TRANSLATION OF THE FRENCH COURT OF APPEALS DECISIONby
Annie Wishingrad
Los Angeles, California
DECISION. ESCALANTE V. PICOT D’ALIGNY D’ASSIGNIES
ARGUMENTS
In closed hearing, on Monday June 1992 at 2:15 p.m..
DECISION
Adversary,
Procedurally, “CIRCUIT COURT”,
in last resort,
publicly pronounced on Wednesday July 29, 1992 by Justice
BERMOND, President, who has signed with the Clerk of the
Court.
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DATES AND PROCEDURE
Sandra Escalante is the Appellant
1) of an Order issued by the Judge of the Matrimonial Affairs
from the Tribunal of Carcassonne on March 22, 1991, qui, pursuant
to the stipulation of the parties:
– recognized that Patrice Picot d’Aligny d’Assignies promised
that he would return to their mother Sandra Escalante two
natural children he had acknowledged: Yannick born in 1985,
and Audrey, born in 1987, on May 24, 1992 LaBastide,
Villespy.
– recognized that Sandra Escalante promised not to leave the
French territory with her children until the Court ruled on
the habitual residence of the children.
– continued Patrice d’Aligny d’Assignies’request regarding
his exercise of parental authority and the habitual residence
of the children and before ruling on said request,
– ordered a social inquiry and a psychological evaluation of
the children,
– temporarily ruled that the habitual residence of the
children with their mother, as she had a domicile close to
Villespy and residing, while awaiting her relocation, in the
castle of LaBastide,
– granted a right of visitation and overnight to the father,
– set the contribution of the father for the support and
education of the children at Two Thousand Francs (FF
2,000.00) per month,
– continued the hearing to September 12, 1991 (case written
in the general repertory under Number 91-6093)
2) of another order issued by the same jurisdiction on June
20, 1991, which granted Patrice Picot d’Aligny d’Assignies the
exercise of parental authority of the two children Yannick and
Audrey, set the residence of the children with their father and
reserved a right of visitation and overnight to the mother. (case
written in the general repertory under Number 91-5498).
MEANS AND ALLEGATIONS OF THE PARTIES
Sandra Escalante, of U.S. citizenship, argues that she
separated from Patrice Picot d’Aligny d’Assignies by reason of his
violence and unfaithfulness; that, in the Spring of 1991, her
companion had left the family residence taking with him the
children, in spite of the fact that she alone had parental
authority, and that Patrice thought it more efficient to take the
initiative, judicially speaking by requesting that the Judge of
the Matrimonial Affairs grant him sole parental authority.
The decision of May 22, 1991 is, according to her, nothing
but the result of pressure and blackmail exercised upon her in the
presence of the magistrate; that is why she decided to “appear to
consent” to what was imposed upon her, the only way for her to
obtain the return of her children, which return only occurred on
May 24. Believing she was still invested fully of the parental
authority by reason of the fact that she is an unwed mother and in
the absence of a declaration granting joint parental authority,
she decided, at the end of May, to leave France to seek refuge at
her parents in the U.S. where a procedure relative to similar
issues was pending.
She contends that the adoption of the stipulation (“donne
acte”) in the decision of May 22, 1991 did not subject her to any
obligation and could not constitute a judicial agreement, since
the parties could not freely dispose of their rights on this
issue.
Sandra Escalante contends that the Order of June 20, 1991 was
issued against her Due Process rights, the service of the notice
of Hearing having been effectuated on June 6 for a June 10
hearing: the letter of the ‘Huissier’ having been delivered on
Friday
She further contends that the first Judge held against her a
crime less serious than that Patrice Picot d’Aligny d’Assignies
had already committed and would again commit when he kidnapped the
children from the United States on October 28, 1991, at the eve of
decision by the American judiciary ordering the return of the
children to the United States. WMHFN-1 Inasmuch as the first
Judge complained that she did not recognize the right of the
children “to have a father”, Sandra contends the Judge did not
hold it against the father that he did not recognize the right of
the children to also have a mother.
Sandra Escalante further invokes the Hague Convention of
October 25, 1980 which seeks to ensure the return of children
kidnapped or illegally detained in a contracting country; she
contends that she, as the custodian of the children, had legally
moved the residence of the children to the United States prior to
the issuance of the June 20, 1991 order.
She requests that the Order of May 22, 1991 and of June 20,
1991 be reversed and the return of the children to the United
States be ordered. She requests Thirty Thousand Francs
(FF3O,OOO.OO) pursuant to Article 700 of the New Code of Civil
Procedure.
Picot d’Aligny d’Assignies retorts that, on May 22, 1991, the
parties had appeared at the hearing “under conditions of complete
objectivity” and that the agreement took place before the Judge of
the Matrimonial Affairs after three (3) hours of negotiations, so
that the consent of the mother was free. He explains the departure
of his former mate by her desire to avoid the evaluation ordered
by the Court, which would have confirmed the allegations contained
in the declarations filed with the Court according to which, due
to a better aptitude on his part, he assumed not only his role as
the father but also the role of the mother.
With respect to the regularity of the procedure which led to
the June 20, 1991 order, Patrice Picot d’Aligny d’Assignies
contends that the ‘Huissier’ followed the provisions of Article
659 of the New Code of Civil Procedure and that further Sandra
should not been heard to complain about not being able to organize
her defense, as she had left leaving no forwarding address and
having broken her judicially adopted stipulation.
