Hemard v Hemard (N.D.Texas 1995)Civil Action File Number 7-94-CV-110X
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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
CIVIL ACTION, FILE NUMBER 7-94CV-110-X
ERICK MARIE HEMARD )
Plaintiff )
)
) ORDER DIRECTING RETURN OF
V. ) MINOR TO COUNTRY OF
) HABITUAL RESIDENCE
JACQUELINE PILE HEMARD )
Defendant )
On the 8th day of February, 1995, the Court heard Plaintiff’s
Petition for Return of the Child pursuant to the Hague Contention.
Plaintiff, ERICK MARIE HEMARD, appeared in person and by
attorneys, Jody L. Johnson and Cyndi L. Schenk.
Defendant, JACQUELINE PILE HEMARD, appeared in person and by
attorneys, Bruce Martin and Eleanor Bibb.
All matters of law and of fact were submitted to the court,
and the Court heard the evidence and considered the pleadings and
argument of counsel. The record of testimony was duly reported.
This order is made under the authority of 42 U.S.C. 11603(a),
conferring upon this Court original and concurrent jurisdiction
with federal district courts of the United States.
The Court finds that the habitual residence of the minor
child JENNIFER JACQUELINE HEMARD is France.
IT IS ORDERED that, pursuant to the provisions of The
Convention on the Civil Aspects of International Child Abduction,
done at the Hague on 25 October 1980 and/or the International
Child Abduction Remedies Act, 42 U.S.C. 11601 et seq, Christian
Hemard (paternal uncle) and France Pile (maternal aunt), shall
return the minor child, JENNIFER JACQUELINE HEMARD, who was born
on May 10, 1985, to the sovereign nation of France on or before
February 10, 1995. Christian Hemard and France Pile are ORDERED to
board with JENNIFER JACQUELINE HEMARD on Northwest Flight #696 at
the Dallas – Fort Worth Airport on February 10, 1995, which
departs at 4:00 p.m. for Detroit, Michigan, USA, and are further
ORDERED to board with JENNIFER JACQUELINE HEMARD on Northwest
Flight #50 at the Detroit Metropolitan Airport on February 10,
l995, which departs the Detroit Metropolitan Airport at 9:00 p.m.
and arrives at Charles De Gaulle Airport in Paris, France on
February 11, 1995 at 10:30 a.m.
Upon arrival in Paris, France, Christian Hemard is ORDERED to
directly take the child, JENNIFER JACQUELINE HEMARD, to his
residence, 17 Avenue des Etats-Unis, 78000 Versailles FRANCE, and
to retain possession of the child until such time as the Tribunal
de Grande Instance de Paris makes further orders.
The injunction granted below shall be effective immediately
and shall be binding on ERICK MARIE HEMARD, JACQUELINE PILE
HEMARD, CHRISTIAN HEMARD, FRANCE PILE; on their agents, servants,
and attorneys; and on those persons in active concert or
participation with them who receive actual notice of this ORDER by
personal service or otherwise. The requirement of a bond is hereby
waived.
IT IS ORDERED that ERICK MARIE HEMARD, JACQUELINE PILE
HEMARD, CHRISTIAN HEMARD, FRANCE PILE; their agents, servants,
attorneys, and employees, and those persons in active concert or
participation with them who receive actual notice of this order by
personal service or otherwise are enjoined from:
Removing the child, JENNIFER JACQUELINE HEMARD, from the
jurisdiction of this court for any purpose other than returning
the child directly to Paris, France pursuant to this ORDER.
IT IS FURTHER ORDERED that the suit affecting the
parent-chIld relationship pending in the 89th Judicial District
Court of Wichita County, Texas, being cause No. 143,428-C, styled
“In the Interest of Jennifer Jacqueline Hemard, A Child”, shall be
dismissed immediately upon the entry of this order.
IT IS FURTHER ORDERED that each party shall be responsible
for payment of his/her own attorney’s fees and costs.
