What Constitutes a Grave Risk of Harm: Lowering the Hague Child Abduction Convention's Article 13(b) Evidentiary Burden to Protect Domestic Violence Victims
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2017]
WHAT CONSTITUTES A GRAVE RISK OF HARM?: LOWERING
THE HAGUE CHILD ABDUCTION CONVENTION'S ARTICLE 13(B)
EVIDENTIARY BURDEN TO PROTECT DOMESTIC VIOLENCE
VICTIMS
Kyle Simpson*
INTRODUCTION
Jane, an American woman, fell in love with her co-worker John, a Greek
man, while they were living in California.' After two years, John asked Jane
to move to Greece with him. While there, they married and had a child to-
gether. Jane had the picturesque life: living on the Aegean Sea and raising a
child with the man of her dreams. But after five years, things started to
change. John began to regularly punish the child by slapping her. Jane and
John began to argue. Eventually, the yelling evolved to destroying items in
the house, and John pushing both Jane and the child to the floor. When Jane
threatened to leave, John tore up her passport in a violent rage and pulled her
hair so hard that she was hospitalized with severe neck injuries. In fear for
her and her child's life, Jane attempted to leave Greece and return to Califor-
nia.
Before she could leave the country, however, John took the child back
to his house, and refused to let Jane speak with her. In response, Jane filed a
petition for custody. A Greek court assigned Jane care of the child until fur-
ther judgment, but when the child returned to Jane, it suffered from a variety
of new physical and emotional problems. Afraid of what John would do next,
Jane finally fled back to the United States to live with her family in Kentucky.
In response, John filed a petition through the Hague Child Abduction Con-
vention (the Convention), a treaty aimed to prevent parents from wrong-
fully removing their child to another country, to retain custody of the child
in an American court.2
In order to prevent the child's return to Greece, Jane argued to a Ken-
tucky court that the child fell under the treaty's Article 13(b) exception,
* George Mason University School of Law, J.D. Candidate, May 2017; Associate Research Editor,
GEORGE MASON LAW REVIEW, 2016-17; University of Iowa, B.A., Linguistics and International Studies,
2008. I would like to thank Thomas M. Velarde, Camilla Hundley, Sara Almousa, and the George Mason
Law Review members for their invaluable comments and feedback. And special thanks to my wife, Becky
Lettenberger, whose insight and support guide me in all that I do.
The facts of this narrative are based on the facts recounted in Janakakis-Kostun v. Janakakis, 6
S.W.3d 843, 845-48 (Ky. Ct. App. 1999).
2 See Convention on the Civil Aspects of International Child Abduction art. 1, Oct. 25, 1980, 1343
U.N.T.S. 89 [hereinafter Hague Convention].
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