USA – NJ – TAHAN – 1991


FRED TAHAN, Plaintiff-Respondent.



252 N.J. Super. 554 [600 A.2d 472]

24 Sep 1991, Submitted; 18 Nov 1991, Decided

NOTCE: Approved for Publication 18 Dec 1991.

PRIOR HISTORY: On appeal from the Superior Court, Camden County,
Chancery Division, Family Part.

COUNSEL: John T. Kubit, attorney for appellant (Mr. Kubit on the
brief). Teich, Groh and Frost, attorneys for respondent (Carol
Oswald on the brief).

JUDGES: Before Judges Pressler, Skillman and D’Annunzio.

OPINION: The opinion of the court was delivered by D’ANNUNZIO,

At issue in this custody dispute is the application of the
Convention on the Civil Aspects of international Child Abduction,
adopted at The Hague on October 25, 1980 (hereafter referred to as
the Convention). A copy of the Convention is attached to the
opinion as an appendix. It is also published at 51 Fed. Reg. 10498
(1986). The United States of America deposited its instrument of
ratification of the Convention on April 29, 1988. That same year,
Congress established procedures to implement the Convention in the
United States. 42 U.S.C.A. Sec. 11601 et seq. Appellant, Michelle
Duquette (hereafter referred to as the mother) appeals from a
December 10, 1990 order awarding custody of her child to her
former husband, the respondent Fred Tahan (hereafter referred to
as the father). She contends that the court erred when it failed
to return the child to her, a resident of Canada, pursuant to the
Convention. FN1

It is necessary to present a detailed chronology of the
events which led to the order on appeal. On July 1, 1987, the
parties, pending a divorce, entered into a consent judgment for
joint custody of their child with each party enjoying physical
custody on a “fourteen week alternating schedule.” Pursuant to
this consent order, the mother was to have physical custody from
October 3, 1987 through January 9, 1988 at which time the child
was to be returned to the father to begin a fourteen week period
of custody. This interim arrangement was to be effective until
July 23, 1988. If at that time the parties had not come to a
permanent agreement regarding the child’s custody, then “the court
shall be notified and a hearing will be held in August, 1988.”

In January, 1988, the mother refused to return the child to
the United States from her home in Canada. In February, 1988, the
father filed an action in a court in the Province of Quebec for
exemplification of the July 1, 1987 consent order. On June 24,
1988, a divorce judgment was entered in New Jersey terminating the
parties’ marriage and incorporating the July 1, 1987 consent

In January, 1989, the action in Quebec was converted into a
de novo custody hearing. It appears from a January 27, 1989 record
of the Canadian court titled “Hearing Report” that the father
voluntarily converted the Canadian action for exemplification to a
plenary custody action. The translation of the Canadian court
record states:

Agreement Decided Upon in Chamber:

There is a withdrawal of the submission upon the
request of exemplification. This procedure becomes a
request for child custody with accompanying visitation

The request is adjourned until April 14, 1989 in
Rowyn-Moranda or until any other prior date known or
decided upon.

During the adjournment, the child Kareem will stay with
the father in New Jersey.

The petitioner [father] promises to return the child to
the defendant domicile of the Mrs. on January 30, 1989
at 6:00 p.m.

Request is made to the parties to conform to the above.

This record indicates that both parties were represented by
counsel. After a trial in which the father participated with
counsel, the Canadian court entered a judgment dated May 5, 1989
warding custody to the mother. The judgment recited that
originally the proceedings were for “the exemplification or
enforcement of a judgment of the Superior Court granted in the
State of New Jersey.” It noted that the child will be six years
old next July and that “it will be in the child’s interest to
attend school on a yearly regular basis rather than three month
periods. The parties were therefore invited and they accepted to
consider the proceedings as a joint petition for custody.” The
court granted custody to the mother from September to June, with
summer visitation for the father. The father filed an appeal from
this judgment with the appropriate Canadian appellate court.
Thereafter, the father abandoned the appeal and his Canadian
lawyers petitioned the Canadian appellate court for an order
relieving them of their responsibilities.

On August 9, 1989, while the child was visiting him in New
Jersey, pursuant to the Canadian judgment, the father, proceeding
by Order to Show Cause, commenced an action in New Jersey for
permanent custody of the child. The father’s application was
determined in New Jersey on the papers, resulting in an order
dated November 30, 1989, awarding sole custody to the father and
prohibiting removal of the child from New Jersey.

