SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
Patrice d’Assignies and Sandra Escalante
No. BD 051876
STATEMENT OF DECISION RE
PETITIONER’S
APPLICATION UNDER THE
CONVENTION ON THE CIVIL ASPECTS
OF
INTERNATIONAL CHILD ABDUCTION
DONE AT THE HAGUE ON 25 OCT 1980
C. Bernard Kaufman
Judge of the Superior Court
09 Dec 1991
The present action arises under the provisions of the 1980
Hague Convention Treaty dealing with the civil aspects of
international child abduction (Hague Convention) and the
congressional act known as the international Child Abductions
Remedy Act (ICARA) which establish procedures to implement the
Hague Convention.
Both France and the United States are contracting states
under the terms of the Hague Convention. The fundamental purpose
of the Hague Convention is to protect children from wrongful
international removals or retentions. Contracting states are
obliged by Article 2 to take all appropriate measures to implement
the objectives of the Convention as set forth in Article 1: (1) To
secure the proper return of the children wrongfully removed to or
retained in any contracting states; (2) To ensure that rights of
custody of access under the law of one contracting state are
effectively respected by another contracting state. If the
Convention applies, a child wrongfully removed or retained within
the meaning of the Convention is to be promptly returned unless
one of the narrow exceptions set forth in the Convention applies.
The wrongful removal of minors from one country to another
country is not novel and, in fact, is quite common. This
particular case is unique in that the father, after filing a
petition under the Hague Convention for the return of the two
children, wherein he alleged they were wrongfully abducted from
France by the natural mother, abducted the children midway into
the hearing in violation of the Court’s Orders of October 25,
1991, and orders still in effect with respect to Case No. CF026066
of August 2, 1991.
Congress found that international abduction or wrongful
retention of children is harmful to their well-being. It declared
that persons who obtain custody of children by virtue of their
wrongful removal should not be permitted to obtain custody of
children. It found that international abductions and retentions
are increasing and only concerted cooperation pursuant to an
international agreement can effectively combat the problem.
The actions of the parties in this case amply demonstrate the
problem. Between March 17, 1991 and October 27, 1991 there have
been three abductions; the first took place within France and the
last two were international abductions.
In the pending action, petitioner/father seeks the return of
his two children who were removed by their mother from France to
the United States.
PRELIMINARY FACTS
The parties, Sandra Escalante (hereinafter referred to as
mother) and Patrice D’Assignies (hereinafter referred to as
father), never married and have lived together both in France and
the United States.
Both of the minor children of the parties were born in the
United States. The minor Yannick Escalante Picot D’Aligny
D’Assignies (hereinafter referred to as Yannick) was born June 15,
1985, and minor Adurey Escalante Picot D’Aligny D’Assignies
(hereinafter referred to as Adurey) was born September 23, 1987.
On October 2, 1987, mother filed a Complaint to establish her
parental relationship in the Los Angeles Superior Court, Case No.
CF026066. She requested an order for the children’s custody. On
that same day, October 2, 1987, mother filed an Order to Show
Cause for child custody, subject to father’s rights of reasonable
visitation. She did not seek support in her Order to Show Cause.
In the Complaint she sought sole custody of the children and an
order that the father not remove the children from California
without the written consent of the mother and ordering the father
not to take the children to Europe without permission of the
mother.
Father at the time (October 1987) was staying in Los Angeles.
The mother had returned to California to give birth to the child
Adurey, and at said time Yannick was also in California. Father
was served in Los Angeles County on October 3, 1987 with a copy of
the Complaint and Order to Show Cause, which was set for October
30, 1987.
Other than a Substitution of Attorneys being filed by mother,
no further documents were ever filed in the 1987 California case
until 1991. The father did not appear in said action until 1991.
No trial was ever held and no default was ever entered against the
father.
The parties and the children returned to France in November
of 1987 and although mother traveled to the United States during
1988, 1989 and 1990, sometimes with one or both of the children,
the parties and the children lived most of the time in France in
the father’s home at La Bastide.
The Declarations of both parties indicate they were estranged
starting in late 1990 and the early months of 1991. By March of
1991, father realized that he had not perfected legal custodial
rights to the children under French law. At the time that the
father abducted the children from the mother in March of 1991,
mother could have left France with the children without need of
the father’s permission.
