Convention cases can be heard in almost any court, from federal court to family court. The judge decides whether to return the children to their home country for further custody proceedings (the default in most cases), or whether the children should stay and have custody decided in the new jurisdiction.
Smith’s case was assigned to Judge Larry Jordan, of Washington State King County Superior Court. Much to her surprise, her soon-to-be-ex-husband traveled to Seattle for the court proceedings.
According to Smith, he arrived with two police officers in tow. “The police officers had been brought in the room because he requested them — because he was afraid of my parents, is what was told to the court, that my parents would be angry at him, which was silly because they’re elderly,” she recalls.
Many legal proceedings hinge on credibility: whom should the judge believe? This is particularly true of cases involving families, such as divorce and custody proceedings, and Smith’s case was no exception. She recalls feeling humiliated as her husband’s attorney questioned her credibility “as a mom, my credibility as a doctor, as a daughter.”
Credibility aside, Hague cases differ from more routine custody cases in at least one respect: while routine cases assign custody on the basis of the child’s best interest, Hague cases presume from the outset that the child should be sent back, subject to very few exceptions. One key exception is if returning the child would put him or her at “grave risk of physical or psychological harm.”
Edleson, who co-authored the study with Shetty, has spent his career studying the psychological impact of domestic violence on children. He says that while the effects are severe and often long-lasting, they are not always understood by judges.
“The surprising finding for us is, if there was evidence that the child was directly abused, generally American judges would not send the children back,” he says. “But if the children were not abused – but their mothers were abused – in eight out of 10 cases, the kids were sent back to the abusive father.”
Since Hague cases can be heard in almost any court, not all judges assigned to Hague proceedings have heard cases involving charges of domestic violence. Shetty notes that the U.S. court system includes over 31,000 judges, and judges often rotate from one type of court to another.
“A judge might have taken training on understanding domestic violence issues…and its impact on children [and] on custody,” she says. The problem, Shetty explains, is “that judge might be moved off the court, so then we have a totally new judge on the bench.”
When Smith’s Hague Convention case landed on his desk, Judge Larry Jordan had never heard one before. Now retired from the King County Superior Court, Judge Jordan says that even though he and Smith have not spoken since the trial in 1998, he remembers the case well.
“Unfortunately, as time went on, she found that she was involved in a situation of domestic violence – that was her testimony,” he explains. “And as most people know, or should know, domestic violence is a cycle. It starts with control, and ends with some act of violence. And then there’s a honeymoon period, and then the cycle starts again.”
Unlike many of the judges in Shetty and Edleson’s study, Judge Jordan had made an effort to understand the complexities of cases involving domestic violence.
“I felt that, as a judge, I learned a lot about domestic violence. I went to seminars, I’ve had cases,” he says.
He later notes, “So when I heard the testimony, I saw the witnesses, the credibility decision was not that difficult.”
Judge Jordan eventually ruled in Smith’s favor: her children would stay in with her in the United States. But when Smith’s Hague Convention case landed on his desk, Judge Jordan had never heard one before. While he believes he made the right decision in Smith’s case, Judge Jordan says Hague Convention cases are particularly tough for judges.
“In law school, in my day, you didn’t take international law,” he says. “In addition, you don’t see very many [Hague cases]: not only don’t you have the education, but you don’t have the experience.”
Many judges are in the same situation, which is why some countries, like England and Australia, have judges and attorneys dedicated to hearing and litigating Hague Convention cases.
Given that the U.S. has more international abductions than any other signatory to the Hague Convention, that system is one that American courts may want to consider.
Today, 93 countries – about half of all nations – have signed on to the treaty. One of the most recent countries to adopt the Hague Convention is Japan, where Shetty and Edleson spent a lot of time, helping Japanese lawmakers craft their Hague Convention implementation law. Thanks in part to Shetty and Edleson’s efforts, the Japanese law specifically instructs judges to consider the psychological risk children face if one parent is subjected to violence by the other. The American legislation still has no such exception.
Settled and Safe
Today, Smith lives outside of Seattle. Both of her sons have thrived since they moved to the U.S.: her older son is now in college; her younger son is in high school.
Smith says that her experience has driven her professional success. She co-authored a federal grant-sponsored study about the long-term effects of domestic violence, and she’s traveled around the world with the U.S. State Department, speaking about the impact of violence against women.
“I’m 16 years not married and I’m fine with that,” she says. “I’ve become comfortable in my own skin living in a community where I think I’m the only single parent that shows up on the lacrosse team list, or the soccer team list, or for my son that’s now in college, his fraternity list.”
While remaining single has its challenges, Smith says, she takes pride in her sons, and in her professional success.
In the years since the trial, Smith says she has seen her ex-husband just once. She flew to Berlin last summer and met him in a very public place, for dinner. “There were no promises made that night, but neither one of us was angry,” she says.
She’s since spoken with him on Skype, and watched his face grow red as anger took over – an expression she remembered well. She feels safe now, though. At least with Skype, she says, “I can always hit the button and turn it off.”
This story was edited by Life of the Law’s Editor, Alisa Roth and Executive Editor, Nancy Mullane with sound design and production by Senior Producer, Kaitlin Prest.
Banner Photo Credit: aarongilson