In re Walsh, Civ.A. 98-11638-WGY.

• Citation: 31 F.Supp.2d 200
• Decision Date: 18 December 1998
• Docket Number: No. Civ.A. 98-11638-WGY.,Civ.A. 98-11638-WGY.
• Parties: In re the Application of John WALSH.
• Court: U.S. District Court — District of Massachusetts

31 F.Supp.2d 200

In re the Application of John WALSH.

No. Civ.A. 98-11638-WGY.

United States District Court, D. Massachusetts.

December 18, 1998.

E. Chouteau Merrill, Brown, Rudnick, Freed & Gesmer, Boston, MA, for John Walsh, plaintiff.

Thomas J. Barbar, Anne Marie Corraro, Cambridge, MA, for Jaqueline Walsh, defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

YOUNG, District Judge.

This sad case is a gritty refutation of the folk wisdom that marriages are made in heaven and Pliny's observation that "children are conceived by moonbeams."

John and Jacqueline ("Jackie") Walsh live in Ireland. John physically abuses Jackie. She drinks to excess and eventually takes up with another man. Each exaggerates the conduct of the other. The children — there are two, Mary Kate, 9, and Eoghain, 4 — suffer. Eventually, Jackie flees from Ireland to the United States with her lover and her two children.

Her flight with the children gives rise to this litigation. The case arises under the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"), as implemented in the International Child Abduction Remedies Act ("the Act"), 42 U.S.C. §§ 11601-11610 (1998). Pursuant to the Convention, John seeks the return of Mary Kate and Eoghain to Ireland. Both the United States and Ireland are signatories to the Convention, which establishes procedures for the prompt return of minors wrongfully removed from their State of habitual residence. See Convention, Art. 1. Under the Convention and its implementing legislation, the burden rests on the petitioner to show by a preponderance of the evidence that the removal was wrongful. See 42 U.S.C. § 11603(e)(1)(A). If the petitioner meets this burden, the respondent may oppose the return of the children by establishing that any of a number of narrowly drawn exceptions applies.

In this case, Jackie does not dispute that John has met his prima facie burden, but relies exclusively on an exception providing that a child need not be returned when "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Convention, Art. 13b. The burden now rests on Jackie to establish the applicability of that exception by clear and convincing evidence. See 42 U.S.C. § 11603(e)(2)(A).

FINDINGS OF FACT

These are the facts. Jackie grew up in Malden, Massachusetts. She met John in a pub in Ireland in 1988 and they lived together off and on, John spending most of his time in Ireland and England and Jackie spending most of hers in Malden. Their first child, Mary Kate, was born in Boston on August 24, 1989. The couple married in May, 1992. It was his second marriage, her first.

Marital vows added no stability to this union. Incidents of physical abuse commenced within months. Jackie's aunt died on August 17, 1992. John expected to be asked to be a pallbearer and, when not invited, he shouted and screamed at Jackie, struck her several times, and squeezed her hand so hard that her thumb was swollen.

The following New Year's Eve, a drunken John subjected Jackie to severe verbal abuse. Ten months later, after imbibing a number of brandies, John became obsessed with the idea that a young neighbor next door had dealt the drugs that caused the death of another Malden youth from an overdose. Raging "I'll kill you," John began smashing on the neighbor's door until Malden police restrained and arrested him.

Facing a court appearance in the Malden District Court to answer charges of assault with intent to murder, John fled to Ireland in January, 1994. He dare not return, as a default warrant for his arrest has issued. Pregnant with their second child, Jackie followed. Despite her condition, John's physical abuse continued sporadically. In June, 1994, Jackie, then seven months pregnant, admitted to her gynecologist, Dr. Ann Marie Burke, that certain bruises she bore were the result of spousal abuse. Dr. Burke recommended that she document the abuse and seek legal help. Eoghain was born on August 25, 1994 in Waterford, Ireland.

As the victim of random beatings and the mother of two small children in a loveless marriage, Jackie felt increasingly alone and isolated in Tramore, a small town outside Waterford. One activity she shared with her husband was visiting the local pub. Like him, she sometimes drank to excess, sometimes becoming falling-down drunk.

In October, 1996, Jackie participated in a "pub quiz" concerning Irish sports. Afterwards, walking home, John ridiculed her and fell to punching her, kicking her prostrate body when she fell. Jackie went to a pharmacist, Ann Phelan, the following day and had herself photographed. The Court has reviewed the photos. They are inconclusive. They show cuts and short lacerations consistent with falling¹ or being knocked to the ground.

