USA – AUBRY – 1991

AUBRY v. AUBRYNew York Law Journal, 16 Sep 1991

Plaintiff-father’s unopposed Order To Show Cause requests
sole custody of the three-year-old daughter of the parties and her
return to the United States from Switzerland where she has been
living since her removal from the United States by
defendant-mother.

Both the plaintiff and the defendant are Swiss citizens and
the child holds dual U.S. and Swiss citizenship, having been born
in the United States of Swiss parents. Upon her return to
Switzerland, FN1 the mother instituted an action for divorce and
custody. ALthough she has been served with a summons with notice
and the within Order To Show Cause, she has chosen not to appear
before this Court.

The questions here are those of jurisdiction, to wit: (1)
Does this Court have jurisdiction over the action; over the infant
in regard to custody? (2) Can we order the return of the child to
the United States, considering the fact that both parents are non
U.S. citizens? (3) Which jurisdiction has precedence? (4) Does DRL
Article 5A, Sec, 75, et. seq. permit an exercise of custody
jurisdiction in the instant matter?

An ex parte hearing was held by the Hon. Patrick Leis prior
to the signing of the Order To Show Cause, due to the relief
requested. Pursuant to that hearing, the plaintiff-father was
granted temporary custody until the return of the return date of
the motion. This was based on Justice Leis’ determination that by
unilaterally taking the child from the United States, defendant
has precluded the Court from hearing her testimony.

The parties were married in New York State on June 6, 1987,
after having met in Switzerland (where both families still
reside), during a visit there by the plaintiff. The plaintiff was
working in the United States at that time. After their marriage,
they resided in Suffolk County, New York, . and continued to do so
until the defendant left on December 21, 1990. The infant
daughter, Melanie, was born in Port Jefferson, New York on March
25, 1988.

Several times during the marriage, more particularly after
the birth of the child, the parties and/or the defendant and the
infant – daughter returned to Switzerland. In June of 1990 they
all went to Switzerland for three weeks, returning to the United
States on June 25, 1990. On July 28, 1990, the defendant-mother
and the child returned to Switzerland and stayed for three months,
returning October 25, 1990. They remained in Suffolk County until
December 20, 1990, at which time the defendant took the child to
Switzerland without the knowledge or consent of the plaintiff.

The plaintiff visited with the child for extended periods of
time when he was in Switzerland, but does not now have access to
the child.

Does New York State Supreme Court have jurisdiction to make a
custody determination?

Domestic Relations Law, Sec. 75-d, states, in part:

1. A court of this state which is competent to decide child
custody matters has jurisdiction to make a child custody
determination by initial or modification decree only when:

(a) this state (i) is the home state of the child at the time
of commencement of the custody proceeding, or (ii) had been the
home state within six months before commencement of such
proceeding and the child is absent from this state because of his
removal or retention by a person claiming his custody or for other
reasons, and a parent or person acting as parent continues to live
in this state; or

(b) it is in the best interest of the child that a court of this
state assume jurisdiction because (i) the child and his parents,
or the child and at least one contestant, have a significant
connection with this state and (ii) there is within the
jurisdiction of the court substantial evidence concerning the
child’s present or future care, protection, training, and personal
relationships; or (d) (i) it appears that no other state would
have jurisdiction under prerequisites substantially in accordance
with paragraph (a), (b), . . . and (ii) it is in the best interest
of the child that this court assume jurisdiction.

3. Physical presence of the child, while desirable, is not a
prerequisite for jurisdiction to determine his custody.

The plaintiff-father has resided in New York State since
April, 1981. He apparently has no plans to reside anywhere else
and he has established roots in Suffolk County, New York; working
in Hapauge and owning two homes. The child, Melanie, has resided
in Suffolk County since her birth in May of 1988 except for the
period of time since her abduction.

The Hague Convention on the Civil Aspects of international
child Abduction is a treaty dealing with the world wide problem
surrounding international child custody jurisdiction, orders, and
enforcement. 51 Fed. Reg. 10498 (1986). The Convention was
deposited in the Hague on April 29, 1988. The provisions of the
Convention became effective in the United States on July 1, 1988.

Under the Convention, the resolution of custody disputes is
presumed to be accomplished best in the courts of the child’s
“habitual residence,” a concept that is similar to, if not
identical to, the concept of the “hone state” in the UCCJA. Thus,
the Convention requires the prompt return of the child.

Article 4 The Convention shall apply to any child who was
habitually resident in a Contracting State immediately before any
breach of custody or access rights. The Convention shall cease to
apply when the child attains the age of 16 years.