THEREFORE, TO ANY PEACE OFFICER IN THE STATE OF TEXAS OR TO
ANY FEDERAL OFFICER:
You are hereby ORDERED AND COMMANDED to enforce the instant
ORDER ordering Christian Hemard to remove the above named minor
from the United States of America and return her to France, and to
allow Christian Hemard and France Pile to accompany her to France,
giving said Christian Hemard the right to have said child in his
lawful possession upon arrival in Paris, France and while in the
united States, for the purposes described herein.
This Order RENDERED on February 8, 1995 and ministerially
signed on the date below. The Court finds that more specific
findings of fact and conclusions of law with be forthcoming.
SIGNED this 9th day of February, 1995
/s/ Joe Kendall
______________________
The Honorable Joe Kendall
United States District Judge
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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
CIVIL ACTION, FILE NUMBER 7-94CV-110-X
ERICK MARIE HEMARD )
Plaintiff )
)
) FINDINGS OF FACT AND
V. ) CONCLUSIONS OF LAW
)
JACQUELINE PILE HEMARD )
Defendant )
Pursuant to the hearing in the above referenced matter on February
8, 1995, the Court makes the following findings of fact and
conclusions of law:
FINDINGS OF FACT
1. Jennifer Jacqueline Hemard was born in France on May 10, 1985.
2. Jennifer Jacqueline Hemard is a French Citizen.
3. Jennifer Jacqueline Hemard’s parents, Jacqueline Pile Hemard
and Erick Marie Hemard, are French citizens.
4. Jennifer Jacqueline resided continuously in France from the
date of her birth until on or about October 15, 1993.
5. On or about August 1, 1993, Jacqueline Pile Hemard separated
from her husband, Erick Marie Hemard, and left Jennifer Jacqueline
Hemard in the care, custody and control of Erick Marie Hemard.
6. Jacqueline Pile Hemard did not exercise visitation with the
child during the month of August 1993.
7. Jacqueline Pile Hemard exercised visitation with the child on
Wednesdays and weekends during the period September 1, 1993 until
on or about October 15, 1993.
8. During the period August 1, 1993 until on or about October 15,
1993, Erick Marie Hemard was responsible for the care of the
child.
9. On or about October 15, 1993, Erick Marie Hemard caused to be
served a Writ of Summons of Divorce Conciliation in Paris, France
on Jacqueline Pile Hemard claiming adultery, abandonment, and
seeking the family domicile and exclusive custody of the child,
Jennifer Jacqueline Hemard. The Court finds that Jacqueline Pile
Hemard had actual notice of these proceedings and the relief being
sought by her husband.
10. On October 15, 1993 Jacqueline Pile Hemard picked up the child
from her school, Sainte Ursule, in Paris, France.
11. Jacqueline Pile Hemard told Erick Marie Hemard that she would
return the child to Erick Marie Hemard on October 16, 1993 at
noon.
12. Jacqueline Pile Hemard intentionally failed to return the
child on October 16, 1993 at noon, wrongfully abducted the child,
and left France.
13. Jacqueline Pile Hemard had notice of the institution of the
divorce proceedings in Paris, France filed by Erick Marie Hemard
prior to the hearing on November 3, 1993 in the Paris Court.
14. Jacqueline Pile Hemard wrongfully removed the child from
Paris, France on October 15, 1993 to Wichita Falls, Texas, U.S.A.
without the knowledge or consent of Eric Marie Hemard. The Court
finds the motive for the abduction and flight was to evade the
jurisdiction of the French judiciary in the divorce proceedings
instituted on or about October 15, 1993.
15. Jacqueline Pile Hemard concealed the location of the child
until on or about September 23, 1994 when she filed a child
custody suit in the state court of Wichita County, City of Wichita
Falls, Texas, U.S.A.
16. There is insufficient believable evidence to support a finding
that it is more likely so than not so that the child has been
sexually abused by Erick Marie Hemard.
