NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ONOPINIONS
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5516-91T2F
FRED TAHAN, FILING DATE
APPELLATE DIVISION
Plaintiff-Appellant, SEP 18 1992
v.
MICHELLE DUQUETTE,
Defendant-Respondent.
Argued September 15, 1992 – Decided September 18, 1992
Before Judges Pressler, R. S. Cohen and Kestin.
On appeal from the Superior Court, Chancery Division, Family Part,
Camden County.
Carol Oswald argued the cause for appellant (Teich, Groh and
Frost, attorneys; Ms. Oswald on the brief).
John T. Kubit argued the cause for respondent.
The opinion of the court was delivered by KESTIN, J.A.D.
In a prior appeal in this matter, Duquette v. Tahan (App. Div.
1991) 252 N.J. Super. 554 [600 A.2d 472], we held that the
Convention on the Civil Aspects of International Child Abduction,
adopted at The Hague on October 25, 1980 (the Convention), was
effective in the United States as a treaty and applied to the
parties. The case was remanded for a limited purpose: “to
determine the applicability of the exceptions contained in Article
13b, particularly the second paragraph of that subarticle.” Id. at
p. 563.
The Convention requires the return of a child to the place in
which the child habitually resided immediately before a wrongful
removal or retention. We determined that the plaintiff, Fred
Tahan, was obliged under the terms of the Convention and the
statute implementing it, 42 U.S.C.A S 11601 et seq., to return the
child to the defendant, Michelle Duquette, in the Province of
Quebec. Under the Convention, the merits of a custody dispute are
to be decided in the place of habitual residence by a tribunal
with subject matter jurisdiction.
Article 13 of the Convention, however, excuses the duty to return
under specified circumstances. One of these, set out in
subparagraph b, 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.” In remanding, it was
our expectation that this issue would be resolved promptly and
that the situation of the parties would, juridically at least, be
quickly stabilized. The record discloses, instead, that the
single, limited issue on remand was not addressed until more than
seven months had expired.
On June 24, 1992, the proceeding opened with the court’s request
for an offer of proof from the plaintiff. Counsel responded that
plaintiff would rely upon the testimony of four witnesses. A
court-appointed clinical psychologist who had prepared a
psychological and bonding evaluation of the parties and the child
would testify concerning the subject matter of his report. The
plaintiff himself and his present wife would also testify,
addressing the child’s “dreams and his desires, his nightmares and
fears”, as well as his family relationships. The fourth person the
plaintiff proposed to call was the child’s teacher during the
preceding school year “who has probably spent more time with [the
child] in the last nine months than anyone other than his father,
his step-mother and his baby sister.” The purpose of all the
foregoing testimony, according to counsel, was to give the court
an opportunity “to consider how this child will be affected by the
decision today…. We have to look at the psychological harm that
[the child] will suffer….” Counsel noted that the motivations of
the parties would be explored, and concluded: “the clear and
convincing evidence … will show that there is a grave risk of
psychological harm to [the child] if this court disrupts his life
now by compelling his return to Canada.”
After hearing the response of defense counsel, the trial court
ruled that the Article 13b inquiry, concerning physical or
psychological harm or otherwise placing the child in an
intolerable situation, was not intended to cover factual matter
which was subject to being considered in a plenary custody
hearing. To do so, the trial judge opined, would be to usurp
jurisdictional prerogatives reserved by the Convention to the
courts of Quebec. The court ruled, accordingly, that the proffered
testimony would not be heard. The trial court went on to describe
the Article 13b inquiry as being limited to the question whether
there exists in the place of habitual residence such “internal
strife” or unrest as to place the child at risk. The trial judge
explained that, in his view, the focus of the Article 13b inquiry
was exclusively upon the jurisdiction involved and not upon the
individuals.
The court ordered the child to be turned over to the defendant for
return to Canada two days later. The trial court denied a stay
pending appeal. The next day, we stayed the order pending appeal
and subsequently denied defendant’s motion to vacate the stay. We
now affirm the ruling of the trial court and vacate the stay. The
trial court shall, within ten days, enter an appropriate order
establishing the details concerning the early return of the child
to the defendant.
We agree with the trial judge that the Article 13b inquiry was not
intended to deal with issues or factual questions which are
appropriate for consideration in a plenary custody proceeding.
Psychological profiles, detailed evaluations of parental fitness,
evidence concerning lifestyle and the nature and quality of
relationships all bear upon the ultimate issue. The Convention
reserves these considerations to the appropriate tribunal in the
place of habitual residence, here Canada, specifically Quebec. No
court on a petition for return should intrude upon a foreign
tribunal’s subject matter jurisdiction by addressing such issues.
WMHFN-1
Nevertheless, it is clear that Article 13b requires more than a
cursory evaluation of the home jurisdiction’s civil stability and
the availability there of a tribunal to hear the custody
complaint. If that were all that were required,the drafters of
the Convention could have found a clear, more direct way of saying
so.
