Blondin v Dubois (S.D. NY 1998)19 F.Supp.2d 123
98 CV 4274 (DC)
12 International Abduction [USA 1998]
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re the Application of :
:
FELIX BLONDIN, :
Petitioner : MEMORANDUM DECISION
: 98 Civ. 4274 (DC)
against :
:
MARTHE DUBOIS :
Respondent :
:
—————————-:
APPEARANCES:
VALERIE S. WOLFMAN, Esq.
Attorney for Petitioner
475 Fifth Avenue, Suite 1800
New York, New York 10017
TEL: (212) 696-0443
LEONARD F. JOY, Esq.
The Legal Aid Society
Attorney for Respondent
52 Dune Street
New York, New York 10007
MEMORANDUM DECISION
<* page 124>
Chin, D.J.
001 Marie-Eline, age 7, and Francois, age 2, are the
children of petitioner Felix Blondin and respondent Merlyne
Marthe Dubois. Last August, Dubois removed the two children
from their home in France and brought them to the United
States, without their father’s knowledge or consent.
Blondin, a French national, petitions this Court for the
return of his two children to France pursuant to the Hague
Convention on the Civil Aspects of International Child
Abduction, Oct. 25, 1980, 19 I.L.M. 1501 (the “Convention”)
and its implementing legislation in the United States, the
International Child Abduction Remedies Act, 42 U.S.C.
11601 at seq. (“ICARA”)
002 I conducted hearings in this case on June 19, 22, 24,
and 29, 1998. I heard testimony from Blondin, Dubois, and
Marie- Eline. After due consideration of all the evidence
and the arguments of the parties, I find by clear and
convincing evidence that there is a “grave risk” that return
of the children to France would “expose” them to “physical
or psychological harm or otherwise place [them] in an
intolerable situation.” Convention, Art. 13(b).
Accordingly, the petition is denied. My findings of fact
and conclusions of law follow.
STATEMENT OF THE CASE
A. The Facts
003 Dubois, a 44-year old French citizen, met Blondin in
the summer of 1990 in Guadaloupe. They were both living in
France at the time; Blondin was in Guadaloupe on vacation
and Dubois was there to attend her father’s funeral. They
became intimate and started living together in France,
although they did not marry. (29 Jun 98 Tr. 23-25, 57).
004 In 1991, Marie-Eline was born in Paris. Blondin and
Dubois continued to live together in Paris, with Marie-Eline
as well as Dubois’s son by a prior relationship, Crispin,
who was approximately 16 years old at the time. (ld. at
24-25, 31-32). Starting in 1991, Blondin often hit or beat
Dubois, sometimes when she was holding Marie-Eline, and
often when he had been drinking. (Id. at 25-29). As Dubois
described the bearings:
Yes, he would beat me with the child on me
sometimes. . . .
He would beat me when the child was on me so she
too would get blows. He beat me with the child
on me, when I had the child on me.
(Id. at 27-28). Marie-Eline confirmed that her father hit
her mother, sometimes with a belt (id. at 17-18), and she
testified that “he spit on my mommy too.” (Id. at 15)
Blondin also screamed at and frequently hit Marie-Eline,
sometimes also with a belt. (Id. at 11).
005 At some point in 1992, Blondin took a piece of
electrical cord and twisted it around Marie-Eline’s neck,
threatening to kill her and Dubois. (Id. at 28-29). The next
day, Dubois left Blondin, taking Marie-Eline and Crispin and
moving to a shelter for battered women. (Id. at 29). After
about two weeks, Blondin came to get them, and they went
home with him. (Id. at 31).
<* page 125>
006 In 1993, Dubois and Marie-Eline left Blondin again,
going to another shelter for battered women, Structure de
Meres et Enfants. (Id. at 32-34). They eventually moved to a
different shelter, Foyer Amitie, where they stayed for
approximately eight or nine months. (Id. at 34-35). Because
of his age, Crispin was taken to a different shelter for
young adults. (Id. at 36).
