Child Abduction

• Author: International Law Group

Kristina McLarey is a dual citizen of Sweden and the U.S. She married Iraj Danaipour, a child psychologist originally from Iran with Swedish citizenship. They had two daughters, born in Sweden in 1994 and 1998. The marriage began to fall apart while McLarey and Danaipour were living together in Stockholm. McLarey found her husband abusive and suspected that he had improper sexual contact with the daughters. A Swedish court first awarded Danaipour custody of the children, but later granted joint custody with weekly alternation. Swedish police investigated the allegations of sexual abuse but never charged Danaipour.

In June 2001, McLarey and her children came to the U.S. in violation of the Swedish court order. A clinical psychologist interviewed the children and found indications of sexual abuse. A few months later, Danaipour sued McLarey in Massachusetts state court seeking the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction (Oct. 25, 1980, T.I.A.S. 11,670, 1343 U.N.T.S. 89). Defendant removed the case to federal district court.

McLarey raised three defenses: (1) that "there is a grave risk that ... return would expose children to physical or psychological harm or otherwise place the children in an intolerable situation" (Article 13(b) of the Convention); (2) that return would contravene "fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms" (Article 20); and (3) that the children object to being returned, having 'attained an age and degree of maturity at which it is appropriate to take account of [their] views" (Article 13).

The district court appointed a guardian ad litem (GAL) and held hearings on how to ascertain whether sexual abuse had taken place. The district court denied McLarey's motion to have a sexual abuse evaluation done in the U.S., and ordered her to return with the children to Sweden, subject to several conditions. For one thing, the district court required that the children live with McLarey unless...