354 F.Supp.2d 62 (2005) | Cited 9 times | D. Massachusetts | February 4, 2005


The petitioner brought this action seeking the return of her four minorchildren to Northern Ireland pursuant to the 1980 Hague Convention on theCivil Aspects of International Child Abduction ("Convention"), Oct. 25,1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, and its implementingstatute, the International Child Abduction Remedies Act ("ICARA"),42 U.S.C. §§ 11601-11610. Upon consideration of the evidence adduced at atwo-day trial without a jury and the parties' submissions, I concludethat the petition ought to be denied and the return of the children toNorthern Ireland refused. In support of that conclusion, I make thefollowing findings of fact and rulings of law: I. Findings of fact

The petitioner, Dympna McManus, a citizen of Northern Ireland, and therespondent, Peter McManus, a citizen of the United States, were marriedin Massachusetts in 1988 and again in a religious ceremony in NorthernIreland in 1989. They have had four children: Daniel and Sean arePage 2fourteen-year-old twins, Stephanie is thirteen, and Peter is eleven.1The children were all born in the United States and are U.S. citizens.

The family lived together in Massachusetts until May 2001, at whichtime they relocated to Northern Ireland where Dympna's extended familylived. When they relocated, they sold their house and cars inMassachusetts and shipped their furniture and personal belongings toNorthern Ireland. After arriving in Northern Ireland, they rented ahouse, purchased a car, and applied for government-provided healthinsurance. Peter did not have a job in Northern Ireland. The childrenattended school there and participated in numerous school and socialactivities.

Peter and Dympna's marriage was troubled for some years prior to themove to Northern Ireland. It was marked by poor communication,altercations, and estrangement. After the move, their relationship didnot improve, and in December 2001, Peter returned alone toMassachusetts. Dympna and the four children remained in NorthernIreland. Peter visited the children a few times during 2002, and eachtime he returned alone to Massachusetts. He commenced divorce proceedingsin the Massachusetts probate and family court in early 2003.

In July 2003, the children, with Dympna's consent, traveled toMassachusetts for what was to be a three-week visit with their father.They traveled with round-trip plane tickets and were scheduled to returnto Northern Ireland on July 24, 2003. While visiting Peter, the childrendisclosed the unpleasant details of their living conditions in NorthernIreland. For example, the children had grown unruly and disobedient inDympna's care, and she drank alcohol regularly to excess, whichinterfered with her ability to care for and control the children. Thechildren testified that on severalPage 3occasions Dympna struck them or threw objects at them. On at least twooccasions, Dympna summoned her brother, Liam, and a neighbor, Graham, tohelp discipline the children. Liam and Graham struck at least two of thechildren. As it was described at trial, the household had becomechaotic, and the children were quite unhappy.

After hearing of these conditions, Peter decided to keep the childrenin Massachusetts. He left two messages on Dympna's answering machinetelling her that the children would not return to Northern Ireland as hadbeen previously scheduled. Peter and Dympna did not speak about Peter'sdecision to keep the children. Dympna consulted a solicitor in NorthernIreland for advice about how to secure the return of the children, butaside from filing an application under the Convention with the properauthorities in Northern Ireland, she did not seek any relief from thecourts of Northern Ireland or the United States. In December 2003, Peterobtained a divorce judgment from the Massachusetts probate and familycourt, including a grant of temporary custody of the children. Dympnafiled the present petition under the Convention in April 2004.

II. Rulings of law

A. Legal framework

The Convention was adopted "to protect children internationally fromthe harmful effects of their wrongful removal or retention and toestablish procedures to ensure their prompt return to the State of theirhabitual residence." Convention, T.I.A.S. No. 11,670, at 7. TheConvention's remedial scheme is designed "to restore the pre-removalstatus quo and discourage a parent from crossing international borders insearch of a more sympathetic forum." Whallon v. Lynn, 230 F.3d 450, 455(1st Cir. 2000). It "seeks to deter those who would undertake suchabductions by eliminating their primary motivation for doing so. Sincethe goal of the abductor generally is to obtain a right ofPage 4custody from the authorities of the country to which the child has beentaken, the signatories to the Convention have agreed to deprive hisactions of any practical or juridical consequences." Mozes v. Mozes,239 F.3d 1067, 1070 (9th Cir. 2001) (citations and internal quotationsomitted). To achieve its goals, the Convention requires that "childrenwho have been wrongfully removed from their country of habitual residencemust be returned, unless the abductor can prove one of the defensesallowed by the Convention." Danaipour v. McLarey, 286 F.3d 1, 13 (1stCir. 2002).

Under ICARA, a petitioner seeking the return of a child must establishby a preponderance of the evidence that the child has been wrongfullyremoved or retained within the meaning of the convention.42 U.S.C. § 11603(e)(1). Under Article 3 of the Convention, The removal or retention of a child is to be considered wrongful where — (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.Convention, art. 3, T.I.A.S. No. 11,670, at 9. If the petitionerdemonstrates that a child has been wrongfully retained, then the courtmust order the prompt return to the child's state of habitual residence,unless the respondent demonstrates that one of the exceptions expressedin Article 13 or Article 20 applies. 42 U.S.C. § 11601(a)(4); Whallon,230 F.3d at 454.

B. Wrongful retention

To prove that Peter's retention of the children in Massachusetts inJuly 2003 was wrongful, Dympna must prove that at the time of theretention Northern Ireland was the children's place of habitual residenceand that she had been and was exercising custody rights in NorthernIreland.Page 5Neither the Convention nor ICARA defines the term "habitual residence."It has been left to the courts to develop a working definition. The ThirdCircuit has defined it this way: [W]e believe that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a `degree of settled purpose' from the child's perspective. We further believe that a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there.Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995).2 To establishan habitual residence, it is not necessary to have an intention to stayin the place indefinitely. Id. at 223.

The Ninth Circuit, in a case where a child had a clearly establishedhabitual residence in the native country of one parent and then took upresidence in the native country of the other parent, found: When a child has no clearly established habitual residence elsewhere, it may become habitually resident even in a place where it was intended to live only for a limited time. The same is true if the child's prior habitual residence has been effectively abandoned by the shared intent of the parents. Where there is no such intent, however, a prior habitual residence should be deemed supplanted only where `the objective facts point unequivocally' to this conclusion.Mozes, 239 F.3d at 1082 (footnote and citation omitted).

Applying those principles here, I conclude that Northern Ireland wasthe children's place of habitual residence in July 2003 when Peterretained them in Massachusetts. It is clear that prior to May 2001 (whenthe family moved to Northern Ireland) their habitual residence was inMassachusetts; in fact, it was the only place where they had lived.Nevertheless, the evidence at trial demonstrated that when they moved toNorthern Ireland in May 2001 the parents had decided toPage 6leave Massachusetts for at least the near foreseeable future and to maketheir home for an indefinite time in Northern Ireland. While the parentshad not reached an agreement on how long they would stay in NorthernIreland, they nevertheless had no plans to return to the United States.

During the two years that they lived in Northern Ireland, the childrenbecame settled and acclimated to their new location. They enrolled in andattended schools, joined organized sports teams, participated in churchactivities, and engaged in other activities as residents of the countrywould.

Peter does not dispute the extent to which the children had becomesettled and acclimated in Northern Ireland and were participating inacademic, civic, and family life there. Further, he does not suggest thathe or Dympna had any plans to move the children away from NorthernIreland at the time they visited him in July 2003. On the contrary, heacknowledges that the children had round-trip plane tickets and werescheduled to return to Northern Ireland after a three-week stay inMassachusetts. It was only after they arrived in Massachusetts and helearned of the circumstances in Northern Ireland that Peter decided toretain the children here.

On the basis of this evidence, I find by a preponderance of theevidence that at the time the children visited their father in July2003, Northern Ireland was their place of habitual residence as thatconcept is employed in the Convention.

The second proposition that Dympna must establish in order to show thatthe retention of the children in the United States was wrongful is thatshe was at the time exercising custody rights granted her under the lawsof Northern Ireland. This proposition is not contested by Peter, for goodreason. The undisputed evidence establishes that Dympna had physicalcustody of the children inPage 7Northern Ireland and was solely responsible for their care (except forfinancial assistance from Peter) for approximately eighteen months afterPeter left Northern Ireland and returned to Massachusetts.3

Accordingly, because Northern Ireland was the children's place ofhabitual residence and Dympna had and was exercising custody rights priorto their trip to Massachusetts in July 2003, the conclusion follows thatPeter's retention of the children in Massachusetts was wrongful withinthe meaning of the Convention.

C. Exceptions

Peter asserts that, notwithstanding his wrongful retention, there aretwo exceptions to the Convention's rule of summary return that apply andshould persuade me to deny the petition for the return of the children toNorthern Ireland. Invoking Article 13(b) of the Convention, he arguesthat "there is a grave risk that" return of the children would exposethem "to physical or psychological harm or otherwise place [them] in anintolerable situation." Convention, art. 13, T.I.A.S. No. 11,670, at 15.He also invokes a second Article 13 exception that provides, "Thejudicial or administrative authority may also refuse to order the returnof the child if it finds that the child objects to being returned and hasattained an age and degree of maturity at which it is appropriate to takeaccount of its views." Id.Page 8

"The Convention establishes a strong presumption favoring return of awrongfully removed child," and "[e]xceptions to the general rule ofexpedient return . . . are to be construed narrowly." Danaipour,286 F.3d at 13-14 (citations omitted). The party opposing return of achild has the burden of proving the Article 13(b) "grave risk" exceptionby clear and convincing evidence; the applicability of other Article 13exceptions, including the "objection" exception, need only be proved by apreponderance of the evidence. 42 U.S.C. § 11603(e)(2). The Court hasdiscretion to order the return of a wrongfully retained child even if theconditions for an exception are met. Danaipour, 286 F.3d at 14.

1. Grave risk of harm

To sustain the burden under the Article 13(b) exception, Peter mustshow that, if the children are returned, the risk of physical andpsychological harm is "grave," which is said to be "a great deal more thanminimal," Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000), and "morethan serious," Danaipour, 286 F.3d at 14. The First Circuit hasexplained: The text of the article requires only that the harm be `physical or psychological,' but context makes it clear that the harm must be a great deal more than minimal. Not any harm will do nor may the level of risk of harm be low. The risk must be `grave,' and when determining whether a grave risk of harm exists, courts must be attentive to the purposes of the Convention. For example, the harm must be `something greater than would normally be expected on taking a child away from one parent and passing him to another'; otherwise, the goals of the Convention could be easily circumvented.Walsh, 221 F.3d at 218 (citations omitted).

The First Circuit has also cautioned that "[t]he Article 13(b) defensemay not be used `as a vehicle to litigate (or relitigate) the child'sbest interests.'" Danaipour, 286 F.3d at 14 (citation omitted). Thus, indetermining whether the petition for return ought to be granted, the taskis notPage 9simply to determine where the child would be happiest or who would be thebetter parent. Walsh, 221 F.3d at 218; see also Friedrich v. Friedrich,78 F.3d 1060, 1068 (6th Cir. 1996). The Convention is designed to ensurethat those and other issues underlying the custody dispute arepresumptively to be adjudicated in the place of the child's habitualresidence.

Further, a grave risk of harm is not "established by the mere fact thatremoval would unsettle the children who have now settled in the UnitedStates. That is an inevitable consequence of removal." Walsh,221 F.3d at 220 n. 14. "A removing parent must not be allowed to abduct achild and then — when brought to court — complain that the child hasgrown used to the surroundings to which they were abducted. Under thelogic of the Convention, it is the abduction that causes the pangs ofsubsequent return." Friedrich, 78 F.3d at 1068 (footnote omitted).