According to father’s declarations, of which there have been
several filed in the present case, he believed in March of 1991
that mother was about to leave France with the children. The
father decided to abduct the children and hide them from the
mother which he did on or about March 17, 1991. The French police,
at the urging of the mother, as well as the local French
prosecutor, aided the mother in helping her to locate and obtain
the eventual return of the children. The father and the children
were missing for over a month and although father called and
allowed the children to speak to the mother he would not disclose
to the mother where either he or the children were located.
While the father was hiding the children from the mother in
May of 1991, he caused to be filed an action in the domestic
Relations Court of the Superior Court of Carcassonne. His Order to
Show Cause was filed May 13, 1991 and the hearing was set for May
21, 1991.
The Order to Show Cause required the mother to appear in said
court regarding father’s claim for custody of the minor children.
Father alleged that he and the mother had lived in the United
States from 1984 to 1986 and had lived in his estate in La Bastide
since 1986. He alleged that the mother was threatening to take the
children to the United States. He asked the Court to grant him an
exercise of parental authority over the children, and that their
primary residence be established at his residence at La Bastide,
subject to visitation by mother, but with an Order restraining her
from leaving France because of the risk that she might take the
children out of France.
On May 22, 1991, both of the parties were in the Matrimonial
Court in Carcassonne before Judge Collette Perault. The Judge
ironed out a Stipulation between the parties that postponed any
Ruling on the father’s request to exercise parental authority and
determination of the primary residence of the children pending a
custody evaluation as well as a psychological evaluation of the
children. The Court ordered that the primary residence of the
children would be with the mother at a residence close to father’s
community, granting certain visitation and overnight visitation to
the father during certain days of the week. The Court ordered
father to pay financial support for the children. Mother told the
judge that the American passports for the children were lost. The
judge ordered that the French passports for the children be turned
over to the Court and further ordered mother not to leave France
and its territories with the children until a decision was reached
by the Court.
Under the French Court’s order of May 22, 1991, mother was
able to obtain an order for the physical custody of the children.
The children were finally turned over to her by the father on May
24 pursuant to said order. According to mother’s declaration she
believed father would remove the children from France and take
them to Africa. Her fears were based upon the father’s statements,
his behavior in the presence of the children, and alleged acts of
physical and psychological abuse against her. Thus, the mother,
after agreeing not to leave and the Court having ordered the
mother not to leave pending the custody evaluation and
psychological study, disobeyed the French Court’s Order and left
France with the two children on May 30, 1991 and returned to
California.
After the mother left France, the father brought this matter
to the attention of the French Court which granted an ex parte
type of hearing that was held on June 10, 1991. The Judge who had
previously entered an order for custody to the mother modified and
changed the order granting custody of the minor children to the
father. Said order granted custody of the minor children to the
father subject to visitation by the mother dated June 20, 1991.
Mother upon her return to California filed an Order to Show
Cause on July 11, 1991 in the original California case CF026066
with a hearing date set before August 2, 1991. in the Order to
Show Cause mother sought permanent custody of the minor children.
Father was served in France.
Father, through his California attorneys, made a special
appearance in the California action on September 6, 1991. The
father was granted the opportunity to continue the hearing and
numerous documents were filed by his attorney in his behalf. At
father’s request, the Order to Show Cause of mother was again
continued to October 10, 1991. On September 1O, 1991, father filed
a Motion to Stay or Dismiss the mother’s Order to Show Cause
because of lack of jurisdiction. Father again on September 19,
1991 filed a voluminous “Notice to Dismiss for Lack of Subject
Matter Jurisdiction or Forum Non Conveniens” alleging that France
was the “Home State.”
The essence of father’s contentions were that the custody
issue should be determined in France not the United States. On
October 1O, 1991, all of the matters were before the Court
including declarations, briefs, points and authorities and other
pleadings.
On October 10, 1991, father, through his attorneys, invoked
the provisions of the Hague Convention and requested relief under
the Hague Convention. Father’s application in the present case
invoking the Hague Convention had the affect of staying the
California case as it had proceeded up to October 10, 1991.
Father, by invoking the Hague Convention, had nothing to lose. He
still retained his rights under the underlying UCCJA action if for
any reason the Hague Convention did not apply.