007 At some point in 1993, Blondin commenced a proceeding
in the French courts to obtain custody of Marie-Eline. In
December, 1993, the proceedings were resolved as Blondin and
Dubois reconciled. (Ld. at 36-39, 41-42) The English
translation of an October 7, 1997 order of a French court
summarized the results of the 1993 proceedings as follows:
“parental authority [over Marie-Eline] was granted to both
parents jointly, the principal residence of the child being
with the father, and the mother having visiting and
sheltering rights.” Dubois and Blondin started living
together again. (Id. at 42). She became pregnant again, and
their son, Francois, was born in August 1995. (Id. at
42-41).
008 Unfortunately, the beatings and threats did not stop.
(Id. at 42-46, 55-56). In March and June 1995, while she was
pregnant, Dubois saw doctors for injuries inflicted by
Blondin. In one examination, the doctor found a cutaneous
excoriation near her right eye, hematomas on the left arm
and forearm, and hematomas on both breasts. The doctor noted
that Dubois reported that she had been beaten by her husband
on June 21, 1995. On an earlier,occasion, a different doctor
reported that Dubois complained of being hit in the face by
her husband on March 19, 1995. this doctor found localized
edema of the lower right maxilla and noted that Dubois
complained of headaches. (DX D).
009 After Francois was born, Blondin continued to beat
Dubois in front of the children and he often threatened to
“kill everyone.” (29 Jun 98 Tr. 45). Once, he threatened to
throw Francois out the window. (Id. at).
010 In August 1997, Dubois left Blondin again, taking the
children and coming to the United states. She explained why
she did this:
Because Felix was worse and worse and worse. He
would beat me very often, be angry all the time,
always yelling, screaming. The children could
not sleep, they were getting nightmares. They
would wake up many times at night.
(Id. at 49). Dubois took the children and left France
without Blondin’s knowledge or consent; indeed, she forged
his signature to a document to get a passport for the
children. (Id. at 61 – 63).
011 In France, Dubois and the children were supported
financially by Blondin. Although Dubois had some funds of
her own at some point, those funds are gone. (Id. at 67-G9).
Since August i997, Dubois and the children have been
supported by and living with her family, including her
brother, in the Bronx. (Id. at 6-10, 227 see also 6/24/98
Tr. 27-29).
012 Marie-Eline has adjusted well to the United States.
She is attending public school, including summer school. She
speaks English well. (29 Jun 98 Tr. 9-10). She did not like
living in France. She explained why:
[THE COURT]. How did you like living in France?
A. Not good.
Q. Not good?
A. (Shakes head).
Q. Why do you say not good?
A. Because he used to scream, and once I was he
hit me up [sic] and because he always hit me. If
I don’t say what he want me to say, he hit me.
Q. Who is he when you say he?
A. My daddy.
Q. Did he hit you a lot
A. (Nods)
Q. Yes?
A. (Nods).
(Id at 11) She stated that she does not want to go back to
France and that she wants to stay in America. (Id. at 17)
She explained that she and her mother and brother left
France and came to America because “my daddy was too — too
trouble for us.” (Id. at 16) She said that she did not
want to return to France because “I don’t want my daddy to
hit me.” (Id. at 17).
<* page 126>
B. Procedural History
013 Blondin commenced this proceeding by seeking an ex
parte warrant of arrest for the two children, asking the
Court to take them into custody pending a determination of
the petition. I met with petitioner’s counsel ex parte on
June 19, 1998, but I was reluctant to issue an ex parte
warrant of arrest without speaking-to petitioner himself.
