Family Law

New Jersey Hague Convention Case

She's only 7, a schoolgirl from Elizabeth, but Arianna Adan soon may change state, national and even international law. Legal briefs filed by two state agencies, a coalition of national organizations and her mother's lawyers seek not only to block Arianna's deportation in an international custody case, but also to change the way the United States abides by the Hague Convention, a treaty designed to end cross-border abduction of children by their parents.

One powerful argument was filed by New Jersey's Office of the Child Advocate, which joined the case to obtain a ruling requiring federal courts to appoint lawyers to represent children caught between feuding parents in international disputes. "The court has an obligation to ensure the protection of the child's compelling interests, which require the appointment of a guardian ad litem," the child advocate's office wrote, using the legal term for an independent lawyer named to represent a minor.

Federal courts should take the step, the state agency argued, in all disputes in which --as in Arianna's case -- the issue of possible harm to the child is raised. Courts have discretion to name a guardian, but often don't, letting warring parents represent children. The brief argues only independent representation can protect "the fundamental rights of all children to be free from physical or psychological harm."

Arianna is an American, born here. Her mother, Elena Mazza, also American, fled Argentina in 2004 after, she says, Arianna's father abused them and local police did nothing. The father, Ariel Adan, an admitted drug-abuser who twice pleaded guilty to state domestic violence charges, denied abusing Arianna. Mazza and Adan are not married.

Federal Judge William Walls twice ordered Arianna's deportation to Adan's homeland where, he said, local courts should determine custody. Walls' first ruling was overturned by the 3rd U.S. Circuit Court of Appeals, which is now reviewing his second decision.

A coalition of groups, many federally funded, also is using Arianna's case to try to change the way this country abides by the treaty -- ratified by the United States in 1988 -- governing international custody disputes.

Most federal courts narrowly construe their role, refusing to return children to the countries from which they were abducted unless they find "grave risk of harm," often interpreted as returning children to a war scene. But women's groups have argued courts must consider the possibility the children were rescued from an abusive parent rather than abducted.

The organizations joining Arianna's case want federal courts to recognize that a child's mere witnessing of domestic violence would be enough to cause harm. The groups include the National Center on Domestic and Sexual Violence, the Battered Women's Justice Project, the Advanced Special Immigrant Survivors Technical Assistance project, the New Jersey Coalition for Battered Women, and the Seton Hall Law School Center for Social Justice. They also argue courts should not return a child to a nation where an abusive parent might win custody because it would violate "fundamental principles of American public policy, which seek to protect child victims from exposure to their abusers."

Adopting the view would dramatically broaden how American courts have treated Hague Convention cases in the last two decades. So would embracing an argument in another brief filed by state Attorney General Anne Milgram for the state Department of Children and Family Services. The state attacks a problem faced by abused women who escape from a nation where paternalistic traditions favor men's rights. Here, fathers can lose custody rights for many reasons; in places like Argentina, those rights rarely are lost.

Walls cited those rights in ordering Arianna to Argentina. Milgram turned the argument around, saying the very difficulty in overturning Adan's rights there meant the child was safer here. "Such differences in procedure which lessen the protections a child receives can themselves preclude the return of a child," the state brief argued. If adopted, such a view also would be a major change in how federal courts have ruled. They have ignored state doctrines like "the best interest of the child." Adan has a month to file a reply.

Star-Ledger, Monday, November 12, 2007

From International Family Law posted 2007-11-13.