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In Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), the
husband who had earlier absconded to his native Ireland after being
charged with criminal offenses in the United States petitioned for
return of the children after they were taken to United States by his
estranged wife. The District Court granted the petition, and after
allowing the wife's sister to intervene on behalf of the children,
denied a motion to dismiss on basis of the fugitive disentitlement
doctrine. The Court of Appeals held that: the sister's intervention was
properly limited to the issue of applicability of the the fugitive
disentitlement doctrine; the doctrine did not bar the husband from
bringing his petition and grant of a stay pending appeal was proper. The
wife made a showing that the return of the children to Ireland would
expose them to a grave risk of physical or psychological harm, as would
bar their return under the Hague Convention. Under the "fugitive
disentitlement doctrine," courts will generally dismiss the civil or
criminal appeal of a fugitive who is still on the lam. The doctrine does
not allow a court in a civil forfeiture suit to enter judgment against a
claimant because he is a fugitive from, or otherwise is resisting, a
related criminal prosecution. The dismissal of a civil action pursuant
to fugitive disentitlement doctrine requires that the plaintiff is a
fugitive, his fugitive status has a connection to his civil action, and
the sanction of dismissal is necessary to effectuate the concerns
underlying doctrine, which include prejudice to the opponent, delay,
frustration, and unenforceability. While the husband was a fugitive, and
there was arguably some connection between his fugitive status and his
petition, practical considerations did not warrant application of
doctrine, which would impose too severe a restriction on the husband's
attempt to enforce his parental rights. The wife who had wrongfully
brought children to United States from their habitual residence in
Ireland showed by clear and convincing evidence that children faced a
grave risk of exposure to physical or psychological harm if they were
returned to her husband in Ireland. The husband had a long history of
spousal abuse, and of fights with and threats against persons other than
his wife, including fight with one of his adult sons, and had shown a
chronic disobedience of court orders. Undertakings by the husband, or
even a potential barring order by an Irish court, were not sufficient to
mitigate the grave risk that the children would be exposed to physical
or psychological harm if they were returned, and thus did not allow the
return of the children. The husband had repeatedly violated court orders
in both the United States and Ireland, and there was every reason to
believe that he would violate undertakings, and any future orders of
Irish courts.
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