Advocates Say Children Put At Risk
But see hope in ruling on foreign custody fight
By Thanassis Cambanis, Globe Staff
Originally published in the Boston Globe, April 16, 2002
Kristina McLarey refused to believe what a federal judge told her on Jan. 2: She would have to send her children back to Sweden, far from home, even as a Swedish court considered allegations that her former husband sexually abused their 2- and 6-year-old daughters.
That decision, reversed this month by the US Court of Appeals for the First Circuit, reflects what child advocates call a disturbing trend in international custody battles. They say the law ignores the potential for serious harm to children, sending them back to foreign countries whose courts technically have jurisdiction in custody decisions but which often have different, sometimes unacceptable, standards for assessing child abuse.
Parents in situations like McLarey's have fought in family courts around the world, sought help from psychologists and abuse specialists, and have even kidnapped their own children. McLarey's defense team sees a simpler solution: a legal standard that would protect the rights of children in international custody cases, rather than leaving them at the mercy of an international treaty.
"The fact is, children are not furniture; you can't shuttle them back and forth across the ocean and not have them affected," said Beth Boland, McLarey's lead attorney.
She and a team of lawyers contend that the Hague Convention on Civil Aspects of International Child Abduction, which governs international custody disputes, places too much emphasis on sending children to the country where the divorce or custody proceedings began. The convention seeks to prevent parents from taking children abroad unless they face "a grave risk of physical or psychological harm."
In last month's decision in the McLarey case, children's advocates see evidence that US courts will reinterpret the Hague Convention in favor of children fleeing alleged domestic violence.
In that decision, an appeals court panel ordered US District Judge Mark L. Wolf to give more weight to evidence that McLarey's children were abused and reconsider his ruling.
"This decision makes clear that the Hague Convention does consider the children's best interest to be of paramount interest," Boland said. Under the ruling, judges won't be able to send children to foreign countries under conditions that an American court can't enforce.
Since 1995, US courts have handled 2,688 Hague Convention cases, and state and federal courts in Massachusetts have handled 58 cases. The numbers are rising.
Activists such as former federal prosecutor Barry S. Pollack say fewer than a dozen Hague Convention cases have been appealed in the First Circuit since the treaty took effect in 1986, with most coming within the last few years.
Three recent Massachusetts cases, including McLarey's, highlight the need for treaty reform, activists say, and have provided the momentum that Pollack and other advocates contend is coming to fruition.
In one case, Malden mother Jacqueline Walsh was ordered in 1998 to return her children to Ireland, near her estranged husband, who had allegedly beaten her savagely and was on the run from an arrest warrant stemming from an altercation with a neighbor when he was living in Massachusetts.
Diana Lynn, originally from Texas but now of Martha's Vineyard, is home-schooling her daughter Micheli in Mexico and living with bodyguards after the lawyer of the child's father sent gunmen after her.
A US judge has ordered Lynn and her 7-year-old daughter to stay in Los Cabos, Mexico, until Mexican courts resolve a custody dispute between her and Micheli's father—even though both parents are American citizens and the father, Richard Whallon Jr., has been deported from Mexico. Lynn lost her appeal to the First Circuit two years ago.
Lawyers who handle Hague cases involving alleged sexual abuse and violence—and their clients' families—say proceedings before federal judges unaccustomed to dealing with sensitive questions of family law and child abuse often take too long and rely more on legal precedent than on human interests.
"The main thing is, we want the children to be safe," said Myra McLarey, Kristina's mother. "It needs to be over for these little girls. They need to not be put through it again."
Advocates in the United States and Europe say the Hague Convention, drafted in 1980 to deal with parents taking children from their legal custodian, is seriously flawed.
"In recent years, we've seen a change, where more and more the primary caretaker is taking the children, usually to flee a hostile or abusive environment," said Anne Hennon, former director of the Irish Center for Parentally Abducted Children and a European Union official. "There is nothing in the Hague Convention to protect people in that situation."
At a meeting in the Hague last year, lawyers who deal with parental kidnapping cases discussed amendments to the convention that would make it easier for parents fleeing violence. But with 71 signatory nations, "Changing the Hague Convention would be a very cumbersome process," Hennon said.
Part of the answer, said Pollack, who also represents the McLarey children, lies in the United Nations Convention on the Rights of the Child. President Clinton signed that treaty in 1995, but it has languished in Congress, largely because of opposition from figures like Senator Jesse Helms, the North Carolina Republican.
Only Somalia and the United States have refused to ratify the treaty. If Congress does ratify it, Pollack said, parents would have solid legal footing in US courts to defend moving children away from abusive parents.
Pollack also said he sees hope in the First Circuit's willingness to overturn the lower courts. In McLarey's case, the appeals court rejected Wolf's ruling largely because of what it saw as extensive evidence that at least one of McLarey's daughters had been sexually abused. Expert witnesses and psychologists testified that the 2-year-old daughter may have masturbated the father, Iraj Danaipour—evidence that the court considered sufficient to order a forensic investigation.
The appeals panel was not convinced that Swedish authorities would thoroughly examine the abuse allegations.
Boland faces a new trial, but said she feels more comfortable with the First Circuit ruling in hand.
"The protection of the child must remain paramount," Appeals Court Judge Sandra Lynch wrote for the court, the third time she has written a ruling on a Hague Convention case.
Pollack hopes to take a Hague case to the US Supreme Court and win a similar ruling. "Sending kids back to countries where there has been abuse is a mistake," Pollack said. "Until now, there has been too much emphasis on sending the children back in order to make sure we get cooperation from other countries in kidnapping cases."
Lynn said it is absurd that a custody battle involving three Americans remains mired in Mexican courts. "If this had been tried in the US, this could have been over a long time ago, and my daughter and I could be living a healthy and normal life," Lynn said in an interview from her home in Mexico.
Micheli misses her older sister, ice skating, and contact with other children, Lynn said. Because of repeated threats, Lynn doesn't leave the house without security guards.
"It's been isolating," she said. "Every time I go out, I feel at risk. I don't know how I'll be able to exhale until I'm out of here."
