Domestic violence survivors and their children who flee a perpetrator to a foreign country often face a unique legal challenge:  a petition to return the children to the country they fled, and back into the perpetrator’s control, under the Hague Convention on Civil Aspects of International Child Abduction.  The Hague Convention provides a cause of action for a parent to petition for the return of “abducted” children to a foreign country, if the children were habitually resident in the foreign country and removal from it allegedly interferes with the petitioner’s custodial rights.  Jewel Lazaro faced precisely that scenario:  fleeing with her child from domestic violence in Spain, she returned to the United States only to face her husband’s lawsuit in Seattle, Washington federal court seeking her child’s return to Spain.

Ms. Lazaro sought to assert a critical defense—namely, that her husband’s domestic violence created a grave risk of harm to her child, justifying her child’s removal to the United States.  When she sought to establish how her husband’s domestic violence created a grave risk of harm to her child, the trial court denied her request. Instead of allowing her to provide expert psychological testimony common in Hague Convention cases, the trial court only permitted testimony from an overseas psychologist who evaluated the child for a different purpose over a year earlier.  The trial court then summarily rejected the only testimony it permitted Ms. Lazaro to provide, found she had not established her child faced a grave risk of harm, and granted her husband’s request to return the child to Spain.  Ms. Lazaro appealed, arguing the trial court abused its discretion by denying her the opportunity to present expert discovery.

Proskauer filed an amicus brief in support of Ms. Lazaro on behalf of Sanctuary for Families, Legal Momentum, the Women’s Legal Defense and Education Fund, Family Violence Appellate Project, Joan S. Meier, Lawyers Committee Against Domestic Violence, Legal Voice, Merle H. Weiner, Sexual Violence Law Center, and the Washington State Coalition Against Domestic Violence. The amici argued expert testimony is critical in evaluating a grave risk defense in Hague Convention cases, denying such testimony is tantamount to a denial of due process, and that the trial court improperly used Ms. Lazaro’s efforts to seek safety in the United States against her.

The Court of Appeals for the Ninth Circuit vacated the trial court’s decision, citing Proskauer’s amicus brief with approval, and drawing a clear line in support of survivors of domestic violence and their children, stating, “courts should not allow haste to overwhelm a respondent’s right to develop the psychological evidence needed to make out a viable Article 13(b) defense where she has alleged with considerable particularity that the petitioner has engaged in domestic violence.”  On remand, Ms. Lazaro will be able to proffer expert testimony to help establish the grave risk of harm her child faces should the child be returned to Spain.  In particular, the Ninth Circuit ordered the trial court to appoint a forensic psychologist to examine the child.

The Proskauer team included Margaret Dale, William Dalsen, Lucy Wolf, and Nicole Sockett.