(19 Jun 98 Tr. 16-20). On June 22, 1998, Blondin appeared,
with his attorney. I conducted an parte hearing and Blondin
testified as to why be believed an ex parte warrant of
arrest was required. I was not persuaded that a basis
existed for issuing an ex parte warrant, which would have
involved. directing the U.S. Marshal to arrest the two
children, without any prior warning or notice to their
mother. Accordingly, I denied the application for an arrest
warrant and instead issued an order to show cause returnable
two days later, on June 24th. (22 Jun 98 Tr. 19-21).
014 Dubois was served with the order to show cause, albeit
not in a timely fashion. (24 Jun 98 Tr. 2-10). She
nonetheless appeared as ordered on June 24th, and I
appointed counsel to represent her. On June 29th, I
conducted an evidentiary hearing, and both Dubois and
Blondin testified. I also spoke with Marie-Eline, on the
record but in the robing room, outside the presence of her
parents and their attorneys. At the conclusion of the
hearing, I reserved decision.
DISCUSSION
A. The Convention
015 The Convention was adopted in 1980 “to protect
children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to
ensure their prompt return to the State of their habitual
residence.” Convention, Preamble. The Convention is
intended to address the situation where parents involved in
custody disputes wrongfully take their children across
international borders in search of a more sympathetic court.
See Friedrich v Friedrich, 78 F.3d 1060, 1064 (6th Cir.
1996); Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376 (8th
Cir. 1995). The Convention seeks to “restore the
pre-abduction status quo” by providing for the return of the
children to the country of their “habitual residence” for
resolution of the merits of the custody dispute; the court
in the “abducted-to nation” has jurisdiction only to decide
the merits of the “abduction claim.” Friedrich, 78 F.3d at
1063-64; see also Nunez-Escudero, 58 F.3d at 376.
016 The Convention sets certain requirements that must he
met before a petition for the return of a child may be
granted. Dubois concedes that the requirements of the
Convention have been met, FN 01 but she seeks to invoke
Article 13(b) of the Convention, which provides that a court
need not return a child to the country where the child
normally resides if
there is a grave risk that [the child’s) return
would expose the child to physical or
psychological harm or otherwise place the child
in an intolerable situation.
Convention, Art. 13(b). A respondent seeking to invoke Art.
13(b) must prove by clear and convincing evidence that the
exception applies. ICARA 9 4(e)(2)(A), 42 U.S.C.
11603(e)(2)(A). Hence, the issue presented in this case is
whether Dubois has demonstrated, by clear and convincing
evidence, that there is a “grave risk” that returning the
children to France would expose them to “physical or
psychological harm or otherwise place [them] in an
intolerable situation.”
017 The “grave risk” exception must be narrowly construed.
See ICARA 2(a)(4), 42 U.S. C. 11601(a)(4) (“Children who
are wrongfully removed . . . are to be promptly returned
unless one of the narrow exceptions applies.”) (emphasis
added); Stephanie Vullo, The Hague Convention on the Civil
Aspects of International Child Abduction. Commencing a
Proceeding in New York for <* page 127> the Return of a
Child Abducted from a Foreign Nation, 14 Touro L. Rev. 199,
228-29 (1997). In deciding whether to apply the “grave risk”
exception, the court is neither adjudicating the merits of
the underlying custody dispute nor deciding which parent is
more deserving of custody. Rather, the court’s inquiry must
be narrowly focused on whether returning the child would
present a “grave risk” of physical or psychological harm or
an intolerable situation.