Although we are not bound by the decisions of courts in other
states or by the manner in which a treaty has been interpreted in
other nations, Ex parte Charlton (D. N.J. 1911) 185 F. 880, 886 ,
aff’d 229 U.S. 447 (1913) [33 S. Ct. 945, 57 L. Ed. 1274], a
proper regard for promoting uniformity of approach in addressing a
treaty of this kind requires that the views of other courts
receive respectful attention. WMHFN-2 We are satisfied from our
review of cases from various American and foreign jurisdictions
cited by the parties that this precise issue has not been squarely
addressed in an authoritative manner. We are satisfied further
that the view we express on this question comports with conceptual
principals embodied in the Convention which have informed the
decisions of other courts in interpreting and applying the
Convention.
To hold, as the trial court did, that the proper scope of inquiry
precludes any focus on the people involved is, in our view, too
narrow and mechanical. Without engaging in an exploration of
psychological make-ups, ultimate determinations of parenting
qualities, or the impact of life experiences, a court in the
petitioned jurisdiction, in order to determine whether a realistic
basis exists for apprehensions concerning the child’s physical
safety or mental well-being, must be empowered to evaluate the
surroundings to which the child is to be sent and the basic
personal qualities of those located there. The last paragraph of
Article 13 says as much: WMHFN-3
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.
Here, however, the plaintiff indicated no intention to address the
surroundings and those located there in his proofs. Every element
of his proffer went to issues which, under the Convention, may
only be addressed in a plenary custody proceeding in Quebec.
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. FN 1
WMHFN-4
An issue of counsel fee entitlement pursuant to 42 U.S.C.A. Sec.
11606(b) has been raised before us prematurely. No motion for
counsel fees on the appeal, appropriately supported, is presently
before us. R. 2:11-4. Counsel fee applications for proceedings in
the trial court are to be made, in the first instance, to the
trial court. R. 4:42-9(a)(1).
The parties have finally concluded this phase of their legal
dispute over custody and related issues. They may or may not
embark upon yet another phase in Quebec. But the underlying
problems have not been resolved. We urge the parties to understand
that courts in any jurisdiction are poor places to resolve such
fundamental relational problems as child custody. Rules of law and
procedural strictures are no substitute for personal choice in so
intensely personal an issue. Parents who have divorced are
frequently unable to communicate constructively on issues of
importance; so they look to the legal system to resolve their
problems. But no stranger in a judicial robe, however able and
well motivated he or she may be, is equipped to make a decision as
valid as the parents working together might make.
Both Mr. Tahan and Ms. Duquette must come to understand that
security, peace of mind and stability are every child’s right.
Their inability to deal constructively with each other deprives
their son of his due, which is within their power to give.
Professed love is no substitute where it results in turmoil and
uncertainty for the child who is pulled in opposite directions by
his parents. This child will receive what he desperately needs in
this regard only if both parties are genuinely prepared to
subordinate their individual needs to the best interests of the
child and begin to communicate with each other solely for the
benefit of the child. We urge the parties to make an effort to
resolve this matter between themselves with professional
assistance. Otherwise, there is a substantial risk that they will
doom their child to a future of conflict, sadness and certain
psychological harm.
Affirmed. We remand to the trial court for entry of such orders
as are necessary to effectuate this decision. We do not retain
jurisdiction.
DECISIONAL FOOTNOTES
————————
1. Plaintiff has moved to supplement the record with a
certification of the court-appointed psychologist who
evaluated the parties and the child. The certification
endeavors to establish that this nine-year old child
possesses the requisite maturity to lodge an effective
objection to his return to Canada. The motion to supplement
the record is granted. After carefully reviewing the
certification submitted, we have determined that the material
offered does not establish the proposition which it seeks to
advance.
Wm. M. Hilton FOOTNOTES
——————–
1. The view expressed by the reviewing court is in accord with
the vast majority, if not all, decisions that have reached
this issue.
2. While it would appear that this has been the practice of
other courts, this is the first court to state that decisions
of other courts are to be considered. See also 9 Uniform
Laws Annotated (ULA) 1(9): The general purposes of [the
Uniform Child Custody Jurisdiction Act] are to make uniform
the law of those states which enact it. See also various
cases cited for this purpose, eg, In re Guardianship of
Donaldson (1986) 178 Cal.App.3d 477, 488 [223 Cal.Rptr. 707,
712].
3. This appears to state that, while it is proper to consider
some of the issues that would be raised in a “Best Interest”
hearing, these issue are to be limited to those from the
Habitual Residence and are to be used solely for the purposes
of a determination under Art. 13(b). Does this also state
that one may only conisder issues that were present at the
time of the wrongful removal/retention? It certainly is
clear that issues relating to the interaction of the child
and the forum of the requested state are not to be considred
and to that extent the judge in the court of first instance
was correct.
4. The Court of Appeal [See Decisional Footnote 1] did consider
the report from a Mental Health Professional in arriving at
this decision. The summary dispositon of this issue is
probably more in keeping with the reality of life in a
family: A nine year old child gets to decide if the ice
cream is choclate or vanilla, but does not get to decide if
it will have ice cream. For a contra view, with very special
cirumstances, see S v S [1992] High Court of Justice, 17 Jan
1992, in HILTON HOUSE BBS as INRECSS.UK.