Protecting Domestic Violence Victims: Expanding the Court’s Interpretation of Grave Risk

Protecting Domestic Violence Victims: Expanding the Court’s Interpretation of Grave Risk

                                                                                                                        Emily Schmidt*

The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty that provides the procedure for returning children to their home countries following abduction out of the country.  Convention on the Civil Aspects of International Child Abduction art. 1, Oct. 25, 1980, 1343 U.N.T.S. 98.  The intentions behind the drafting of the treaty were both to “secure the prompt return of children wrongfully removed to or retained” in any State that is a signatory, and to “ensure that rights of custody and of access under the law” in one State are recognized in other States.  Id.  In other words, the treaty promotes returning children to their homes and works to prevent venue shopping in custody cases.  In order to return a child to their home country, the left behind parent petitions for their return.

  1. Petition for Return: Grave Risk Exception

The Hague Convention provides a structure as to what the petitioning parent must prove to warrant a return as well as the affirmative defenses that are recognized by the treaty.  The child must be removed or retained “wrongfully,” or against the custodial rights of the left-behind parent, in order for return to be granted.  Id. art. 3.  However, even when a parent can prove the child was wrongfully removed, there remain certain affirmative defenses that the abducting parent can argue against the return.  See id. art. 13.  The recognized affirmative defenses include grave risk, parental consent to removal, and sufficient age and maturity of the child.  Id.  Recent cases have seen an expansion of the use of affirmative defenses and specifically a broader reading of grave risk.

  1. Narrow Interpretation of Grave Risk

In the past, courts have utilized a narrow interpretation of the grave risk defense.  See Sabogal v. Velarde, 106 F. Supp. 3d 689, 703 (D. Md. 2015).  In general, grave risk required showings of abuse against the child and abuse only of any other party is typically insufficient evidence of grave risk.  See id. at 704.  For instance, courts have found that abuse against the abducting parent or any child who is not a party in the suit is not sufficient to prove that it would place the child at hand in grave danger.  See, e.g., Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (holding that the abuse to the mother did not impact the child in question).

This narrow interpretation of the grave risk defense leaves victims of domestic violence who flee their home countries seeking protection in a difficult position.  See Karen Brown Williams, Fleeing Domestic Violence: A Proposal to Change the Inadequacies of The Hague Convention on the Civil Aspects of International Child Abduction in Domestic Violence Cases, 4 J. Marshall L.J. 39, 65 (2011).  If only the parent was abused and not the affected child, then the defense would not necessarily prevent return of the child.  Id.  This would leave the abused parent with limited options of either sending the child back to the other parent without them or returning to the abusive situation themselves and still possibly losing custody of the child in the home country.  Id.

III.       The Court’s Increasing Emphasis on Psychological Harm

In the United States District Court for the District of Maryland, the reading of grave risk has been expanded to place greater emphasis on the psychological impact of verbal and emotional abuse on a child as well as the impact on the parent.  See, e.g., Luis Ischiu v. Gomez Garcia, No. TDC-17-1269, 2017 WL 3500403, at *7–11 (D. Md. Aug. 14, 2017); Sabogal, 106 F. Supp. 3d at 702–07.

Velarde, the mother of two minor children, fled to the United States with the children following separation from Sabogal, the father, in 2014.  Sabogal, 106 F. Supp. 3d at 698.  While in Peru, the father had resorted to name-calling and threatening the mother and children, resulting in a decision in the courts of Peru, the home country, to temporarily grant the mother custody of the children.  Id. at 696–97.  The United States District Court determined that the father retained his custodial rights in regard to the wrongful removal of the children, but went on to consider affirmative defenses, including grave risk.  Id. at 701–07.  The court reviewed the verbal and emotional abuse suffered by the mother and children and pointed to the language in the Hague Convention that includes not only physical harm, but also psychological harm to the children.  Id. at 704.  While most previous cases emphasized physical and sexual abuse of the children for the grave risk exception, the court in Sabogal relied on the psychological impact that the father’s verbal abuse on the mother and children had on the children in determining that returning to the father’s custody would be of grave danger to the children.  Id. at 706.  Therefore, the court determined that there was clear and convincing evidence as to the grave risk of returning the children to their father in Peru based upon the psychological harm he had inflicted.  Id. at 707.

In a recent decision in the same court, with the same judge presiding, the court again used  the expansion of the grave risk defense to better protect a victim of domestic violence.  See Luis Ischiu, 2017 WL 3500403, at *7–11.  Gomez Garcia, the mother, fled from Guatemala to the United States in 2016 with the son she shared with Luis Ischiu, the father.  Id. at *2.  The mother had suffered from verbal, emotional, physical, and sexual abuse at the hands of her husband’s family while living in the family compound, resulting in a diagnosis of post-traumatic stress disorder and clinical depression with anxiety.  Id. at *3.  When the mother first left the home she obtained a temporary order in Guatemala protecting her from the father, but when she felt the Guatemalan courts would not be able to protect her from him, she left the country.  Id. at *2.

The Court determined that the father retained custody rights concerning where the child lived under Guatemalan law although there was a temporary order preventing him from contact with the mother and child.  Id. at *5–6.  With the remaining rights, the removal of the child from the father’s custody was therefore deemed wrongful and the court looked to the mother’s affirmative defenses, including grave risk.  Id. at *7–11.  While the child himself was never abused by the father, the court noted that the child was aware of the abuse his mother suffered and had witnessed at least one incident.  Id. at *10.  Therefore, the court determined that the child would be in grave risk of danger based both on the psychological impact of his mother’s abuse and through the possibility that he could be subjected to the same level of abuse if he was returned to a violent home in Guatemala.  Id. at *11.

  1. Conclusion

Recent cases have seen the expansion of the grave risk defense to include not only physical and sexual abuse against the child, but also the psychological impacts on a child.  See, e.g., Luis Ischiu, 2017 WL 3500403, at *7–11; Sabogal, 106 F. Supp. 3d at 702–07.  It appears that this reasoning is being more broadly utilized today, although it has been included in the Convention since it was drafted.  See Convention on the Civil Aspects of International Child Abduction, supra, art. 13.  The use of not only actual abuse against the children, but witnessing abuse against a parent, has broadened the defense and provided greater protection for victims of abusive relationships who fled with their children to escape these situations.  See, e.g., Luis Ischiu, 2017 WL 3500403, at *10–11; Sabogal, 106 F. Supp. 3d at 704–06.    There is a lot of progress yet to be made in protecting victims of domestic violence, but considering the psychological impact on children resulting from the abuse of a parent is a step in the right direction.



*Emily Schmidt is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review.  She is also a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society, Treasurer of the University of Baltimore Students for Public Interest, Center for International and Comparative Law Fellow, Law Scholar, and Teaching Assistant.  During summer of 2017, Emily worked as a law clerk at Miles & Stockbridge, PC in their Family Law & Private Clients Group.  Next summer, Emily will be joining Whiteford Taylor & Preston LLP as a Summer Associate.



Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: