SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION-FAMILY PART
COUNTY OF CAMDEN
DOCKET NO FM-18356-88
A.D. NO. A2023-90 T3
Fred Tahan v Michelle Duquette
TRANSCRIPT OF RECORDED PROCEEDINGS
Superior Court of New Jersey
Hall of Justice
Camden, New Jersey
24 Jun 1992
BEFORE THE HON. VINCENT D. SEGAL, J.S.C.
Appearances:
Carol Oswald, Esq.,
(Teich, Groh and Frost)
on behalf of Fred Tahan.
John T. Kubit, Esq.,
on behalf of Michelle Duquette
COLLOQUY
THE COURT: This is the matter of Fred Tehan versus Michelle
Duquette, docket number is FM-18356-88. Counsel your appearances
please.
MS OSWALD: Carol Oswald, of the firm Teich, Groh and Frost,
representing plaintiff Fred Tahan.
MR. KUBIT: John Kubit representing Michelle Duquette.
THE COURT: Is counsel ready to proceed in this matter?
MS OSWALD: Yes, your Honor.
MR KUBIT: Yes, your Honor.
THE COURT: Alright, is there a concession that the burden of
going forward is with Miss Oswald and her client?
MR KUBIT: Yes, I believe it is, your Honor.
MS OSWALD: It’s conceded.
THE COURT: And do you understand that that burden is by clear
and convincing evidence?
MS OSWALD: I do, your Honor.
THE COURT: May hear from you as to how you intend to proceed
in this matter, what you intend to show me?
MS. OSWALD – ARGUMENT
MS OSWALD: We intend to show that Article 13 of the Hague
Convention, which indicates: Notwithstanding the provision of
the preceding articles in the convention, the judicial or
administrative authority of the requested state, which obviously
is this court, is not bound to order the return of the child, in
this case Karim Tahan, if the person, institution or other body
which opposes its return, which in this case is Fred Tahan,
establishes that — and then sub-section B of the article
indicates thee 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. And we believe
that’s what we’re here to talk about today. We are not talking
about children in England, as reference in some of the cases
cited by Mr. Kubit, or children in Switzerland or children in
Australia, as Mr. Kubit’s memo refers to. We’re talking about
karim Tahan, the nine year old son of Fred Tahan and Michelle
Duquette, who for the past six years has been involved in this
litigation which leaves in his mind a doubt as to what the future
holds for him.
This Court must decide after this hearing whether
Karim will be granted the peace of mind of knowing that he will
continue to enjoy the daily love, affection and companionship of
his father, his baby sister and his step-mother. This Court has
to decide whether or not Karim is going to be allowed to return
to Holy Rosary School, whether he’s going to be able to continue
to play soccer with his team, whether he’s going to be able to
continue to play AA Little League, and in effect continue the
life that he has come to know and love and understand the three
years.
Mr. Tahan is going to ask that this Court listen
to the testimony and consider the reports of Doctor Gruen, who
has now known Karim and spent hours of time with Karim over the
last five years. We’re further going to ask that this Court
listen to the testimony of his grade school teacher, Lisa Dugan,
who has probably spent more time with Karim in the last nine
moths during the school year than anyone, other than his father,
his step-mother and his baby sister.
We’re further going to ask the Court to consider
the testimony of Mr. Tahan and his wife Claudia, who will attempt
to share with this Court Karim’s dreams and his desires, his
nightmares and his fears, and probably most importantly try to
explain to this Court the confusion and consternation in this
nine year old boy’s mind who has a mother who says she loves him
and yet doesn’t understand why if she loves him she has spent
half of his life trying to remove from him and remove him from
what he has come to know and understand and love. And all she
has shown him is that it’s her desires and her dreams and her
wishes that are important, not his.
We hope to show the Court that all that the Hague
Convention does at Article 13 is give this Court the right to
consider the harm to this child, which I understand we’re not
pursuing a custody hearing today, but that this Court has the
right to consider how this child will be affected by the decision
today. And we disagree that it is just a jurisdictional
question. It’s not just a legal interpretation. We have to look
at the psychological harm that Karim will suffer, as referenced
by Doctor Gruen.