018 In making even this narrow inquiry, however, the court
must engage in “some evaluation of the people and
circumstances awaiting [the] child in the country of
habitual residence.” Nunez-Escudero v. Tice-Menley, 58 F.3d
at 3787 see also Rydder v Rydder, 49 F.3d, 369, 373 (8th
Cir. 1995) (noting that district court took into account
fact that both parents were “intelligent, mature, loving
parents”); Panazatou v. Pantazatos, No. FA 960713571S, 1997
WL 614519, at *2-3 (Conn. Super. Ct. Sept. 24, 1997)
(considering parent’s financial resources and ability to
provide support); cf. Tahan v. Duquette, 613 A.2d 486, 489
(N.J. Super. Ct. App. Div. 1992) (court in petitioned
jurisdiction “must be empowered to evaluate the surroundings
to which the child is to be sent and the basic personal
qualities of those located there,” but “[w]ithout engaging
in an exploration of psychological make-ups, ultimate
determinations of parenting qualities, or the impact of life
experiences”). Moreover, the court must keep in mind that,
in drafting Article 13(b), the signatories to the Convention
were of the view that:
the interest of the child in not being removed
from [his or her] habitual residence without
sufficient guarantees of [his or her] stability
in the new environment[] gives way before the
primary interest of any person in not being
exposed to physical or psychological danger or
being placed in an intolerable situation.
Elisa Perez-Vera, Explanatory Report to the Convention,
29. FN02
019 Finally, Article 13 of the Convention provides that:
The judicial . . . authority may also refuse to
order the return of the child if it finds that
the child objects to being returned and has
attained an age and degree of maturity at which
it is appropriate to take account of [the
child’s] views.
Convention, Art. 13. The Explanatory Report explains that
during the drafting of the Convention,
all efforts to agree on a minimum age at which
the views of the child could be taken into
account failed, since all the ages suggested
seemed artificial, even arbitrary. It seemed
best to leave the application of this clause to
the discretion of the competent authorities.
Explanatory Report, 30.
B. Application
020 I find, by clear and convincing evidence, that return
of Marie-Eline and Francois to France would present a “grave
risk” that they would be exposed to “physical or
psychological harm” or that they would otherwise he placed
in an “intolerable situation.” I reach that conclusion for
the following reasons.
021 First, if the children are returned to France, there
is a grave risk that they will be exposed to physical or
psychological harm at the hands of Blondin. In the years
that he lived with Dubois, he repeatedly beat her, often in
the presence of the children. He also beat Marie-Eline.
Blondin repeatedly hit Dubois with a belt, spit on her with
their daughter watching, and twisted an electrical cord
around Marie-Eline’s neck. The situation became so
intolerable in 1993 that Dubois left Blondin’s home with
Marie-Eline and Crispin and lived in shelters for almost a
year. After a reconciliation, the beatings continued.
Blondin beat Dubois even when she was pregnant. The
situation deteriorated to the point again in 1997 when
Dubois <* page 128> felt she had no choice but to leave
France altogether.
022 Blondin denied under oath ever having abused Dubois or
his children, but I am firmly convinced that he was not
telling the truth. Indeed, his testimony was incredible. He
testified, for example, that he had no idea why Dubois left
him in August 1997. (22 Jun 98 Tr. 17; see also 29 Jun 98
Tr. 79). I was puzzled by this testimony at the time, but
it later became apparent that Blondin denied any such
knowledge because he knew, in fact, that she had left him
because of the beatings. His testimony with respect to the
events of 1993 was equally nonsensical. Again in an effort
to deny that he abused Dubois, he stated that Dubois lied
about being a battered spouse in 1993 just so that she could
qualify for and live in a center for battered women. (29 Jun
98 Tr. 77-78). Of course, it makes no sense that anyone
would concoct a story and pretend to be a battered spouse to
qualify to live in a shelter for battered women.
023 In addition, Blondin gave shifting testimony as to
whether he ever hit Marie-Eline or Dubois. He testified
first that he “never” hit Marie-Eline, then that he “might
have given her a slap on the behind,” then that he “very
rarely” spanked Marie-Eline, and then that he did not hit or
spank her at all. (Id. at 74). Likewise, he testified
first that he “never” hit Dubois, then that he may have
slapped her “just in the heat of a dispute,” then that he
never slapped her “in the presence of [the] children,” then
that he never slapped her outside the presence of the
children, and then that he never slapped her even in the
heat of the moment. (Id at 74-75).
