221 F.3d 204 (1st Cir. 2000), 99-1747, Walsh v Walsh

Docket Nº:99-1747, No. 99-1878.
Citation:221 F.3d 204
Party Name:JOHN WALSH, PETITIONER, APPELLEE, V. JACQUELINE WALSH, RESPONDENT, APPELLANT, AND MARTHA MILLER, INTERVENOR, APPELLANT. JOHN WALSH, PETITIONER, APPELLANT, V. JACQUELINE WALSH, RESPONDENT, APPELLEE, AND MARTHA MILLER, INTERVENOR, APPELLEE.
Case Date:July 25, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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221 F.3d 204 (1st Cir. 2000)

JOHN WALSH, PETITIONER, APPELLEE,

V.

JACQUELINE WALSH, RESPONDENT, APPELLANT,

AND

MARTHA MILLER, INTERVENOR, APPELLANT.

JOHN WALSH, PETITIONER, APPELLANT,

V.

JACQUELINE WALSH, RESPONDENT, APPELLEE,

AND

MARTHA MILLER, INTERVENOR, APPELLEE.

No. 99-1747, No. 99-1878.

United States Court of Appeals, First Circuit

July 25, 2000

Heard June 6, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.

Hon. William G. Young, U.S. District Judge.

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Barry S. Pollack, with whom Bernard J. Bonn III and Dechert Price & Rhoads were on brief, for appellant Martha Miller.

Robert Najarian for appellant Jacqueline Walsh.

E. Chouteau Merrill, with whom Amanda Buck Varella and Brown Rudnick Freed & Gesmer were on brief, for appellee.

Susan M. Basham, Colleen Brunnick McElhinney, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. for amici curiae National Network to End Domestic Violence, National Network to End Domestic Violence Fund, Massachusetts Citizens for Children, Massachusetts Society for the Prevention of Cruelty to Children, and Women Against Abuse, Inc.

Before Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge.

Lynch, Circuit Judge.

From Ireland, John Walsh petitions for the return of his two children, "M.W." and "E.W.,"1 to that country, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. See Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (1980) (Hague Convention). His estranged wife, Jacqueline Walsh, now living with the children in Massachusetts, says that John's petition should be denied and the children should not be sent back to Ireland because: 1) John is precluded from petitioning the district court under the fugitive disentitlement doctrine; and 2) the Hague Convention does not require children to be returned to their country of habitual residence when there is a "grave risk" that they will be exposed to "physical or psychological harm" or an "intolerable situation." Hague Convention, art. 13(b).

The district court rejected both of Jacqueline's contentions and granted John's petition, provided he agreed to certain important undertakings pertaining to the safe return of the children. See In re Walsh, 53 F.Supp.2d 91 (D. Mass. 1999) (Walsh II); In re Walsh, 31 F.Supp.2d 200

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(D. Mass. 1998) (Walsh I). Jacqueline and Martha Miller, Jacqueline's sister and a belated intervenor on behalf of the children, appeal.2 We affirm in part and reverse in part, and we remand with instructions to dismiss the petition.

I.

John, an Irish national, and Jacqueline, a U.S. national, met at an Irish pub in Malden, Massachusetts, in June 1988. On August 24, 1989, a daughter, M.W., was born to them in Massachusetts. On May 3, 1992, John and Jacqueline were married in New York State. They lived in Malden during these years, though John spent a good part of his time in Ireland until M.W. was about two years old in 1991.

The events of the following five years evidence John's violent behavior toward his wife and others. In August 1992, John beat Jacqueline after he became enraged that he was not asked to be a pallbearer at Jacqueline's aunt's funeral. On December 31, 1992, after a New Year's Eve party, John abused Jacqueline again.

On October 31, 1993, a wake was held for a neighborhood child in Malden who had apparently died of a drug overdose. John took the death badly and drank heavily at a pub following the wake. Upon returning home, he became enraged at a young man, who lived in the house next door, because John thought that the man had provided the dead child with drugs. John ran next door, banged on the door, breaking the door's glass, and yelled that he was going to kill the man. He did this repeatedly until the police arrived, at which point he was handcuffed and arrested. On November 1, 1993, a two-count criminal complaint was filed against John in the Malden District Court, which charged him with: 1) attempting to break and enter, in violation of Mass. Gen. Laws ch. 274, § 6; and 2) threatening to kill another person, in violation of Mass. Gen. Laws ch. 275, § 2.