Perhaps we will learn today, depending on the case
set forth by Miss Duquette, why Mr. Tahan’s offers of visitation
over the last three years have not — she has not taken advantage
of them. And perhaps we will learn why in the last four months
she has only seen fit to call this child three times, each time
for less than five minutes. Perhaps we will learn why her desire
to live in Canada is more important than her obligation to have
obeyed this Court’s order entered back in July of 1987, why her
desire to live in Canada in her mind is more important than
trying to understand and cooperate with her son’s often stated
desire, even to her, to live with his father and share a life
with his father, and why her desire to live in Canada is so
important that she has preferred for the last three years to
sacrifice any kind of a relationship with this child simply
because it meant that she would have to return to the country
that she called home for ten years.
I have been in this case, as has your Honor, for
many years now. And it’s my strong desire to see it come to an
end for karim’s sake. I think the clear and convincing evidence
that’s about to be presented by the testimony of these witnesses
and the reports of Doctor Gruen will show that there is a grave
risk of psychological harm to Karim if this Court disrupts his
life now by compelling his return to Canada.
THE COURT: Mr. Kubit
MR. KUBIT — ARGUMENT
MR KUBIT: Thank you, your Honor. At this time I think — I
need to express my concern that this hearing develop into other
than the Section 13(b) hearing as it is described in the case
law. And the case law clearly describes that Section 13(b) is a
jurisdictional issue and the issue which needs to be presented is
whether or not return to Canada is going to present grave risk of
psychological harm.
I think the case law is clearly instructive even
down to the case of Zimmerman vs Zimmerman No. 91-14556-S,
District Court of Dallas County, Texas (18 Oct 91) which clearly
states that we are talking about return to another country, and
the salient point is whether the other country has a court system
and the court system is able to protect the child. It is not
about a custody hearing. Case law specifically says this is not
custody, we are not to consider those things, that is the point.
And it was described in several cases, and the issue — the point
at that point was if we allow this to become a custody hearing,
then we drive a coach and horses, and I believe that’s the exact
quote, a coach and horses through the Convention and the rest of
the Convention is meaningless because we then hold custody
hearings any time we want to. WMH-FN1
A custody hearing is not to be held. We have no —
it shouldn’t be held, and we don’t believe that anything that’s
been presented or that matter has been described up and until
this point can establish that by any standard, much less clear
and convincing.
At this point I would ask the Court to dispense
with this hearing at this point and order the return of the
child, as case law indicates,and not to spend any more time and
any more angst on this matter.
Thank you, your Honor.
THE COURT: Miss Oswald would you concede that the thrust of
the proofs you wish to present to this Court are contained in the
report submitted by Doctor Gruen and in testimony you had hoped
to present here with Doctor Gruen live in the courtroom?
MS OSWALD: It is not just Doctor Gruen’s testimony, it would
be the testimony of Mr. Tahan and his wife as well.
THE COURT: I know, but that’s the thrust of your case,
because only Doctor Gruen is qualified to talk about our concept
of psychological harm.
MS OSWALD: That’s accurate, your Honor, I need by expert, as
I’ve indicated to your Honor previously. And as this Court is
also aware, Doctor Gruen is not available today or this week.
His first availability is June 29 and June 30, but I didn’t
reserve that time with him, not knowing what the court’s — how
the Court intended to proceed.
And, your Honor, if I could respond briefly to Mr.
Kubit’s last comment. The Appellate Division of this state
reversed and remanded this case for a hearing on Article 13 which
speaks to the psychological harm of this child. It didn’t remand
this case for purposes of a jurisdictional hearing. Article 13
doesn’t have contained in it anywhere the word jurisdiction. It
talks about examining the grave risk of psychological harm which
would rise to the level of an intolerable situation for this
child. And that’s what I believe this hearing is meant to do,
and I think this Court is compelled to conduct such a hearing.
COURT – RULING
THE COURT: I think I have to begin by indicating that on the
5th of June I received a letter from Judge Berjeron (phonetic
spelling), who heard this matter when it was in Canada,
indicating to me what the law was in Canada if there was an
interference with custody or visitation, and in fact sending me a
copy of the appropriate statute from Canada as well. But in
essence what he says in his correspondence, which I will make
available to counsel, it’s rather short: I will, as much as I
can,ensure that Mr Duquette delivers the child to Mr. Tahan for
his recognized visits at a minimum. Mrs. Duquette has, to my
knowledge, the reputation of respecting laws. I presume that the
child’s return to her should be enforced in the Untied States as
well as it will be in this country.