Father had already set the groundwork for his application
under the Hague Convention when he advised the “Central Authority”
in the United States of his intent to apply under the Hague
Convention for return of his two children. This Court had received
such a written notice on September 10, 1991 from the State
Department (Central Authority) of father’s claim and possible
application by father to this Court of a Hague COnvention
petition.
The notice which is attached to this order and marked as
Exhibit “A” makes it quite clear that if such petition is filed,
the court must not decide the case on the merits or rights of
custody until it has decided whether the children are to be
returned under the Hague Convention.
The father came to California several times during the
proceedings in September and October of 1991. On these occasions,
over the protest of mother and her counsel, both of whom expressed
fears that the father would abduct the children if he had the
chance, the Court ordered visitation to be accorded to the father.
Initially, the monitoring of the visitation was conducted by the
father’s own attorney. On the father’s insistence at the hearing
on October 25, 1991, monitoring was changed to allow for
monitoring every 4 hours by the mother while father visited with
the children on Saturday the 26th, and Sunday, the 27th of
October.
On Monday, the 28th of October, 1991, the Court was advised
by mother’s attorney, father’s attorney being present in Court,
that father had failed to return the children on the visitation
schedule for Sunday the 27th and had abducted the children. This
information came to the Court at a time when the Court was in the
process of considering the issues raised in the present case as
well as reviewing the declarations that had been filed by the
parties in support of their positions regarding jurisdiction under
the Hague Convention.
Although the petitioner in this case has violated the Court’s
orders with respect to the removal of the children from the State
of California pending petitioner’s Hague convention application
filed on October 10, 1991), the Court did authorize petitioner to
file a declaration. The Court’s reasons were based on the safety
of the children. Father’s several declarations exceed 32 pages and
indicate that he is in Paris at this time. The whereabouts of the
children are unknown.
Father acknowledges in paragraph 7 of this declaration the
opportunity the Court has given him and he asks the Court to
carefully read and thoroughly consider his declaration. Father
sets forth his reasons for leaving California with the children
and defends his abduction on the basis that mother is the guilty
one in this custody battle, that he is the best parent, in his
opinion, to raise the children and that the Court is biased
against him.
Father acknowledges in paragraph 17 that prior to October 10,
1991, the date father filed his petition under the Hague
Convention, the Court was proceeding under applicable California
law, including the UCCJA. in said proceedings in Case No. CF026066
father contested the jurisdiction of the California Court and
requested the Court to enforce the French Court orders of May and
June of 1991 .
Father challenges the Court and accuses the Court in his
statement on page 7 of his declaration that he has not been given
equal protection of the law and particularly criticizes the Court
for its limitation of visitation privileges pending the outcome of
the case.
Father points out in paragraph 37 of his declaration that the
mother may have been right in her demand for the posting of bonds
and appointment of monitors because, as father admits, he did
exactly what the mother said she expected him to do – abduct the
children. Father then indicates in paragraph 37 that he is
basically enforcing the French Court orders and that somehow he
has been given that mandate.
Father fails to understand that it is the Hague Convention
that gives this Court the jurisdiction to determine jurisdiction
at this time and in particular fails to understand that he is not
the one authorized to make decisions in this case.
The father in his declaration alleges that the Court has
failed to read certain declarations filed in this case. Attached
to this decision, marked Exhibit “B”, is a list of documents that
have been filed since October 1O, 1991, in just this case alone,
some of which the Court did not have the ability to read prior to
October 25, 1991, and which the Court was in the process of
reading when the abduction by the father took place on the 27th of
October, 1991.
The father continues in his declaration to ask this Court
under the Hague Convention to consider the best interests of the
children.
it appears that the father is arguing in this declaration
that the French judgment and orders are the paramount orders in
this case and not the provisions and article of the Hague
Convention.
The father in his declaration has now set himself up as the
expert in terms of what are the present needs and future needs of
the children as well as where they would be safest.
Starting with paragraph 123 of father’s declaration, he goes
on at great length to remind this Court of past actions of the
mother and what are the duties of the Court in his opinion.
Father, starting on paragraph 109, indicates that as far as
he is concerned, he has already decided the issue before the Court
and how the Hague Convention provisions should be applied and
specifically argues that his abduction of the children to France,
his failure to disclose the whereabouts of the children either to
the Court or to the mother, is not an “intolerable situation.”
