Danaipour v. McLarey

386 F.3d 289 (2004)

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Danaipour v. McLarey

United States Court of Appeals for the First Circuit
386 F.3d 289 (2004)

  • Written by Elizabeth Yingling, JD

Facts

Kristina McLarey (defendant) took her young daughters, A.D. and C.D., from their country of habitual residence, Sweden, in violation of a Swedish court order obtained by her estranged husband, Iraj Danaipour (plaintiff). Danaipour sued in state court for the return of his daughters to Sweden pursuant to the International Child Abduction Remedies Act and the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). McLarey opposed removal, relying on the Article 13(b) exception in the Hague Convention, which permitted the court to decline to return children because of a grave risk of physical or psychological harm. McLarey claimed that Danaipour had sexually abused the two children. Upon removal, the federal court ordered the return of the children to Sweden so that a Swedish court could determine whether the children had been sexually abused. On the first appeal (Danaipour I), the United States Court of Appeals for the First Circuit reversed and remanded the case, instructing the district court to determine whether sexual abuse occurred and whether the children would be at a grave risk if returned. In Danaipour I, the court gave weight to the U.S. State Department’s policy that, if a grave risk was found, refusal to return a child was more appropriate than entering extensive undertakings, which would dilute the Article 13(b) exception. On remand, the district court, relying on expert opinions, found clear and convincing evidence that Danaipour had sexually abused the younger child, C.D. The court also found that returning C.D. and A.D. to Sweden would place them at grave risk of psychological harm and that no court could prevent or remedy that risk if the children were returned. Danaipour appealed, arguing that the evidence failed to support a finding of grave risk because a Swedish court could evaluate whether sexual abuse had occurred and impose protections for the children.

Rule of Law

Issue

Holding and Reasoning (Lynch, J.)

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