What he’s saying is that if the child is returned
to Canada, Mr. Tahan would have visitation in accordance with his
prior order, and if Mrs. Duquette interfered with that
visitation, the courts in Canada would insist that they
visitation be enforced.
I read this morning and I reread this morning
Doctor Gruen’s report. I reread it after having that conference
with counsel earlier this morning. And the crucial part of
Doctor Gruen’s report, as I see it from the Standpoint of Mr.
Tahan, is at page 6 in the section entitled “Discussion where
Doctor Gruen summarizes his observations and his conclusions and
assesses what he has learned from the evaluation process which
included all the parties.
The last part of his summary reads as follows:
There is no doubt in my clinical judgment that Karim should
suffer sever emotional complications, depression, anxiety,
distrust and withdrawal, if he were removed to Canada to live
with his mother. In terms of the requirements of Article 13, and
I assume he’s now referring to the Hague Convention, my best
judgment is that Karim would suffer psychological harm and be in
an intolerable situation psychologically if he were removed from
his father, step-mother and half-sister with whom he is so
strongly psychologically bonded.
As I indicated to counsel previously, I would
accept and counsel’s has indicated that this document may be
marked in evidence, in fact if counsel has no objection I think
Judge Berjeron’s letter would be marked in evidence as well. I
will accept that Doctor Gruen’s testimony if he were hear live in
the courtroom, would conform with his report and that he would
tell me the same things for the reasons of his evaluation. The
question I have is whether or not that is the type of harm that
is referenced in the Hague Convention.
The history of this matter is really set out
fairly well in a summary fashion in the opinion from the
Appellate Division at page 2, and I think it bears repeating
here:
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 order. 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
—
and it goes on to indicate what the Canadian court had to say
about the proceedings there.
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 —
and then the matter continued here.
Now that recitation of the history of this matter
is accurate, as far as I know, and the Appellate Division
properly summarized what had happened up until the time the
matter came before me again. When the matter came back before
me, I was not frankly very familiar with the Hague Convention.
As I indicated at a seminar about a couple weeks ago, I don’t
know if that’s because this Court is denser that other courts or
counsel didn’t make it as clear as counsel should have made it at
the time. But, nevertheless, I indicated there would be a
hearing on the issue of the return of th child. The application
for the return of the child was renewed, and when I ruled that
the child would not be returned based on the fact that the child
had been here more than one year, that issue was taken to the
Appellate Division, which indicated he had misinterpreted the
statute and remanded the matter back here. In remanding the
matter, what the Appellate Division said to this Court was: If
you do not find a reason under Article 13 of the Hague Convention
not to return the child to Canada, you must return the child to
Canada. The Appellate Division may have well been within it
rights at that time to say based on the record that was before
the court we will direct that the child be returned to Canada.
They could have handled the matter that way, I would think. But
I’m not certain at that time that even the Appellate Division was
so familiar with the Hague Convention, and with Article 13 being
a factor in the convention, it was just as appropriate to remand
it back to the trial court to make a determination.
Now what I have before me is both the Convention
and several cases dealing with that convention. The convention
clearly is our federal law. It is a treaty entered into between
the United STates and several other nations. The basic premise
and majority theory under the convention is that you are not
trying a custody case, but merely determining where custody
jurisdiction should be under the laws of the treaty. That’s what
the Convention’s about. This is not a issue before this Court as
to which parent is better fit or qualified to have custody of a
child. In fact, the Court always has some questions about that
issue anyhow, having to make those kind of difficult decisions.
That’s not the issue before this court.
The question is jurisdiction. There is no
question under the Convention that the — I want to get the right
term. They don’t use home state. What is their definition at
the Convention?
MS OSWALD: Habitual residence.
THE COURT: Habitual residence in this case is Canada. The
habitual residence is established by somebody being awarded
custody or by somebody being entitled to custody even without an
order for custody. The custody order in this case is from a
Canadian court, and that by definition makes the habitual
residence in this instance Canada. And in fact the Appellate
Division doesn’t disagree with that interpretation, the only
question is should there be a contrary ruling by this Court
because of Article 13.
Now let’s look at Article 13:
Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of
the requested State is not bound to order the return
of the child if the person, institution or other body
which opposes its return establishes that —
and we’re only talking about Art 13(b) here —
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.
That phrase, in the opinion of this Court, does not make
reference to a parent. That phrase, in the opinion of this
Court, makes reference to a nation. This is a treaty between
nations, about nations and about jurisdiction.