The overall tenor of the father’s declaration demonstrates,
as he has on several occasions, that he is not trustful of the
judicial system, particularly the system as set forth under the
Hague Convention, the very law that he requested this Court to
apply.
His declaration goes beyond the issues as prescribed by the
Hague Convention and allege statements regarding the best
interests of the children which runs counter to his original
arguments when he filed his application under the Hague
Convention.
FACTS PERTAINING TO THE HAGUE CONVENTION PETITION
Father in his Hague Convention Petition alleged the children
had been wrongfully removed from the contracting state of France,
that the children were habitual residents of France and were
abducted from France by the mother who at the time of the
abduction was under an order of the French Court not to remove the
children from France. He further alleged in his petition that the
French Court had ordered both a custody and psychological
evaluation although mother had been granted custody of the minor
children subject to specified times for visitation by the father.
Father in his petition requested the Court to recognize the French
Orders of May 22, 1991 and June 20, 1991. Father claims his rights
of custody are under Article 5(a) and that the children should be
found to be habitual residents under Article 3(a). Father alleged
a wrongful removal on or about May 30, 1991 by the mother, as well
as a wrongful intention by the mother in violation of Article 3 of
the Hague Convention. Father requested a Stay of All Proceedings
in Case No. CF026066 which was granted. Father even requested the
Court in the present case to issue an immediate order preventing
the removal of the children from the State of California by the
mother and asked that the mother be required to post a bond of
$50,000. Father requested that the two cases be consolidated.
Father requested attorney’s fees and costs pursuant to Article 26.
FINDINGS AND DECISION
The Hague Convention involves not just the parents and their
children but involves the respective contracting countries (France
and the United States) as well as the various judicial tribunals
which have been given general jurisdiction to hear such Hague
Convention applications.
HABITUAL RESIDENCE
“Habitual residence” is an undefined term in the convention.
According to commentators on the convention, this was a matter of
deliberate policy, “the aim being to leave the notion free from
technical rules which can produce rigidity and inconsistencies as
between different legal systems,” The Conflict of Laws, Dicey and
Morris, Eleventh Edition, pg. 166. Habitual residence is often
compared to the requirements for residence and domicile. These
commentators go on to say that it “is greatly hoped that courts
will resist the temptation to develop detailed and restrictive
rules as to habitual residence which may make it as technical a
term of art as common law domicile.”
Habitual residence is concerned with the length of time a
party actually resides in a location, but it is also concerned
with employment, education, health care, and other connections
established by the party, Re Bates, High Court of Justice, Family
Division, United Kingdom; February 23, 1989.
Finally, several cases have pointed out that the habitual
residence of a child (particularly a young child) must be analyzed
with respect to the “custodial parent.” In re Bates, supra at pg.
5, the court stated that “[i]n the case of a child as young as
Tatjana the conduct and overtly stated intentions and agreements
of the parties during the period preceding the act of abduction
are bound to be important factors . . .”
Both Yannick and Adurey were born in Los Angeles. Yannick was
born June 15, 1985 and Adurey on September 23, 1987. Yet during
the entire period from June 1985 until March 1988 there were
several trips and moves between the countries, and the parties
disagree as to whether France or Los Angeles was the principal
residence. The Los Angeles paternity complaint was filed during
this time (October 2, 1987).
in early 1988, Yannick and Adurey began residing continuously
in France. On March 19, 1991, petitioner fled to Southern France
with the children for approximately two months. The parties
appeared at the May 30, 1991 proceedings in France, but respondent
left for Los Angeles with the children a few days later. The
children remained in Los Angeles for approximately five months
before the petitioner again abducted the children, apparently
taking them back to France.
Petitioner’s argument is simply that France has been the
children’s habitual residence since March 1988 (notice that the
arguments set forth by petitioner and respondent were contained in
their declarations and given as testimony before the most recent
abduction).
Respondent’s argument is that France ceased to be the
habitual residence at the moment respondent left France.
Respondent attempts to support his argument by noting the various
ties she currently has in Los Angeles, and clearly declaring her
intent to remain.
Only one court has taken the view that habitual residence can
be terminated by a parent simply removing the child from the
country; In Re J (1990) 3 W.L.R. 492. The case is cited at length
in respondent’s Points and Authorities. The Court stated that
“[i]t may take time – I do not say it does – to establish habitual
residence, but I cannot see that it takes any time to terminate
it. There is not doubt in my mind that the mother ceased to be
habitually resident in Western Australia from the moment she left
Western Australia bound for England, with the intention of
remaining permanently in this country.”
In Re J must be considered with its factual setting. Under
the law of Western Australia, an unmarried mother has exclusive
rights to her child, unless the court confers rights on the
father. The Court expressly stated in the last paragraph of the
In Re J opinion that “in the ordinary case of a married couple, in
my judgment, it would not be possible for one parent unilaterally
to terminate the habitual residence of the child by removing the
child from the jurisdiction . . .”
In Meredith v. Meredith, 759 F.Supp. 1432 (D. Ariz. 1991),
the court held that a parent should not be allowed to establish a
new habitual residence through unlawful abduction. in Meredith the
mother took the child from Arizona to England without the father’s
knowledge father and husband).
The court stated that “the only reason that [the child] left
Arizona was to accompany her mother . . .” To equate the
temporary removal and subsequent sequestration of the minor child
to legal status of habitual residence in another country would be
to reward petitioner for her ability to conceal the child . .
France was the habitual residence of the children at the time
of respondent’s abduction having resided in France almost
continuously from March 1988 until the events surrounding the
current proceedings began.
WRONGFUL REMOVAL
Article 3 provides that a removal is wrongful only if it is a
breach of a party’s right of custody, and at the time of removal
those rights were being exercised (notice that wrongful retention
is not an issue in the case since respondent’s May 30 departure
was not approved or consented to by petitioner). The issue in
dispute under Article 3 is whether petitioner has a right of
custody pursuant to the French order of May 30, 1991.
Respondent maintains that under French law she has all rights
with respect to the child. The applicable Article in the French
Civil Code reads as follows: “. . . if both parents have legally
acknowledged the Child, parental authority is to be exercised by
the mother,” Article 374, French Civil Code. According to
respondent, authority can only be exercised jointly if a request
is made at the public prosecutor’s office.
Petitioner maintains that the May 30 order gave him a clear
right of custody within the meaning of the Convention. The order
provided for primary residence, visitation, directed mother to
live near father, and stated that respondent was “not to leave
French territory with her children until a decision on the primary
residence of the children is rendered.” Based on these orders,
petitioner states that he has shared custody rights with the
respondent.
Again, it is useful to see how commentators have interpreted
Article 3. The authors of the Federal Legislative Analysis (cited
in petitioner’s Points and Authorities) give a broad meaning to
the term “rights of custody.” They state that the wrongful removal
arises because the abducting parent has disregarded the rights of
the other parent and has interfered with their normal exercise.
Also, Article 3 itself defines the term by stating that it
includes rights relating to care of the child and the right to
determine place of residence. Although rights of custody can be
determined by referring to an actual custody ruling or order, the
term seems to have a broader meaning within the Convention.
Respondent argues that because petitioner was not given the
authority to determine the place where the children live, he was
given no rights with respect to the children. She points out that
the order itself only mentions visitation.
Two cases have determined that a right of custody existed
because of a parent’s right to prohibit the removal of the child.
In C v. C (1989) 1 W.L.R. 654, the parties had a consent order
whereby the mother was granted custody and neither parent could
remove the child from the country without permission from the
other. The court held that this conferred a right of custody. in
Costa v. Costa, August 21, 1991, the High Court of Justice,
England, the court found that New York law prohibits removal
regardless of the language of the order.
Petitioner contends that it is relevant that respondent could
not leave France with the children and that this aspect of the
order impliedly provides that the court and the father
(petitioner) must be given notice before the children are taken.
This appears to be the better view. Petitioner had no right to
determine residence because there was a restriction placed on
respondent.
Further, the right to determine residence is just one element
cf the right of custody. The privileges that petitioner received
as part of the May 30 order are sufficient to confer a right of
custody. The Court finds that the petitioner was exercising his
right of custody when mother removed the children from France in
May of 1991. Additionally, none of the provisions made by the
Court on that date were permanent. They were intended to preserve
the status quo until a full custody determination was rendered.