On the substance, the respondent has filed various
declarations and a report of a “psychological examination” of the
children done by a psychiatrist, all of which evidencing that
Patrice Picot d’Assignies d’Aligny and his new mate are
well-suited to care for the children, whereas the mother had shown
on numerous occasions her inability to parent and her lack of
interest.
With respect to the Hague Convention Petition, Patrice Picot
d’Assignies d’Aligny claims that the Order of May 22, 1991, in
forbidding the mother to leave the French territory, deprived her
of her sole custody and created a form of joint custody, so the
American authorities should allow the decision of June 20, 1991 to
prevail.
He requests that the two (2) orders be affirmed and requests
Thirty Thousand Francs (FF3O,OOO.00) pursuant to Article 700 of
the New Code of Civil Procedure.
The parties further exchanged certain closing documents to
revise and develop their respective arguments but with no new
evidence.
The Public Minister submits for ruling.
WHEREAS THE COURT,
WHEREAS, in the interest of a good administration of Justice, it
is appropriate to consolidate the case listed in the general
docket as number 91-5498 and the case listed as number 91-6093;
WHEREAS SANDRA ESCALANTE cannot be trusted when she claims
that, on May 22, 1991, the first Judge should not have condoned
the pressures exercised upon her or would even have participated
to these pressures; and that she further in her own pleadings
concedes that she “appeared to consent” to what was asked from
her, in response to the crime previously committed by the father;
WHEREAS, in a matter such as the exercise of parental
authority and the manner in which it is exercised, the parties are
not free to make their own agreements; and that even in the
presence of a Judge of the Matrimonial Affairs they could not
enter into irrevocable stipulations which would constitute
judicial obligations; while it is not forbidden for the parties to
make certain agreement before a Judge, nor it is forbidden for the
Judge to adopt these agreement, such agreements only have moral
value and their violation can only constitute a fact for
consideration in the ultimate resolution;
WHEREAS the ordinance of May 22, 1991 had no judicial effect
in that it only adopted the mother’s agreement not to leave the
French soil with her children until final determination, that more
specifically, such a decision did not in effect deprive Sandra
ESCALANTE of a parcel of the parental authority she had as the
natural mother of the children; that in leaving France with her
children for the United States where she returned, according to
the stamps on her passport on May 30, 1991, Sandra ESCALANTE
undoubtedly violated the agreement made the preceding May 22 but
simply exercised her rights as the natural mother of the children;
WHEREAS Sandra ESCALANTE, who had left her French domicile
with no thoughts for return as early as May 26, 1991 should not
complain of the short notice between service and hearing on June
10, 1991, as it is obvious that a longer notification would not
have allowed her any better to organize her defense, she being
solely responsible for the violation of the due process she
alleges;
BUT WHEREAS, it was reversible error for the Judge of June
22, 1991 to have based his decision on Sandra’s violation of the
May 22 agreement and on ” the rights of the children to have a
father”; that Patrice Picot d’Assignies d’Aligny showed that he
would not stop at violations far more serious than those the first
Judge complained of on the mother’s part; that, since the children
are natural children, their “right to have a father” is based upon
the prominently recognized right of the mother in accordance with
Article 374 of the Civil Code, a right the exercise of which
Sandra ESCALANTE has been deprived due to the crime perpetrated by
the father on October 28, 1991;
WHEREAS, in settling in the United States beginning May 30,
1991 with her children, Sandra ESCALANTE was invested of a
custodial right pursuant to Articles 3 and 5 of the Convention of
October 25, 1980 regarding the civil aspects of International
Kidnapping of Children; that, by reason of the legitimate domicile
of the children in the United States where they had their habitual
residence, the American court was the only court competent to rule
on the issue of the custody of the children; whereas, in
kidnapping the children from the United States, before a decision
by the American court, Patrice Picot d’Aligny d’Assignies falls
within the purview of Articles 3, 29 and 30 of the Hague
Convention, irrespective of the French decision of June 20, 1991;
WHEREAS it will be incumbent upon Patrice Picot d’Aligny
d’Assignies to petition the Court of the residence of his children
as that residence shall be fixed by the mother, to grant him
visitation rights;
WHEREAS Patrice Picot d’Aligny d’Assignies , who had
requested the sum of Thirty Thousand Francs (FF3O,OOO.00) under
the provisions of Article 700 of the Code of Civil Procedure,
inasmuch as he did not prevail, should not complain that a sum in
the same amount is awarded to the appellant:
FOR THESE REASONS;
The court orders that the Case number 91-5498 shall be
consolidated to Case number 91-6093,
Procedurally: orders that Sandra ESCALANTE’s appeal be
granted,
Substantively, declares there are grounds for her appeal and
rejecting,
Declines Patrice Picot d’Aligny d’Assignies’ request to be
granted the custody of his naturel children Yannick and Audrey,
Orders that the children be returned to their mother Sandra
ESCALANTE,
Orders Patrice Picot d’Aligny d’Assignies to pay to Sandra
ESCALANTE the sum of Thirty Thousand Francs (FF 30,000.00)
pursuant to Article 700 of the New Code of Civil Procedure,
Rejects the parties’ further or other requests,
Orders Patrice Picot d’Aligny d’Assignies to pay the costs,
Authorizes direct recovery of the appeals costs by the Law
Firm of CAPDEVILA, based upon its representation that it has
advanced said costs.
Order which has been signed by Justice BERMOND, President and by
Ms COMTE, Clerk.
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1. See ESCLANT.CA on HILTON HOUSE BBS for the text of this
decision.