One commentator has said about Article 13 the
following:
Under Article 13 the judicial or administrative
authority is not bound to order the child returned if
the person, institution or party opposing is not
actually exercising custody rights
— which we do not have here, Miss Duquette has custody rights
pursuant to a bona fide order of a court in Canada —
or if there is a grave risk that the child’s return
would expose it to physical or psychological harm or
otherwise place the child in an intolerable situation.
It appears from cases throughout the world that the
definition of this term “grave risk” means a grave risk
being exposed to being returned to the country of
habitual residence apparently if internal strife in
that country has occurred, or if there is danger of the
child returning back to said country, that would be a
grave risk of danger exposing the child to physical or
psychological harm. The mere allegation that the grave
risk would be to return the child to the other parent
is not sufficient to be a grave risk of danger under
the terms of the treaty, at least at this juncture. If
one were to allow that argument, the case would then
become a custody case with psychological experts
testifying as to custody. The purpose of the treaty is
to return the case for trial in the forum of habitual
residence and not a trial in a forum where the child
was abducted.
Now those comments come from the materials
prepared for the New Jersey Institute for Continuing Legal
Education by Robert Arenstein, and are dated 1992. Mr.
Arenstein, as I understand it, is an attorney who is licensed to
practice both in New Jersey and in New York, who has been — I
don’t want to use the word retained — consulted by the State
Department at various occasions, and who has agreed to represent
people when the State Department has been involved in these
matters to determine whether or not a child would be returned or
retained in one of our states’ courts based upon the facts of
that particular case. In fact, this case could under
circumstances not even be before this Court in the same format
that it is now, while it might be captioned Tahan and Duquette, I
would very well have here at this time representatives from
foreign nation and from the State Department, or at leas the
State Department, here arguing that the Convention has to be
enforced. Because what we’re dealing here is with the
enforcement of a federal law, a federal treaty, not a custody
case.
I think Mr. Arenstein’s comments make sense. The
issue before this Court is jurisdiction, and the question of
grave risk deals with returning of a child to a nation, not to a
parent. By more correct example, certainly at the present time
it would be inappropriate and not good judgment on the part of
any court to take a child today and send a child to Yugoslavia
based on what is happening in Yugoslavia, if Yugoslavia in fact
was a signatory to the convention, because the child would be
placed in grave risk.
It is not a question before this Court as to
whether Mr. Tahan is a good, competent or superior parent; he may
be all of those things. Or that Miss Duquette is a adequate or
less superior parent; she may be all of those things. The truth
of the matter is this Court has never had an opportunity to make
a judgment on these people, the reached a consent back in 1987,
and the next time the matter was litigated it was litigated
before Judge Berjeron in Canada.
I understand Doctor Gruen’s report and the
perspective that he uses to reach his conclusions. It is the
common perspective that I would see in every custody case. And
this Court has the highest regard for Doctor Gruen, he appears
here regularly and has been appointed many times by this Court to
act as an expert. He is a caring, sensitive and I think an
insightful mental health expert.
But I have reviewed, in addition to Mr.
Arenstein’s comments, the plethora of cases that were sent to me
by Mr. Kubit, as well as some additional cases that I had asked
for from Mr. Arenstein when I found out that he had source to
these materials. I have read — let me find them so I have them
in front of me — the case of Melissa M. Steigerwalt-Gibson and
Michael Ebejer Ontario Provincial Court – Family Division,
Number: Welland Registry No. 51/83, Ontario Judgments: [14 Dec
1988] O.J. No. 2481; Gsponer v Johnstone (1988), 12 Fam LR 755,
FAMILY COURT OF AUSTRALIA; Zimmerman vs Zimmerma No. 91-14556-S,
District Court of Dallas County, Teaxas (18 Oct 91); and Korowin
v Korowin District Court of Horgen 4891072U/ER4SV/ez (14 Feb
1992).
Those cases all arrived before their respective
judges in a different format than this matter comes before me.
They were o an expedited track in each case, it appears to me.
In each case there was an intervention by the appropriate federal
authority of the nation, and it each one of the cases thee was a
question under Article 13(b) of the Convention, and each of the
courts addressed the question of the Convention in those
opinions. In each instance they courts concluded, as I have
concluded here this morning, that the proper forum in which to
determine whether or not the type of harm that is raised here by
Mr. Tahan is going to impact on the child should be heard in the
court that has proper jurisdiction.