024 Blondin also misrepresented or exaggerated facts in
seeking relief from this court. His verified complaint and
ex parte petition represented that a French court, “upon
hearing argument from both sides, granted joint legal
custody to the parties, and physical custody[] to the
petitioner-father” in 1993. (Compl. 6.1) This
allegation implied that the matter was contested and that
Dubois had lost, at least in part. In fact, Blondin later
conceded that there was a reconciliation and Dubois told the
French court she wanted to live with Blondin again. (22 Jun
98 Tr. 10). His attorney initially represented in the
present proceedings that the French court had made a finding
that Dubois had disappeared with the daughter in 1993, when
the document actually showed only that Dubois and Blondin
separated in 1993. (19 Jun 98 Tr. 8-9). Blondin first
represented to this Court during an ex parte hearing that
after Dubois left with Marie-Eline and Crispin in 1993, he
found them in a “young wom[eln’s hostel group. (22 Jun 98
Tr. 9). Later, after Dubois testified, he described it as a
“shelter for abused women” and a “Center for battered
women.” (29 Jun 98 Tr. 77).
025 Second, Dubois and the children appear to have settled
in well in the United states. Less than a year had
transpired from the wrongful taking when the petition was
filed, but returning the children to France now for custody
proceedings would be, extremely disruptive. Dubois has no
financial resources of her own; she and the children are
being supported now by her family, including her brother,
here in the United States. In France, Dubois and the
children would be dependent on Blondin. Under the
circumstances, I would be extremely wary of requiring Dubois
and the children to live in his home. Although one
possibility would be to require Blondin to pay for their
housing elsewhere, he represented to the Court, during
discussions about scheduling a hearing, that he had “no more
money” and could not afford the cost even of airfare to come
back to the United States. (24 Jun 98 Tr. 21-24). Indeed,
he represented to the Court that he had to take out a loan
to pay for his expenses to come to the United States in the
first place. (Id. at 24). Under these circumstances,
requiring Dubois and the children to return to France for
legal proceedings would present a grave risk of
psychological harm or an intolerable situation.
026 Third, although it is by no means dispositive, Marie-
Eline has expressed her desire not to return to France. She
is only seven years old, and I have no doubt that she was
prepared, to a degree, for her appearance before me.
Nonetheless, I believe she was being truthful, and she does
appear to be a bright, articulate young person. While her
preference, by itself, certainly would not be a <* page 129>
basis for not returning her to France, it is a factor that I
may take into account. Cf. Daniel H. v. Catherine Ann O.H.,
N.Y.L.J., p. 32, col. 1 (Fam, Ct. Monroe County Oct. 17,
1996) (concluding that 7-year old lacked “the maturity and
ability to form a rational judgment,” but nonetheless noting
child’s views). Marie-Eline’s testimony — that she,and her
mother left France and came to America because “my daddy was
. . . too trouble for us” and that she did not want to
return to France because “I don’t want my daddy to hit me”
(29 Jun 98 Tr. 16, 17) — is compelling.
027 The Convention recognizes that custody decisions
should be made in the country of habitual residence and it
seeks to deter parents from wrongfully taking their children
across international borders. It therefore grants certain
rights and privileges to a parent who has been victimized by
the unilateral actions of the other parent. Here, however,
Blondin is not the victim. Rather, he created his own
predicament by abusing and victimizing Dubois and the
children. His rights under the Convention therefore must
give way to the “primary interest” of the children not to be
exposed to “physical or psychological danger” or the
“intolerable situation” that would surely exist they if they
are returned to France. Explanatory Report, 2.9.
Accordingly, pursuant to Article 13(b) of the Convention, I
decline to order the return of the children to France.
CONCLUSION
028 For the foregoing reasons, the petition is dismissed,
without costs or fees. The Clerk of the Court is directed to
enter judgment accordingly.
SO ORDERED.
