In the United States District Court s18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

_____ *

Plaintiff, * v. * NO: XXXX

_____ *

Defendant. *

* * * * * * * * * * * *

PLAINTIFF _____ TRIAL BRIEF

Plaintiff, _____ (_____), by his undersigned attorneys, pursuant to the Order of this

Court of December 4, 2001 (“Order”), files this Trial Brief and states as follows:

UNDERTAKINGS 1 AND SAFE-HARBOR ORDERS 2

The Order requires that the parties address their respective positions concerning whether there are any conditions on which the return to Sweden of A.D. and C.D. can properly be ordered. (Order at ¶ 3a.) _____ stipulates to the following undertakings and safe-harbor orders prior to the return of the children to their habitual residence of Sweden:

 Supervised visitation or no visitation pending judgment of court.

 Forensic Psychological Examinations for the parties and the children.

1 A promise, engagement, or stipulation. An engagement by one of the parties to a contract to the other, as distinguished from the mutual engagement of the parties to each other. It does not necessarily imply a consideration. In a somewhat special sense, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the court or the opposite party. A promise or security in any form. Blacks Law Dictionary, 6th edn., Nolan J.R. et al. (St. Paul, Minn., West Publishing Co. 1990) 2 As well as giving an undertaking to the foreign court, a U.S. applicant will often lodge a mirror order with a court in the State of the child’s habitual residence. The Hague Convention on International Child Abduction, 1st edn., Beaumont, P.R and McEleavy, P.E. (Oxford University Press, 1999) at 167. These orders represent a means for a petitioner to guarantee to his local court measures to ensure that neither the children, nor the abductor, are disadvantaged upon their return. Id. Thereby the problem of enforcement is overcome. Id.  No defamation action filed against _____ or her mother.

 No contempt or criminal proceeding pursued by _____.

 No enforcement of custody rights obtained after abductions.

 Reintegration program following forensic examinations.

 Consent orders entered in U.S.A and Sweden re the above.

 Such orders to contain contempt provisions upon breach.

The direct intervention of a court to ensure the short-term protection of a child when returned can be seen as a furtherance of the principle of non-exclusivity found in

Article 18 and Article 34 of the Convention. See Anton, ICLQ, 555. The court that requires the undertakings is not entering into the merits of a custody issue, which would be contrary to Article 16 and Article 19, because the protective measures will persist only until the court in the State of the child’s habitual residence is seized of the substantive custody hearing. See The Hague Convention on International Child Abduction, 1st edn.,

Beaumont, P.R and McEleavy, P.E. (Oxford University Press, 1999) at 161.

The concern of enforcement, inherent in simple undertakings, is overcome with the adoption of mirror undertakings in the foreign court through safe-harbor orders. With such mirror orders, the uncertainty of enforcement evaporates. Such a strict approach to undertakings is endorsed by the United States Department of State. See The Hague

Convention on the Civil Aspects of International Child Abduction—The Role of

Undertakings and their Recognition in the United States, August 1995.

In Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), the court held that the petitioner’s history of violating orders issued by any court, Irish or American, would suggest that no undertakings could protect the children. Id. at 221. The Walsh court believed that the

2 undertakings would be disobeyed. Id. at 221, n.15. Here, there are no such allegations against _____ and he has agreed to safe-harbor provisions that will enforce the undertakings in Sweden before the children and _____ even return.3 Nowhere in Walsh does the court disapprove of undertakings; rather, it only held that the lower court had overestimated the strength of the simple undertakings in that case. Id. at 221; cf. March v.

Levine, 136 F. Supp. 2d 831, 848 (M.D. Tenn. 2000) (distinguishing the disobedient petitioner in Walsh with its own left-behind parent).

Undertakings are favored by courts in the United States. As stated by the Second

Circuit this year “it is important that a court considering an exception under Article 13(b) take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation.” Blondin v. Blondin, 238 F.3d 153, 156

(2nd Cir. 2001) see also Croll v. Croll, 229 F.3d 133, 135, n.1 (2nd Cir. 2000); Feder v.

Evans-Feder, 63 F.3d 217, 226 (3rd Cir. 1995) citing Thomson v. Thomson, 119 D.L.R.4th

253 (Can. Sup. 1994); Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 959 (E.D. Mich.

2001). Most powerfully, the Blondin court emphasized that in cases of serious abuse (and here there are no such findings), before a court may deny repatriation on the ground that a grave risk of harm exists, the court must examine the full range of options that might make possible the safe return of a child to the home country. Blondin at 163, n.11.

3 _____ counsel has indicated that in the event there is a return order entered by this Court, she will accompany the children to Sweden.

3 EFFECT OF STIPULATIONS

Stipulations 1, 2, 3 and 10, when taken together, establish _____ burden of proof that the children were “wrongfully removed or retained with the meaning of the

Convention.” See 42 U.S.C. § 11603(e)(1)(A). These stipulations establish (1) that the children were habitually resident in Sweden immediately before their removal to the United

States; (2) that the children’s removal was in breach of the rights of custody of a person, an institution or any other body; and (3) that those rights were actually exercised at the time of removal or would have been so exercised in the absence of their removal. See Hague

Convention, art. 3.

ORDER OF WITNESSES

To rebut _____ exceptions case, _____ will call the following witnesses in the following order:

1. _____.

2. _____.

3. _____.

4. Impeachment witness.

Attorneys for Plaintiff, _____

CERTIFICATE OF SERVICE

4 I HEREBY CERTIFY that on this ______day of December, 2001, a copy of the foregoing PLAINTIFF _____ TRIAL BRIEF was faxed and mailed, first class, postage prepaid, to:

_____, Esquire