In March, 1990, the mother moved for an order directing
return of the child to her pursuant to the Convention and
implementing federal legislation. That application was argued 20,
1990. After extensive colloquy, the trial court ruled:

THE COURT: I think the most I can [sic] for you at this
time, Mr. Kubit, is tell you that if you want to
contest the continuing jurisdiction of the Court you
may do so, but on a hearing. I’m not going to do it on
the papers. I’m going to require the lady to come down
here. You can present any experts you want with regard
to Canadian law and the Canadian proceedings. But I’m
not satisfied that if I were to, at this time, make a
further order and say that the child should go back to
Canada because of the Canadian court ruling, I’m not
satisfied Mr. Tahan is ever going to see the child

* * * *

But I am going to indicate at this time that this Court
does have continuing jurisdiction on the Tahan matter,
that the order I made previously stands. I will afford
the lady an opportunity to come down here and be heard
on any aspect of the proceeding including the issue of

Based on this ruling, the court entered an order dated May
14, 1990:

1. This court retains continuing jurisdiction of the
custody issue with regard to Kareem Tahan.

2. The prior Order of this court dated November 30,
1989 shall remain in full force and effect.

3. This court will reconsider upon hearing and the
testimony of the parties any issue raised by the
defendant, including a jurisdictional argument.

Inexplicably, the motion judge’s ruling did not address
applicability of the Convention, though the mother expressly
relied upon it as the basis for relief. FN2

[1] On October 12, 1990, the mother renewed her application
for custody, relying on the Convention. On November 15, 1990, in a
lengthy oral opinion, the court determined that the mother’s
application was beyond the one-year limitation period contained in
the Convention. The court measured the one-year period from June
24, 1989, which apparently is the date the child commenced summer
visitation with his father. The court stated:

The child in this instance was present in New Jersey
for more than one year prior to the Defendant’s present
application. Even if viewed as a continuation of the
March 1990 application, Defendant should have filed
through additional pleadings, as permitted by court
order, not later than June 24, 1990. Alternatively, if
Defendant’s present application is a new application
and not an extension of the March/April proceedings,
Defendant’s proper recourse was to appeal this Court’s
decision contained in the order dated May 14, 1990.

Thus, this Court can conclude that consistent with the
language of the Federal legislation, this Court is not
bound to return Kareem to Canada and relinquish
jurisdiction to the Canadian court.

We disagree and reverse.

The mother’s application under the Convention was first made
within a few months of the father’s August 1, 1989 application for
custody. She renewed her application in March 1990, still within
one year of the child’s return to the United States, and well
within one year of the father’s August 9, 1989 expression of his
intent to retain custody contrary to the Canadian judgment. The
record establishes that the December 10, 1990 order resulted from
a continuation of the application filed on March 23, 1990. This is
so because on April 20, 1990 the motion judge stated that he did
not want to decide the issue on the papers; he wanted a plenary
hearing. The judge declared: “I will afford the lady an
opportunity to come down here and be heard on any aspect of the
proceeding including the issue of jurisdiction.” The May 14, 1990
order reflects the provisional character of the ruling. It did not
specifically deny the mother’s application; it ordered that the
November 30, 1989 order “shall remain in full force and effect”;
it retained jurisdiction; and, it provided for reconsideration
“upon hearing and the testimony of the parties.” FN3

[2] The Convention was adopted “to secure the prompt return
of children wrongfully . . . retained in any Contracting State,”
and “to ensure that rights of custody . . . under the law of one
Contracting State are effectively respected in the other
Contracting State.” Convention art. 1a and b. Retention of a child
is wrongful under the Convention “where it is in breach of rights
of custody attributed to a person . . . under the law of the State
in which the child was habitually resident immediately before the
. . . retention.” Convention art. 3a. In the present case the
father’s retention of custody after expiration of his right of
summer visitation violated the Canadian custody decree. The
father’s contention that the Canadian court lacked jurisdiction to
award custody to the mother is without merit. The orders and
judgments of the Canadian court recite the father’s voluntary
submission to the court’s jurisdiction. The record of the Canadian
custody trial and other circumstantial evidence corroborate the
father’s voluntary submission of the custody issue to Canada’s
jurisdiction. The New Jersey trial judge so found in his November
15, 1990 opinion, and his finding on that issue is supported by
substantial credible evidence in the record. Rova Farms Resort v.
Investors Ins. Co., 65 N.J. 474, 484 (1974).

The New York Supreme Court reached the same conclusion in
Sheikh v. Cahill, 145 Misc.2d 171, 546 N.Y.S.2d 517 (Sup. Ct.
1989) under facts remarkably similar to the present case. In
Sheikh, the mother had taken the child to England in violation of
a custody order of a New York court. The father, upon locating the
mother and child, went to England where he commenced a wardship
proceeding in the High Court of Justice Family Division.
Eventually the English court awarded custody to the mother and
granted the father visitation rights in the United States. During
one of the child’s visits, the father refused to return the child
to the mother in London.

Plaintiff argued in New York that the Convention did not
apply because the English court’s decree, being contrary to the
earlier New York custody decree, was a nullity. This argument was

The problem with this analysis is that plaintiff did
not take this court’s order to the High Court of
Justice to petition for enforcement under the Hague
Convention. Rather he commenced a wardship proceeding
in the High Court of Justice. He thereby submitted
himself to the jurisdiction of the foreign court so
that it could make a de novo custody award in part
based upon defendant’s actions in New York. Not being
satisfied with the results of that strategy, plaintiff
cannot now come back to this court to ask it to ignore
the custody/visitation decision and order of a court of
a Hague convention cosignatary nation which was
subsequent to the decision and order of this court.
Plaintiff’s remedies lie in the appellate procedures of
the courts of the United Kingdom not a collateral
attack in the New York State courts.