Applying those principles and considering all the circumstances of thiscase, I am not persuaded to the degree required that the children will beexposed to a grave risk of physical or psychological harm, or a situationthat is otherwise "intolerable," if returned to Northern Ireland.

Prior to trial, I appointed a guardian ad litem, Dr. Sharon Gordetsky,a clinical psychologist with a specialty in children and families, toassess the risk of physical or psychological harm if the children were tobe returned to Northern Ireland, and also to assess their degree ofmaturity and to determine the wishes of the children with respect totheir being returned to Northern Ireland. Dr. Gordetsky prepared acomprehensive report and testified at trial.4

The children had described to Dr. Gordetsky (as they had previously toa social worker in the probate court) that Dympna drank to excess on aregular basis, and that her drinking contributed to the bleak environmentat the home in Northern Ireland. The children gave similar testimony inthePage 10trial. Dympna sometimes physically disciplined the children, and shesolicited the assistance of her brother and a neighbor to physicallydiscipline the children. There were two incidents described in thetestimony that involved physical or violent discipline. In one incident,Dympna's brother Liam was said to have broken through a locked bathroomdoor and forcibly removed Daniel, striking him as he did so. In theother, the friend, Graham, was said to have slapped Sean on the head withthe palm of his hand. There was no testimony about specific instances ofphysical violence directed at either Stephanie or Peter Óg. There was alsogeneral testimony about Dympna's striking the children and throwinghousehold objects, but no specific instances were described. It is clearfrom the evidence that the children had grown troubled and fearful fromthe chaotic conditions and physical discipline to which they weresubjected.

Dr. Gordetsky ultimately concluded in her written report that thechildren "were frequently exposed to situations that put them at seriousrisk for current and future psychological harm. Further, the childrenpresented credible narratives that from a child's mental healthperspective would constitute an intolerable situation." In reaching thoseconclusions, Dr. Gordetsky noted that the children had endured physicalaltercations with their mother, her brother, and her friend and that thehome had deteriorated to a state of physical and emotional dysfunctionand chaos. The relationship between Dympna and the children had becomequite strained and has deteriorated further since they have been in theUnited States. Dr. Gordetsky testified that if returned to NorthernIreland the children would likely experience depression, anger, anxiety,shame, and betrayal.

I find that the children have been subjected to physical discipline andpsychological distress while in their mother's care in Northern Ireland. Ialso find that, regardless of whether they stay in Massachusetts orreturn to Northern Ireland, they will likely continue to suffer somedegree ofPage 11psychological harm as a result of their parents' marital and parentingproblems. I do not doubt Dr. Gordetsky's prognosis of continuingdisruption and some level of consequent psychological harm if they wereto be returned to Northern Ireland, especially in light of their ownobjections. See infra pp. 12-15. The harm they have suffered and likelywill suffer is not to be minimized and can certainly be characterized as"serious." However, in this circuit, at least, a "serious" risk of harm,short of a "grave" risk, does not rise to the level of prospective harmthat the Article 13(b) exception recognizes as a reason for not returninga wrongfully removed or retained child. See Danaipour, 286 F.3d at 14.

Cases that have approved invocation of the Article 13(b) exception havefocused on evidence of a sustained pattern of physical abuse and/or apropensity for violent abuse. See, e.g., Walsh, 221 F.3d at 219-220(finding grave risk of harm where petitioner had severely beaten his wifeover a number of years, including while she was pregnant, many of thebeatings took place in front of her small children, and petitioner had ahistory of other violent activity and of chronic disobedience of courtorders); see also Danaipour v. McLarey, 386 F.3d 289 (1st Cir. 2004)(affirming district court finding of grave risk of psychological harmwhere petitioner had sexually abused one of the two children whose returnwas sought). Evidence of real but sporadic or isolated incidents ofphysical abuse, or of some limited incidents aimed at persons other thanthe child at issue, have not been found sufficient to support applicationof the "grave risk" exception. See Whallon, 230 F.3d at 460 (finding thatallegations of physical and verbal abuse did not rise to the level neededto satisfy the Article 13(b) exception and stating that "[t]o concludeotherwise would risk substituting a best interest of the childPage 12analysis for the analysis the Convention requires"). Guided by theseprinciples, I conclude that the respondent has not established theexistence of a "grave risk" by clear and convincing evidence.5