Dated; New York, New York
August 17, 1998
Footnotes
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1. Both the United States and France are signatories to
the Convention. The children are under sixteen years
of age. They were removed from their place of habitual
residence. This removal was “wrongful” because it
occurred without the knowledge or consent of their
father, who had joint custody of the children. The
petition was filed within one year of the wrongful
removal of the children. Convention, Arts. 3, 4, 12;
see generally Brooke v. Willis, 907 F.Supp. 57, 60
(S.D.N.Y. 1995).
2. The United States Department of State, which acts as
the Central Authority for the United States for
purposes of the Convention (see Convention, Art. 11) ,
represents that the Perez- Vera report “is recognized
by the Hague Conference on Private International Law
as the official history and commentary” for the
convention. (Letter from State Dep’t to the Court,
dated June 18, 1998).
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COMMENTS BY William M. HILTON
Attorney At Law
Box 269, Santa Clara, CA 95052-0269
TEL: 408-246-8511 FAX: 408-246-0114
E-Mail: [email protected]
I begin with the following quote:
“If we were screenwriters drafting a script based on the
history of Polanski’s conviction and flight from punishment,
incorporating the civil and criminal aspects of his actions,
we would surely create a scenario where all the characters
get their “just deserts” without regard to the protective
safeguards of the Constitution. However, as jurists, we are
bound by constitutional principles and must apply them
evenhandedly, regardless of our personal opinions of any of
the litigants.”
Doe v. Superior Court (Cal.App. 2 Dist 1 Div 1990)
222 Cal.App.3d 1406, 1411
I have no dispute with the Court’s finding that the children
were “at risk” when they were with the father. The facts,
as set forth in the court’s decision, certainly would show
that the father’s behaviour was, at best, detrimental to the
children.
The court’s finding that Art. 13(b) was properly invoked was
also proper, i.e., that the children would suffer serious
emotional or physical harm or be placed in an intolerable
situation if placed so that the father could get to them.
While an Art. 13(b) finding can alert the court and show a
need for protection of the children, it should not be used,
as was the case here, to defeat the purpose of The
Convention, which is to return the children to their
habitual residence where the bulk of all relevant evidence
concerning their “best interests” can be found.
This basic fact is discussed in No 34 of the Perez-Vera
Report:
“To conclude our consideration of the problems with which
this paragraph deals, it would seem necessary to underline
the fact that the three types of exception to the rule
concerning the return of the child must be applied only so
far as they go and no further. This implies above all that
they are to be interpreted in a restrictive fashion if the
Convention is not to become a dead letter. In fact, the
Convention as a whole rests upon the unanimous rejection of
this phenomenon of illegal child removals and upon the
conviction that the best way to combat them at an
international level is to refuse to grant them legal
recognition. The practical application of this principle
requires that the signatory States be convinced that they
belong, despite their differences, to the same legal
community within which the authorities of each State
acknowledge that the authorities of one of them – those of
the child’s habitual residence – are in principle best
placed to decide upon questions of custody and access. As a
result, a systematic invocation of the said exceptions,
substituting the forum chosen by the abductor for that of
the child’s residence, would lead to the collapse of the
whole structure of the Convention by depriving it of the
spirit of mutual confidence which is its inspiration.”
The key to The Convention is found in the words: “The
practical application of this principle requires that the
signatory States be convinced that they belong, despite
their differences, to the same legal community within which
the authorities of each State acknowledge that the
authorities of one of them – those of the child’s habitual
residence – are in principle best placed to decide upon
questions of custody and access.”
The Court, in its analysis, properly cited various decision
concerning The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on 25 Oct
1980 [The Convention], including Friedrich v Friedrich, 78
F.3d 1060 (6th Cir. 1996) and Tahan v. Duquette, 613 A.2d
486 (N.J. Super. Ct. App. Div. 1992).
It is unfortunate for the operation of The Convention that
the court did not look further into these two cases.