Under U.S. law and many other systems of law, if there is no
decree of custody, both parents have legal custody of their ,
child and a parent-snatched child is generally not considered
legally abducted. However, The Convention on the Civil Aspects
of lnternational Child Abduction, done at The Hague on October 25,
1980, establishes legal rights and procedures for the prompt
return of children who have been wrongfully removed or retained,
as well as for securing the exercise of visitation rights.
Children who are wrongfully removed or retained within the meaning
of the Convention are to be promptly returned unless one of the
narrow exceptions set forth in the Convention applies. The
exceptions are set forth in Articles 4, 12, 35, 13 and 20.

Articles 4, 35 and 12 relate to time limitations on return
obligations.

Article 4 — Convention ceases to apply once child reaches
age 16.

Article 35 – limits application of the Convention to Wrongful
removals occurring after its entry into force between the two
relevant Contracting States (countries).

Article 12 – the Court is not obligated to return a child
when return proceedings pursuant to the Convention are commenced a
year or more after the alleged removal or retention and it is
demonstrated that the child is settled in it’s new environment.

Article 13 – Limitations on the Return Obligation.

Article 13(a) – the judicial authority may deny an
application for the return of a child if the person seeking the
return of the child was not actually exercising the custody rights
at the time of the removal of retention or had consented to or
acquiesced in the removal or retention. This would constitute an
exception to Article 3(b), a.

Article 13(b) – A court in its discretion need not order a
child returned if there is a grave risk that return would expose
the child to physical harm or otherwise place the child in an
intolerable situation.

The third, unlettered paragraph of Article 13 permits the
Court to decline to order the child returned if the child objects
to being returned and has attained an age and degree of maturity
at which it is appropriate to take into account the child’s views.

None of the Article 13 exceptions to the return obligation is
mandatory.

Article 20 limits the return obligation of Article 12. It
states: “The return of the child under the provisions of Article
12 may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms.

None of the above apply in the instant case.

The removal or the retention of a child is to be considered
wrongful where it is in breach of rights of custody attributed to
a person, an institution or any other body, either jointly or
alone, under the law of the State in which the child was resident
immediately before the removal or retention; and at the time of
removal or retention those rights were actually exercised, either
jointly or alone, or would have been exercised but for the removal
or retention.

In addition, the terms “wrongful removal or retention” and
“wrongfully removed or retained,” as used in the Convention,
include a removal or retention of a child before the entry of a
custody order regarding that child. (Hague Convention, Oct. 1980).
The Convention also addresses the issue of jurisdiction:

Jurisdiction of the courts – The courts of the States and the
United States district courts shall have concurrent original
jurisdiction of actions arising under the Convention. FN2

Petitions – Any person seeking to initiate judicial
proceedings under the Convention for the return of a child or for
arrangements for organizing or securing the effective exercise of
rights of access to a child may do so by commencing a civil action
by filing a petition for the relief sought in any court which has
jurisdiction of such action and which is authorized to exercise
its jurisdiction in the place where the child is located at the
time the petition is filed. FN3

Notice – Notice of an action brought under subsection (b)
shall be given in accordance with the applicable law governing
notice in interstate child custody proceedings. FN4

Determination of case – The Court in which an action is
brought under subsection (b) of this section shall decide the
course in accordance with the Convention. FN5

in the instant case, although the petitioner came in with
joint custody, which is, under the Convention considered
“custody,” he now has, pursuant to Justice Leis signing of the
Order To Show Cause brought in this Court, temporary custody with
a direction to the defendant-mother to return the child to the
United States. This order has not been complied with, although
service has been effectuated.

Although both parents are Swiss citizens and the child holds
dual citizenship, the Hague Convention is applicable to this
matter. There is no mention of nationality requirements, and, in
fact, the parents or the children involved need not even be
citizens of the country in which they live or to which the. child
is abducted.

“A child abduction tends to build barriers between the child
and the other parent. The abducting party wants the difficulties
of international procedures, as well as the distance to provide a
monetary, if not definitive protection. The Hague Convention tends
to combat child abduction by discouraging the potential abductors
by organizing the immediate return of the child and by restricting
the possibilities of opposing the return.” (Mr. Deschenaux, La
conventionde de la Haye, in Aillluaire Suisse de Droit
International, XXXVII 1981, page 122).