Id. at 175, 546 N.Y.S.2d at 520. The court concluded that the
father wrongfully had retained his child after expiration of his
visitation period and ordered the child’s return to his mother as
required by the Convention.

[3] In the present case the child was “habitually resident”
in Canada “immediately before the removal or retention.”
Convention art. 3a. The father’s retention of the child in New
Jersey violated the Canadian custody order and, therefore, was “in
breach of rights of custody attributed to a person [the mother] .
. . under the law of the State [Canada]” of the child’s habitual
residence. Ibid. Cf. Meredith v. Meredith, 759 F.Supp. 1432 (D.
Ariz. 1991) (mother had mere physical possession of child in
England and no legal rights of custody; England not child’s
habitual residence, therefore, Hague Convention not applicable).

If a child has been wrongfully retained and “a period of less
than one year has elapsed from the date of the wrongful . . .
retention” to the commencement of proceedings for the child’s
return, “the authority concerned shall order the return of the
child forthwith.” Convention art. 12. There are, however,
exceptions to the Article 12 requirement.

Article 13 provides:

Article 13

Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of
the requested State i not bound to order the return of
the child if the person, institution or other body
which opposes its return establishes that —

a. the person, institution or other body having the
care of the person of the child was not actually
exercising the custody rights at the time of removal or
retention, or had consented to or subsequently
acquiesced in the removal of retention; or

b. there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.

The judicial or administrative authority may also
refuse to order the return of t he 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 his views.

In considering the circumstances referred to in this
Article, the judicial and administrative authorities
shall take into account the information relating to the
social background of the child provided by the Central
Authority or other competent authority of the child’s
habitual residence.

[4] The President of the United States, “by and with the
Advice and Consent of the Senate” has the power to make treaties.
U.S. Const. art. II, Sec. 2, cl.2. Treaties made under the
authority of the United States “shall be the supreme Law of the
Land.” U.S. Const. art. VI, cl.2. Missouri v. Holland, 252 U.S.
416, 64 L.Ed. 641 (1920). See K.S.B. Tech. Sales v. No. Jersey
Dist. Water Supply, 75 N.J. 272, 280-81 (1977). ” A state law
must yield when it is inconsistent with or impairs the policy or
provision of a treaty.” Ibid.. Contemporaneously with ratification
of the Convention by the United States, Congress adopted
procedures to implement it. 42 U.S.C.A. Sec. 11601 et. seq. See
generally Matter of Mohsen, 715 F.Supp. 1063 (D. Wyo. 1989). The
implementation statute grants to state courts and United States
district courts “concurrent original jurisdiction of actions
arising under the Convention.” 42 U.S.C.A. Sec. 11603(a). The
statute requires that the court in which an action under the
Convention is brought “shall decide the case in accordance with
the Convention,” 42 U.S.C.A. 11603(d). Thus, if a petitioner
establishes the prerequisites to invocation of the Convention, its
application is mandatory and the child must be returned, subject
only to the exceptions contained in Article 13. Sheikh v. Cahill,
supra. The statute provides that a person opposing the return of a
child “has the burden of establishing – (A) by clear and
convincing evidence that one of the exceptions set forth in
Article 13b . . . of the Convention applies.” 42 U.S.C.A.
11603(e)(2)(A). FN4

We conclude that the mother timely applied for return of the
child under the Convention and that the Convention is applicable
because Canada was the child’s habitual residence and the father
wrongfully retained the child after his 1989 summer visitation.
The case must be remanded to the trial court to determine the
applicability of the exceptions contained in Article 13b,
particularly the second paragraph of that subarticle.

Reversed and remanded for further proceedings consistent with
this opinion.

[Note: In the Original, not included in this file]

1. Canada also ratified the Convention in 1988.

2. This was the second time the motion judge did not consider the
Convention’s applicability. In his oral opinion delivered on
November 15, 1990, the judge stated that in response to the
father’s application for custody heard in October, 1989, defendant
asserted her right to custody under the Convention. Transcript,
Nov. 15, 1990, p. 9.

3. Arguably, the November 30, 1989 order was interlocutory because
it did not decide the outstanding issue of visitation in light of
the award of custody to the father.

4. Article 12 also contains an exception that is applicable only
if the proceedings under the Convention have been commenced after
one year has expired. In that event the court need not order the
child’s return if “it is demonstrated that the child is now
settled in its new environment.” Ibid. The burden of establishing
the Article 12 exception is by a preponderance of the evidence. 42
U.S.C.A. Sec. 11603(e)(2)(B).