2. The children object

Peter also argues that I should take account of the children's ownmaturely formed objections to being returned to Northern Ireland anddecline to order their return. In their trial testimony, each childexpressed an objection to being returned to Northern Ireland. Duringtheir testimony, I observed the children to be intelligent, mature, andarticulate. They displayed an appropriate understanding of andappreciation for the issues presented in this matter and effectivelycommunicated their experiences and feelings concerning those issues.Among other reasons, the children testified that they do not respecttheir mother, she drinks too much, she fights with and hits them, and shehad her brother and neighbor come to the house to discipline them. Incontrast, the children testified that they preferred to remain inMassachusetts with their father because they have more respect for him,he does not drink, and he does not hit them. Generally, since July 2003,the children have become settled again at school and at home inMassachusetts, and they wish to remain in that environment. Theirtestimony appeared to represent their genuine thoughts and feelings;neither I nor Dr. Gordetsky (according to her) found indications thattheir testimony had been coached or otherwise unduly influenced by theirfather.Page 13

Dr. Gordetsky described in her report and testified at trial that shefound each child to be cognitively and emotionally mature. She separatelyaddressed for each child both the child's level of maturity and thesubstance of the child's objection to returning to Northern Ireland. Sheindicated that each child was capable of independent thought and was ableto appropriately and effectively communicate his or her emotions anddesires. Further, she found that each child demonstrated an appropriateappreciation for the implications of his or her expressed desire to remainin the United States, including a certain amount of ambivalence about thedecision and its implications. She regarded the ambivalence as a sign ofmaturity, indicating an ability to weigh both sides of a question and anappreciation that decisions are not always "black-and-white."

With respect to Daniel and Sean, both 14, the judgment whether, underArticle 13, to respect their objections is relatively easy. TheConvention only applies to children who are under 16 years old,Convention, art. 4, T.I.A.S. No 11,670, at 5, and the authoritativecommentary to the Convention suggests that children who are nearing 16years should ordinarily have their own wishes respected. ElisaPérez-Vera, Explanatory Report on the 1980 Child Abduction Convention,¶ 30, at 433, in 3 Hague Conference on Private Int'l Law, Acts andDocuments of the Fourteenth Session (1980), available at"[T]he fact must be acknowledged that it would be very difficult toaccept that a child of, for example, fifteen years of age, should bereturned against its will."). The application of the exception is notautomatic either for 15-year-olds or, as here, 14-year-olds, but it canbe applied with more confidence the older the child. I have no troubleconcluding, based on the evidence and my direct observations, that Danieland Sean have attained an age and maturity such that their views ought tobe taken intoPage 14account. In my judgment, their objections to being returned to Ireland isthoughtfully and not reflexively reached and ought to be honored.

The decision regarding the objections of the younger two children,Stephanie and Peter Óg, is not as easy. Nevertheless, I placeconsiderable reliance on Dr. Gordetsky's professional clinical assessmentof them. Although recognizing that Stephanie and Peter Óg were not asmature as their older brothers, she nonetheless concluded that they wereable to understand and appreciate the circumstances of the controversyconcerning where they should reside and were similarly able to form andexpress a thoughtful opinion deserving of respect.

Additionally, Dr. Gordetsky noted that the four children were veryclose, in part having been pushed to band together by conditions in thehome in Northern Ireland. With respect to Stephanie and Peter Óg, Dr.Gordetsky expressed the opinion that they would suffer some level ofpsychological harm if returned to Northern Ireland under anycircumstances, and this would undoubtedly be exacerbated if they wereordered returned without Daniel and Sean. Thus, while the case forrespecting the objections voiced by Stephanie and Peter Óg is not quiteas strong as it is for Daniel and Sean, the additional factor of thepsychological harm that the younger two would likely suffer if thechildren were separated gives support for the conclusion that they alsoshould have their objections to return honored.