John was arraigned, but not tried, as he absconded to Ireland on January 11, 1994. See Walsh II, 53 F.Supp.2d at 92. A default warrant exists for his arrest.3 Michael Walsh, his twenty-year-old son from a previous relationship who had been living with John and Jacqueline in Malden since they were married, returned to Ireland with him.

On March 31, 1994, Jacqueline and M.W. followed John to Ireland. Jacqueline was pregnant at the time. The family first lived in Waterford City and later moved to the nearby town of Tramore. As the district court found, Jacqueline was the "victim of random beatings." Walsh I, 31 F.Supp.2d at 202.

On June 23, 1994, Jacqueline went to see Dr. Anne Marie Burke, her Irish physician, for her pregnancy. She was seven months pregnant at the time. Dr. Burke noticed that Jacqueline was losing weight and was concerned about bruises she noticed on Jacqueline's body. The day before John had beaten Jacqueline and had only stopped when Andrea Walsh, John's fourteen-year-old daughter from a previous marriage, intervened. A son, E.W., was born soon thereafter, on August 25, 1994.

On October 11, 1996, Jacqueline saw Dr. Burke again. Jacqueline said she had been assaulted by John the previous day. Her face, chest, and knees all were swollen and bruised, her arms were marked by hard gripping, and she had suffered a broken tooth. Dr. Burke advised her to seek protection and to get a barring order from

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a court, which would "establish and govern the rights of each spouse to be in the presence of the other and to have access to their children." Id. at 203. She also advised Jacqueline to get photographs taken of herself at Phelan's Pharmacy, which Jacqueline did that same day. The photographs show bad cuts and bruises on her face.

In December of 1996, John pushed Jacqueline down so that she hurt her coccyx bone in her lower spine. Soon thereafter, Paul Walsh, another of John's sons from a previous relationship, invited Jacqueline over to his house, which was across the street, for coffee. He asked Jacqueline about her bruises. She told him that John had beaten her. Angry with his father, Paul called the police. The police arrived and John denied beating Jacqueline. Jacqueline was frightened and declined to press charges. She decided to stay in the house because Michael Walsh (who had been thrown out of the house by his father) said he would stay there and protect her.

On May 24, 1997, the night before M.W.'s communion, John, Michael, and Jacqueline's sister Martha, who had come to Ireland for the event, went out to a number of local pubs. On the way home, where Jacqueline and the children were asleep, John attacked Michael, fists flying, simply because Michael had broken a beer bottle. This was not their first fight, or their last. Indeed, they immediately fought again when they arrived back at the house. When all was over, both John and Michael were bleeding and the room was splattered with blood. John hauled his daughter M.W. down to the bloodied room where her half-brother was and told her to look at her bloodied half-brother and to tell him to leave. M.W. was very frightened -- she was about eight years old at the time. Jacqueline intervened and took M.W. back to her room and then Jacqueline went to her own bedroom. John followed Jacqueline in and hit her with an open hand about the head, causing a swollen and bloodied ear. The next day, John refused to go to the communion because it was obvious he had been in a fight.

The day after the communion, May 26, 1997, John again assaulted Jacqueline and she fled the house, without the children. He had repeatedly punched her in the head and kicked her. Fearing for her life, Jacqueline went to her friend Anne Phelan's pharmacy. Phelan's daughter took Jacqueline to the police station, where the police told her that domestic abuse was not uncommon in Tramore, and that she should seek help at the legal aid office in Waterford City, the county seat. Jacqueline filed a report and, accompanied by the police, she returned to the house for her things, only to find John throwing her bags into the street.

The next day, May 27, 1997, Jacqueline saw Dr. Burke. The doctor noted extensive bruises and scratch marks and concluded that Jacqueline's life and health were at risk. A few days later, on May 30, 1997, Jacqueline sought a "protection order," similar to an American temporary restraining order. One was issued that same day by the Waterford District Court. The order required that John "not use or threaten to use violence against, molest or put in fear" Jacqueline and that he "not watch or beset the place where [she]... resides." By the same order, a July 25th date was set for a hearing on the issuance of a "barring order."

For the first few weeks after she had fled her home, Jacqueline stayed at Paul's house. It was during this period that Jacqueline began a relationship with another man, Michael Murphy.

On July 15, 1997, John assaulted Jacqueline despite the clear terms of the protective order. On July 25th, at the first court date on the barring order, John agreed that he would vacate their house and let Jacqueline and the children stay there.

The application for a barring order was adjourned several times to November 28, 1997, "on the undertaking of Mrs. Walsh

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not to take the children out of the jurisdiction and on Mr. Walsh's undertaking to stay away from the family home." On September 26, 1997, and again a few weeks later in October, the house in which...

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