ARTICLE 13 EXCEPTIONS
A court is not bound by the Hague Convention to order the
return of the children if the respondent can establish the
applicability of one or more of the exceptions to the return
obligations. Such provisions are to be narrowly construed and the
courts are advised under the provisions of the Hague Convention
that they should not involve themselves with determining the best
interests of the children.
Under Article 13(b), if the respondent establishes that the
child’s return will pose a great risk of physical or psychological
harm, or otherwise place the child in an intolerable situation,
then the court is not obligated to return the child.
Section 4(e)(A) of the Federal Act (ICARA) provides that in
United States proceedings the respondent must establish this
exception by “clear and convincing evidence”, which is a very high
civil burden of proof.
There is no precise definition or example given as to what
constitutes an intolerable situation, but it appears to this Court
that governments, individuals, as well as judges, have the ability
to make this determination.
The two children in question have doubtlessly been placed in
an intolerable situation. The children have been victims of two
wrongful kidnappings by the father, the last one coming within 48
hours after the Court had granted the father visitation rights
pending his Hague Convention application.
At the October 25, 1991 hearing this Court explained that it
hoped to make a quick decision as to whether the children would be
returning to France. The father was then granted weekend
visitation privileges. Father abducted the children at some point
during the October 27 weekend, subjecting the children to further
uncertainty.
The older child, Yannick, is very bright and impressed the
Court on October 25, 1991, by his expressed concerns. He was
concerned and expressed anxiety about return to France,
particularly without his mother. The children are young, too young
to be able to decide which country they should reside in (Hague
Convention Article 13(c)) and far too young to cope mentally and
emotionally with the traumatic events that are enveloping them by
reasons of their father’s most sudden and recent abduction.
The present situation is intolerable. The father’s present
actions coupled with the declarations and testimony of Dr. Allen
Gottfried clearly demonstrate and the Court so finds that there is
a grave risk that continued custody by the father in France would
expose the children to psychological harm, placing the children in
an intolerable situation.
Father asks this Court to disregard his present act of
abduction, in violation of the Court’s order and contrary to the
spirit and express provisions of the Hague Convention, and asks
that he be allowed to reopen the hearings in France based on the
best interests of the children.
The Court finds that the father abducted the children on
October 27, 1991, while his application under the Hague Convention
was pending exposing the children to psychological harm and that
any return of the children to France would expose the children to
further psychological harm within the meaning of Article 13(b) of
the Hague Convention. The presence of the children in France by
reason of father’s abduction of October 27, 1991, or any return
that might be ordered by this Court would place the children in an
intolerable situation within the meaning of Article 13(b) of the
Hague Convention.
The children at the present time, while not physically in
California, are still under the Court’s jurisdiction pursuant to
the legal authority granted to this Court under the terms of the.
Hague Convention and ICARA.
The Court finds that petitioner’s actions as outlined above
clearly violate established principles of comity of nations and
international law. Under international law and the Hague
Convention, once jurisdiction is obtained over the person, that
jurisdiction continues throughout the action and cannot be
defeated by a voluntary withdrawal or an abduction of the
children, such as was done in this case.
At this time, although there may be conflicting orders with
respect to the custody of the children and conflicting orders
regarding jurisdiction to hear matters involving the custody of
the children, this Court finds that this Court has jurisdiction
over the children although they are not presently domiciled in
California. The obvious illegal act of self-help undertaken by the
father cannot be a basis for establishing or re-establishing
jurisdiction in any other court, including the French Courts, to
hear matters relating to the custody and visitation of the
children at this time.
By this decision, this Court asks the respective central
authorities in the respective countries in France and the United
States to make every effort and to carry out their
responsibilities and duties under the Hague Convention and under
the implementing legislation in the respective countries to bring
about the immediate and prompt return of the children to
California. This Court respectfully asks the appropriate tribunals
in France to take all measures to have the children return to
California so that this Court can complete and fulfill its
obligations under the Hague Convention. Pursuant to the terms of
ICARA and Hague Convention, Respondent is entitled to reasonable
fees and costs.
DATED: 12-9-91
/s/ C. Bernard Kaufman
__________________________________
C. Bernard Kaufman
Judge of the Superior Court