Walsh v. Walsh, 221 F.3d 204 (Mass. 2000)
- Docket Number
- 99-1747, 99-1878
- Published
- Yes
- Decision Date
- 2000-07-25
- Name of Court
- United States Court of Appeals, First Circuit
- Opinion by
- Lynch, Sandra L.
- Counsel for Petitioner
- Merrill, E. Chouteau;
- Counsel for Respondent
- Najarian, Robert
- Counsel for Court
- Requesting State
- Ireland
- Requested State
- United States of America
- Procedural History
-
On August 5, 1998, the Petitioner/father, living in Ireland, filed a Hague Convention petition in U.S. district court for the return of his two children. On December 18, 1998, the district court entered judgment for the Petitioner/father and ordered the return of his children to Ireland, subject to undertakings. The Respondent/mother filed a motion to dismiss or vacate the district court’s judgment. The Respondent/mother’s sister concurred in that motion and filed a motion to intervene on behalf of the children. The district court limited the intervention to the issue of whether the fugitive disentitlement doctrine barred the Petitioner/father’s petition. On June 11, 1999, the district court denied the motion to vacate or dismiss the judgment. The district court also ordered a stay execution of its order pending appeal. The Respondent/mother and her sister appealed the grant of the petition and the limitation of the intervention. The Petitioner/father appealed the court’s decision to allow intervention and it’s issuance of a stay pending appeal.
- Summary of Facts
-
Respondent/mother, a naturalized citizen of the United States, moved to her home country Argentina in 1997 and met Petitioner/father. About four months into their relationship, Petitioner began abusing Respondent, and that abuse continued throughout their relationship. They cohabitated, but in March 2000, while pregnant, Respondent returned to the United States where she gave birth to a girl in June 2000. Petitioner also moved to the United States in April 2000, and the couple resumed cohabitating. Petitioner and Respondent returned to Argentina in September 2000 with their child. In June 2002, the parties separated, were briefly reconciled, but separated for the last time in June 2003. Petitioner, the non-custodial parent, had regular visitation with the child under a custody agreement. In December, Respondent went to family court in San Martin and complained that Petitioner was harassing her and sexually abusing the child. At that time, the court issued a restraining order and set the matter on for a hearing in March 2004. But in January 2004, Respondent took the child to the United States.
The Petitioner/father, an Irish national, and the Respondent/mother, a U.S. national, met in Massachusetts in 1988. In 1989, they had a daughter. They were married in the U.S. in 1992, and lived in Massachusetts until 1994. In 1993, the Petitioner/father was arraigned for “threatening to kill another person,” (not Respondent/mother), and in 1994, he fled to Ireland to avoid prosecution. Shortly thereafter, the pregnant Respondent/mother followed the Petitioner/father to Ireland with their daughter.
The trial court found overwhelming evidence of severe and frequent abuse of the Respondent/mother by the Petitioner/father beginning in 1992, and continuing until 1997, when the Respondent/mother fled with her children to safety in the United States. This abuse occurred frequently while they lived in Ireland, including while the Respondent/mother was pregnant with their son in 1994, and later, in violation of a domestic protective order. Much of this abuse occurred in front of the two children and was occasionally directed at them. In one incident, the Petitioner/father got into a bloody, physical fight with one of his adult children from a previous relationship and forced the couple’s young daughter to witness the aftermath. The Petitioner/respondent would frequently scream at the couple’s two young children and lock them in their rooms. After the Petitioner/father had violated the protective order several times and twice destroyed the home of the Respondent/mother, on November 17, 2007, she took her two children and flew home to the United States in violation of an existing court undertaking. It was at this time that the couples’ young daughter told a social worker that she was terrified of her father and the social worker diagnosed her with post-traumatic stress disorder.
The district court found that though the Respondent/mother had serious and real concerns for her own safety and that of her children, she had not shown by clear and convincing evidence that her children faced a grave risk of exposure to harm or that their situation would be intolerable. The court ordered several undertakings, with similar conditions as the protective order she had in place previously, to protect the Respondent/mother if she chose to return to Ireland with her children. The appellate court reversed the district court’s holding by finding that the children would face a grave risk of harm if they were returned to Ireland. The court based this finding on several factors, including that children suffer real harm when they are exposed to spousal abuse, the Petitioner/father had abused his own children before, and the Petitioner/father has been chronically disobedient of court orders in the past. The appellate court affirmed the district court’s procedural findings and its finding that the fugitive disentitlement doctrine did not bar the Petitioner/father from his right to petition the court. The court cited the importance of parental rights and the fact that the Petitioner/father’s fugitive status was not directly related to this civil cause of action.
- Defenses Raised
-
Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country
- Statutes Considered (ICARA)
- 11601(a)(4), 11603(a)(2)
- Articles Considered (Hague Convention)
- 3, 4, 11, 12, 13(a), 13(b), 18, 20
- Cases Considered
- Blondin v. Dubois, 19 F.Supp.2d 123 (S.D.N.Y. 1998); Blondin v. Dubois, 189 F.Supp.3d 240 (2d. Cir. 1999); Blodin v. Dubois, 78 F.Supp.2d 283 (S.D.N.Y 2000); Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.1996); Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir.1995); Turner v. Frowein, 752 955 (Conn. 2000)
- Judicial Outcome or Order
- Reversed and Remanded
Why this Project?
We are a team of individuals from various professional backgrounds who are dedicated to creating a comprehensive resource that will enable mothers, domestic violence advocates, attorneys and judges to better prepare themselves for Hague Convention cases in the United States' legal system.
