This article offers a new approach for analyzing the 13(b) grave risk of harm defense, specifically as it relates to victims of domestic violence and their children, that is both practical and clear, and rooted in principles that are grounded in American jurisprudence that will result in more consistent rulings. Part I of this article provides background to the text of the Hague Convention, including the purposes of the text, the systematic return of a child to his or her habitual residence, the Article 13(b) grave risk of harm exception, and the role of undertakings. In Part II, the facts of the Monasky case are introduced, as well as its procedural history relative to Article 13(b). Then, Part III discusses previous 13(b) cases and considers when victims of domestic violence are victims by proxy, applying a tort law principle for guidance. Finally, this article concludes with the author’s proposed framework in the interest of judicial economy and expediency in future 13(b) cases, so as to not waste the resources of the courts or litigants, but rather to benefit the court, the parties, and the child(ren) involved. This proposal serves the interests of justice and the policy set forth in the articles of the Convention itself for a swift resolution.


Monasky v. Taglieri, 1980 Hague Convention on the Civil Aspects of Inter- national Child Abduction, Children

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33 Journal of the American Academy of Matrimonial Lawyers 571 (2021)