The Hague Domestic Violence Project - The Hague Domestic Violence Project—Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002)

Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002)

Docket Number: 02-1065 and 02-1070
Published: Yes
Decision Date: 2002-04-03
Name of Court: United States Court of Appeals
Opinion by: Lynch, Sandra L
Counsel for Petitioner: Cullen, Stephen J
Counsel for Respondent: Burnett, Elizabeth B
Counsel for Court
Requesting State: Sweden
Requested State: United States of America
Procedural History: District Court decided that Swedish courts should decide whether sexual abuse had occurred, and the steps were necessary to protect children. This decision was appealed by Respondent/Mother, was reversed in this courts decision, and remanded for further evaluation consistent with the courts rulings.
Summary of Facts: Respondent/Mother is a dual citizen of Sweden and the United States. Petitioner/Father is a Swedish citizen and an Iranian national. The two had their first daughter and were married in 1994, and had their second daughter in 1998. In February 2000 they filed for divorce, Respondent/Mother alleging that Petitioner/Father was abusive and controlling, and that she suspected him of having inappropriate sexual contact with their daughters. Respondent/Mother then took the girls to the United States, returning to appear in a custody hearing, and received joint custody of the children. Respondent/Mother shortly after began noticing vaginal redness after the girls returned from visits with their father. When asked about it by a psychologist, the younger girl said Baba (her word for father) do like this and made a masturbatory motion. In November 2000 the psychologist issued a report of suspected child sexual abuse to the Stockholm police, who terminated their investigation after an hour long interview with the older girl, and a ten minute session with the younger. Respondent/Mother requested an investigation from the Swedish social services agency, which the agency said it could not perform without the consent of the Petitioner/Father. Respondent/Mother said that the younger daughter had consistently stated that Baba had hurt her pee pee, had recurrent nightmares, and showed sexually inappropriate behavior towards Respondent/Mothers fiancée. On March 29, 2001, Respondent/Mother filed a motion with the Stockholm District Court requesting a full sexual abuse investigation, which Petitioner/Father opposed, and the court denied. On June 25, 2001, Respondent/Mother left Sweden with the girls and returned to the U.S. and arranged for a sexual abuse evaluation, but the younger girl refused to speak to the evaluator. On August 22, 2001, Petitioner/Father filed a petition seeking the return of the children under the Hague Convention. Trial was conducted from December 19th through December 21st, and the court decided that it would defer the matter of whether sexual abuse occurred to the Swedish court, and listed conditions for the childrens return. The Swedish court did not have legal authority to enforce these conditions, however, if the children were returned to Sweden. Respondent/Mother appeals the decision that the District Court made, requiring the children to be sent back to Sweden for a sexual abuse evaluation. She asserted that an evaluation could not be properly done in Sweden and should instead be conducted in the United States.
Defenses Raised: Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country. Hague Article 13b: The court should find that the child has attained an age and degree of maturity at which it is appropriate to take into account the childs views, and the child objects to return to the requesting state. Hague Article 20: Return of the child would violate principles of human rights and fundamental freedoms.
Statutes Considered (ICARA): 11601(b), 11603, 11603(e)
Articles Considered (Hague Convention): 3(y), 12, 13, 13(b), 18, 19
Cases Considered: Blondin v. Dubois, 238 F.3d 153 2001; Danaipour v. McLarey, 183 F.Supp.2d 311 2002; Feder v. Evans-Feder, 63 F.3d 217 1995; Friedrich v. Friedrich, 78 F.3d 1060 1996; Panazatou v. Pantazatos, 1997 WL 614519 1997; Roberts v. Roberts, 1998 LEXIS 4089; Turner v. Frowein, 752 A.2d 955 2000; Von Kennel Gaudin v. Remis, 282 F.3d 1178 2002; Walsh v. Walsh, 221 F.3d 204 2000; Whallon v. Lynn, 230 F.3d 450 2000
Judicial Outcome or Order: Reversed and Remanded
Posted: 2006-09-15

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