Jackie returned to Malden without the children in December, 1996, to spend the Christmas holidays with her father, paying for the trip with money her father had sent her. The night before she left, John pushed her so hard that she fell and hurt her coccyx thus spending the entire trip in significant pain.

What of the children during these years? As is inevitable in these tragic cases, they were constantly exposed to their parents' acrimony and occasionally observed John's physical abuse of their mother as well. Mary Kate once fled the home when John was beating Jackie. Though sometimes inattentive, Jackie has never struck her children. John, however, is "strict" with the children, once spanked Eoghain and sent him to his room after finding him in the cookie jar, occasionally slapped Mary Kate across the back of her legs for various infractions, and once called her "stupid" and spit on her for having mud on her shoes.

Whatever hope there may have been for saving this marriage collapsed in May, 1997, at the time of Mary Kate's first communion. Jackie's sister Martha journeyed to Ireland for the event. Leaving the children with John, Jackie met Martha at the Dublin airport on May 16th. Martha had never before visited Ireland and the two traveled leisurely south to Tramore, celebrating Jackie's birthday on the 16th and arriving home on May 17th. During this leg of the trip, Jackie revealed John's physical abuse to Martha, who strongly urged her to leave John, advising her that John was a "bully" and would eventually hurt Mary Kate. Jackie and Martha then left together for a two or three day trip to Skibberene, spending a portion of the time with one Michael Murphy.

The communion service was scheduled for Sunday, May 24th. On Saturday evening, Jackie stayed home to prepare her daughter's dress and Martha, John, and Michael Walsh (John's eldest son by his first marriage —apparently an older teenager) went out to the pubs, enjoying Ireland's summer twilight. Michael Walsh broke a beer bottle. Saying, "I raised no son of mine to behave like that!," John attacked his son, fists flying. Michael stood up to his father briefly, but then fled. Martha and John (now bloodied) returned to the marital home. When Michael Walsh wandered in sometime later, the fight resumed. Martha testified she observed clots of blood from the fisticuffs on the fireplace hearth. Jackie and Mary Kate came downstairs and eventually the fighters subsided, mutually battered. Michael Walsh was sobbing and Mary Kate made efforts to console him. John said, "Mary Kate, take a look at your brother and tell him to leave; that you don't want him here." Jackie then interposed herself and pleaded with him to leave Mary Kate alone. John took Jackie upstairs and they fell to arguing and shouting. Jackie cowered on the bed as John circled it. He smacked her open-handed and when Martha called out "Are you all right?", Jackie replied "Yes."

Things, of course, were not "all right." Eventually, Martha slept in the bed with Jackie and John went elsewhere. The following day a battered John closeted himself alone, Michael Walsh apparently having given as good as he got, and the remainder of the family accompanied Mary Kate to her first communion.

This apparently was the last straw for Jackie. When next John raised his hand to her, she fled to the home of Paul Walsh, John's brother. When Michael Walsh arrived, crying, Paul called the police. Accompanied by the police, Jackie returned to the marital home to find John throwing her bags into the street. Jackie declined to press charges against John for assault, and the police recommended Jackie seek legal aid.

Supported by her legal aid lawyer, Aidan Lynch, Esq., Jackie obtained a Protective Order against John and negotiations commenced concerning who was going to live where and with whom. By July 13, John had agreed to vacate the marital home and Jackie had moved back in to rejoin the children. Jackie had also applied for a "barring order" —a longer-term order that would establish and govern the rights of each spouse to be in the presence of the other and to have access to their children. In so doing, Jackie submitted herself and the custody issues concerning the children to the courts of Ireland.

Driven out of the marital home by John, this period also saw Jackie take up a more or less open liaison with Michael Murphy.² While Michael Murphy did not live with Jackie, he was frequently at the home and their liaison was well known in the locality.

Not surprisingly, the absence of the constant tension and bickering between John and Jackie was beneficial to the children and they took readily to Michael Murphy. Jackie's new found companionship was not, however, an unmixed blessing. When she and Michael Murphy would go pub crawling, they would take the kids, who would often find themselves at a late hour sleeping in an out of the way corner of a hotel lobby or pub. This matter was of sufficient seriousness to come to the attention of Irish social service agencies who warned Jackie of her derelictions in this regard.

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