When one looks at Friedrich v Friedrich (6th Cir. 1996) 78
F.3d 1060, 1069 it is found that the court held the
following concerning the application of Art. 13(b):
“Although it is not necessary to resolve the present appeal,
we believe that a grave risk of harm for the purposes of the
Convention can exist in only two situations. First, there
is a grave risk of harm when return of the child puts the
child in imminent danger prior to the resolution of the
custody dispute– e.g., returning the child to a zone of
war, famine, or disease. Second, there is a grave risk of
harm in cases of serious abuse or neglect, or extraordinary
emotional dependence, when the court in the country of
habitual residence, for whatever reason, may be incapable or
unwilling to give the child adequate protection.”
Once there is a showing sufficient to invoke Art. 13(b) one
should then determine whether or not the courts of the
requested state, here France, are “. . . incapable or
unwilling to give the child adequate protection.”
The presumption is that France is capable and willing “. . .
to give the child adequate protection[]” and that the French
court is no less concerned than this Court with the safety
and welfare of children who are the subjects of custody
disputes. Friedrich v Friedrich (6th Cir. 1996) 78 F.3d
1060, 1068; Archambault v Archambault (1990) 407 Mass. 559
[555 N.E.2d 201, 207-208]; Matter of R.L.S. (Okl.App. 4 Div
1994) 879 P.2d 1258, 1263; In re Joseph D. (Cal.App. 4 Dist.
1 Div. 1993) 19 Cal.App.4th 678, 692.
In the case of Marriage of Murray and Tam, Director of
Family Services (ACT) (Australia 1993) 16 Fam LR 982 the
mother fled from New Zealand to Australia due to the threats
to her and the children’s personal safety because of the
father’s involvement in the “Mongrel Mob” in New Zealand.
The Australian courts, rejecting the Art. 13(b) defense,
ordered the return of the children to New Zealand, stating
the following:
“It would be presumptuous and offensive in the extreme, for
a court in this country to conclude that the wife and the
children are not capable of being protected by the New
Zealand Courts or that relevant New Zealand authorities
would not enforce protection orders which are made by the
Courts.” Accord: Lynn and Lynn (New Zealand 1995)
Wellington District Court No FP (085) 354/95.
When it can be shown that the foreign court will not provide
the necessary protection, then the full impact of Art. 13(b)
would apply and the children would not be returned to their
habitual residence. This is seen in the recent case of
Turner v Frowein (Middlesex Sup.Ct. 1998); Docket No
FA87-0084450; 8 International Abduction [USA 1998],
involving Connecticut and The Netherlands. The court
applied this principal of inability to provide protection
when, despite all efforts of the mother, the Netherlands
Courts would take no action. Under these circumstances the
Friedrich test was met and the court properly did not return
the children to their Habitual Residence.
As a minor, but not insignificant point, the court, while
acknowledging that a seven (7) year old really does not meet
the age and maturity criteria of Art. 13, did give
significant weight to the child’s desires. Had the court
read a bit further in Tahan v. Duquette, supra, the court
would have found the following words:
“The failure of the trial judge to interview the child was
not plain error. R. 2:10-2. To the contrary, an interview
with the judge, under the circumstances before the court,
could not have served a useful purpose. Article 13 of the
Convention excuses the duty to return if a child of
appropriate age and maturity objects. This standard simply
does not apply to a nine-year old child.”
In sum the court should have directed counsel to inquire as
to the protection that could be given to the children by the
French courts and once advised the court should have formed
proper return orders that would protect the children during
the period of return and prior to the matter being heard in
France.
The requested court could have, for example made an order
that an order of protection be issued by the French courts
before the children were to leave the requested state. The
authority for this action is clearly seen in the language of
Art. 7(h): “to provide such administrative arrangements as
may be necessary and appropriate to secure the safe return
of the child;”
None of this was done and instead the court based its
decision on that which is not allowed, a determination of
the best interests of the children.