17. The Court finds as suspect the “counseling” the child received
and the conclusions reached by the witness Monica Perkins who
found “sexual abuse” from what the Court concludes to be benign
behaviors by the child. The child, Jennifer Jacqueline Hemard, who
has been the recipient of much pressure, now says “Erick” (her
father) “touched” her but she told no one of this until she was in
the United States and had been questioned about this by her
mother, Jacqueline Pile Hemard.
18. Erick Marie Hemard filed an Application for Request for Return
of Jennifer Jacqueline Hemard with the Office of Citizens
Consular, Department of State, Washington, D.C. on or about August
3, 1994.
19. On June 7, 1994 a final divorce was granted in Paris, France
awarding sole custody of Jennifer Jacqueline Hemard to Erick Marie
Hemard.
20. In July, 1994, Erick Marie Hemard received information from
the French Police that Jacqueline Pile Hemard and Jennifer
Jacqueline Hemard had entered the United States.
21. In November 1993, Erick Marie Hemard filed a complaint against
Jacqueline Pile Hemard for the kidnapping of Jennifer Jacqueline
Hemard.
22. Jacqueline Pile Hemard has not allowed Jennifer Jacqueline
Hemard to have contact with any friends or relatives in France
since on or about October 15, 1993.
23. Jacqueline Pile Hemard told Jennifer Jacgueline Hemard that
Erick Marie Hemard is not her real father.
24. Jacqueline Pile Hemard and Jennifer Jacqueline Hemard lived
with Ali Bourequat in Wichita Falls, Texas from approximately
October 18, 1993 until February 8, 1995.
25. Jacqueline Pile Hemard allowed Jennifer Jacqueline Hemard to
call Ali Bourequat “Papa” and to use his last name.
26. Erick Marie Hemard was diligent in attempting to locate
Jennifer Jacqueline Hemard and seek her return.
II.
CONCLUSIONS OF LAW
1. Jennifer Jacqueline Hemard was an habitual resident of France
at the time of her removal from France.
2. Erick Marie Hemard had custody rights with respect to Jennifer
Jacqueline Hemard at the time of her removal from France.
3. Erick Marie Hemard was exercising his custody rights with
respect to Jennifer Jacqueline Hemard at the time of her removal
from France.
4. Jacqueline Pile Hemard wrongfully removed and/or retained
Jennifer Jacqueline Hemard from France.
5. A period of less than one year elapsed from the date of the
wrongful removal and/or retention until the date of the
commencement of proceedings before the administrative authority in
the United States.
6. The time for commencing proceedings before the judicial
authority was tolled pending the location of the child.
7. There is no clear and convincing evidence that there is a grave
risk that the return of Jennifer Jacqueline Hemard to France would
expose her to physical or psychological harm or to an intolerable
situation.
8. There is no clear and convincing evidence that the fundamental
principles of the United States relating to the protection of
human rights and fundamental freedoms prevent return of the child
to France.
9. Although this is a very bright nine year old child, under all
of the circumstances it is not appropriate to consider her views
with respect to being returned as dispositive.
10. Without question, the French judiciary should adjudicate any
and all matters in controversy between these parties, all of whom
are French citizens.
IT IS SO ORDERED.
SIGNED THIS 15th DAY OF FEBRUARY, 1995.
/s/ Joe Kendall
____________________________
JOE KENDALL
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
CIVIL ACTION, FILE NUMBER 7-94CV-110-X
ERICK MARIE HEMARD )
Plaintiff )
)
) FINAL JUDGMENT
V. )
)
JACQUELINE PILE HEMARD )
Defendant )
In accordance with the Court’s announcement in open court at the
hearing in the above referenced matter on February 8, 1995, and
based on the Court’s findings of fact and conclusions of law
entered on February 15, 1995, the Court hereby
ORDERS and ADJUDGES that the Petition for Return of Child Pursuant
to the Hague Convention Treaty, which was filed with this Court on
November 16, 1994, is in all things GRANTED.
The Clerk of Court is instructed to close this case.
IT IS SO ORDERED.
SIGNED THIS 15th DAY OF FEBRUARY, 1995.
/s/ Joe Kendall
____________________________
JOE KENDALL
UNITED STATES DISTRICT JUDGE