In the end, there are three possible choices: (1) return all thechildren to Northern Ireland, notwithstanding the validity of Daniel'sand Sean's Article 13 objections; (2) honor Daniel's and Sean'sobjections and decline to order their return, but split the family andreturn the younger two whose objections may be somewhat less compelling;or (3) return none of the children, giving effect to Daniel's and Sean'sobjections and honoring Stephanie's and Peter Óg's objections as well onthePage 15basis of the combined assessment of the soundness of the objections andthe prospect of harm from their return without their older siblings. Thelast of these seems the most satisfactory as the best accommodation ofthe various factors to be taken account of under the Convention.

It may be objected that this is simply a "best interests of the child"analysis masquerading as a "mature child's objection" analysis. Theanswer to that objection is that while the former is forbidden inproceedings under the Convention, the latter is invited. The Conventionclearly contemplates that the objections of a mature child should betaken account of and can be relied on to override the return that wouldotherwise be mandated. Obviously, there may be some overlap between thetwo inquiries. One can easily appreciate that giving effect to the matureobjection may in any given case also be thought to be in the child's bestinterest. But that coincidence surely should not defeat application ofthe Article 13 "objection" exception. It would be absurd to conclude thatthe child's mature objection should be honored unless it is in thechild's best interest.

Congress has added to the Convention's endorsement of the exception thecodicil that the factual predicate for finding that a mature objectionhas been made need only be established by the customary civil actionstandard of a preponderance of the evidence. In contrast to the otherexception argued for in this case, the prospect of a "grave risk" ofphysical or psychological harm to the child if returned, establishing the"objection" exception to return is not subject to a stringent burden ofproof, and thus a court may more readily find a valid objection than itcould find the existence of a grave risk. This difference in stringencyof examination is expressly mandated by ICARA, 42 U.S.C. § 11603(e)(2).From this I conclude that the "objection" exception to a summary order ofreturn is meant, both by the drafters and signers of the Convention andby Congress, to be used. Here, I find the conditions for its usesatisfied.Page 16

III. Conclusion

Though Peter's retention of the children was wrongful under theConvention, I exercise the discretion granted by Article 13 of theConvention to refuse Dympna's petition for the return of the children toNorthern Ireland.6


1. The parties' son Peter is often referred to by family members,particularly by his mother, as Peter Óg (Irish for "young Peter") todistinguish him from his father. For clarity, I will follow thatconvention here. "Peter" refers to the father, "Peter Óg" to the son.

2. The First Circuit has favorably cited this formulation in anunpublished, non-precedential decision. See Zucker v. Andrews, 181 F.3d 81(1st Cir. 1999) (unpublished table decision).

3. Peter's post-retention application for a custody decree from theMassachusetts probate court is immaterial to a proper consideration,pursuant to the Convention, of the wrongfulness of the retention. SeeWhallon, 230 F.3d at 459 ("The pending Massachusetts custody proceedingscommenced by [the respondent] after her removal of [the child] areinapplicable to this action because the Convention refers specifically to[the petitioner's] rights of custody at `the time of removal.'")(citation omitted).

4. Dr. Gordetsky's was the only expert evidence offered at trial.

5. Dympna testified at trial that Peter struck her on two occasions.Peter denied the allegations. Even assuming that Dympna's version ofevents is the correct one, it would not change the conclusion I reach inthe following section. Peter's alleged violence appears isolated andremote in time, and importantly, was allegedly directed at Dympna and notthe children who are the subject of the petition for return. The extentand target of the alleged violence is comparable to that described inWhallon, 230 F.3d at 460, and distinguishable from the pattern of severeviolence described in Walsh, 221 F.3d at 209-212.

6. This order resolves only those issues arising under theConvention; any issues of family law and rights of custody may beresolved in a court of proper jurisdiction in the appropriate venue.

Back to top