This Court will not in any way compromise the aims of The
Hague Convention. If it did so, it would clearly neutralize the
mechanisms of the convention as approved by the countries who have
adopted it. The ultimate aim of the Convention is a procedure in
the United States and the taking of jurisdiction by this Court.
This would serve to re-establish the situation which existed
before the child’s situation which existed before the child’s
abduction without any consequences to the ultimate right of
custody. FN6

Taking into consideation of all the facts as stated above,
this Court takes jurisdiction of the instant case and determines
that the plaintiff’s request for relief shall be granted as
follows:

The plaintiff is granted temporary custody of the infant
issue of the parties, to wit: Melanie Aubry.

The defendant is directed to return said infant to the care
and custody of the plaintiff in the United States and is further
enjoined from removing the child from the care and custody of
plaintiff in the United States without plaintiff’s consent or
order of this Court and;

The defendant is further directed to surrender to plaintiff’s
attorney, Nicholas A. Gabrielle, Esq., the dual passports of the
infant and any other passports on which she may be listed.

The defendant is granted liberal visitation with the child in
the United States and in no way shall be excluded from frequent
contact with the infant.

A copy of this order shall be personally served upon the
defendant at her residence in Switzerland.

The foregoing constitutes the Order of this Court.

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WMH Comment 12 Oct 1991:

The Court uses the Convention as means of determining that New
York has jurisdiction. Nowhere in the Convention or ICARA is this
implicit or explicit. The Convention does not concern itself with
the proper court where a matter shall be heard nor does it concern
itself with the merits of the case.

The Court, however, did have jurisdiction under the Uniform Child
Custody Jurisdiction Act (UCCJA) Domestic Relations Law, Sec.
75-d(1)(b), Significant Connections. While (and it is not clear
from the text of the case) the child appears to have been out of
New York for more than Six Months and therefore Switzerland has
become the “Home State” within the meaning of 75-c(5) (but see
Massey v Massey (1982) 89 A.D. 566 [452 N.Y.S.2d 101 and Lotte U.
v Leo U. (1985) 128 Misc.2d 896 [491 N.Y.S.2d 581] where it was
held that a foreign country was not a state, specifically that
Switzerland was not a state. Contra decisions exists, see, eg, In
re Marriage of Arnold (Cal.App. 1 Dist. 1990) 222 Cal.App.3d 499
[271 Cal.Rptr. 624] [Canada is a “state”]) this is but one of four
possible choices available. The Significant Contacts is in the
alternative and can be used even though the Home State is
preferred. Note that this differs from the PKPA (28 U.S.C. 1738A)
which does give the Home State exclusive jurisdiction for an
initial action. The PKPA does not apply in this case by its own
terms.

A more serious defect appears to be that an action was pending in
Switzerland prior to the action in New York. Assuming that Massey
and Lotte do not apply, then New York would be prohibited from
exercising its jurisdiction under DRL 75-g: Simultaneous
proceedings in other states. That this section does apply to a
foreign country is seen by the Commissioners’ Comment to DRL 75-w,
which is 9 Uniform Laws Annotated (ULA) 23, paragraph 2:

The first sentence makes the general policies of the Act
applicable to international cases. This means that the substance
of section 1 and the principles underlying provisions like
sections 6 (DRL 75-g), 7 (DRL 75-h), 8 (DRL 75-h), and 14(a) (DRL
75-o(1)), are to be followed when some of the persons involved are
in a foreign country or a foreign custody proceeding is pending.

Another issue that was not discussed: If the child has been in
Switzerland for over a year, then it would a decision of the Swiss
courts as to whether or not the child would be returned under
Article 12 of the Convention.

END OF COMMENT
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——————–
1. WMH Note 12 Oct 1991: When did she leave New York and when
did she arrive in Switzerland?

2. WMH Note 12 Oct 1991. Here it becomes a bit different: The
court switches, without stating why, from the Convention to
the ICARA. This is 42 USC 11603(b).

3. WMH Note 12 Oct 1991: 42 USC 11603(b). Note the language:
“Where the child is located”. First: It can be argued that
the child is not present in New York and therefore New York
does not have jurisdiction to entertain a petition for the
return of a child. Second: The matter before the court was
an Order to Show Cause for custody of a child which the
Concention does not permit, see Article 19 of the Convention
and 42 USC 11601(b)(4)

4. WMH Note 12 Oct 1991: 42 USC 11603(c).

5. WMH Note 12 Oct 1991: 42 USC 11603(d)

6. WMH Note 12 Oct 1991: This is a principle goal of the
Convention. See Elisa Perez-Vera Report of 1982, No. 34.