She's only 7, a schoolgirl from
One powerful argument was filed by
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
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
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
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
Walls cited those rights in ordering Arianna to
Star-Ledger, Monday, November 12, 2007