And so regardless of the allegations that were
raised by the opposing parent in each instance, whether the
mother in one instance was the parent to which the child was
bonded, or the father in another instance was an alcoholic and a
drug addict, or the father in another instance had been abusive
to the mother and there was alleged potential abuse, physical
abuse to the child, in every one of thee cases the child was
returned to the state of habitual residence for those issues to
be determined in that state. And if I went through the facts of
the other cases that deal with that that were submitted to me,
I’m satisfied that that would be results in the other cases as
well.
It makes, from the Convention’s point of view, no
difference how the Court may view the custody circumstances
between the parents, because that’s not the issue before this
Court to decide. It is the question of whether or not Canada is
suitably qualified to make rulings regarding the welfare of the
child, and I don’t think that
s at issue at all. Canada has the capacity,the judges in Canada
are just as qualified as the judges in the United States or in
any other, for lack of a better term, civilized nation.
If you were to show me, Miss Oswald, everything
you wanted to show me and comment on all those things you just
said about the child, his Little League, his schooling, his
relationship with his sibling, his involvement in what is now his
nuclear family, they are not the factors on which I have to make
by determination, they are not before me. It is unfortunate, I
think, from the standpoint of all the parties involved and the
child that I did not understand the Convention earlier as I can
understand it now, because if that had been the case when Mr.
Tahan first came here in the summer of 1989 with the child, I
believe that’s when he came back here and the matter was raised
some months thereafter, I would have returned the child to Miss
Duquette at that time. Again, not because she is a better
qualified or better fit parent, for that’s not the determination
that I’m making, but because I am compelled to do so under
federal treaty. And what complicates this matter is the child
has now been in this country for three years, I assume, with the
father, and so that the decision that I have to make here this
morning is all the more difficult and I can appreciate how it
will impact on the child, on Mr. Tahan and his family. If Mr.
Tahan believes that custody should be with him, then he is
compelled, in my opinion, to go back and litigate that matter in
Canada. And if he thinks the conclusions reached by Doctor
Gruen, after Doctor Gruen’s most recent evaluation are
persuasive, he has a right to take that to a Canadian judge, but
I don’t believe under the Convention he can present material to
me because that’s not what the Convention is addressing.
Under those circumstances I think I]m compelled to
return the child to Miss Duquette and have her take the child
back to Canada, or if Mr. Tahan tells me, allow him to deliver
the child back to Canada, but I’m talking about in a relatively
short time.
I would only put out as an aside that under the
circumstances of the case as they presently exist, certainly Miss
Duquette would be entitled to extended summer visitation in any
case. If I were retaining jurisdiction, and I’m not, and the
child would be going to Canada anyhow for an extended period of
time.
COLLOQUY
MS OSWALD: Can I respond to that, your Honor? If this Court
is going to accept that Canada is truly going to enforce Mr.
Tahan’s visitation rights, he would be returned to Canada and
then immediately sent back because Mr. Tahan’s visitation rights
are at the current time.
I understand there’s been a disruption in that
schedule, and I’m not trying to —
THE COURT: Miss Oswald, I understand that, but I don’t know
what a Canadian judge will do with that question.
MS OSWALD: Judge Berjeron has already responded that he would
enforce the visitation rights.
THE COURT: But he may look at this matter in the light of the
fact that the child has been here for so long and modify his
order appropriately.
MS OSWALD: Isn’t it then incumbent on Miss Duquette to take
that argument to Judge Berjeron up in Canada?
THE COURT: She can, but she’ll also take the child with her.
MS OSWALD: But under Judge Berjeron’s order the child is
supposed to be here right now.
THE COURT: No, Miss Oswald, I don’t think that’s appropriate.
I think this is stretching of what my authority would be.
MS OSWALD: Your Honor —
THE COURT: Because I could easily envision Judge Berjeron
saying that under the circumstances the summer visitation is
modified.
MS OSWALD: That means that this — that that court, and if
this Court’s going to accept that that may be Judge Berjeron’s
interpretation,that Mr. Tahan would then not see his son for a
whole year, because his visitation —
THE COURT: Miss Oswald, I do not know what the outcome will
be in front of Judge Berjeron, but I don’t believe I have the
authority to make the ruling that you’re asking for.
MS OSWALD: But your Honor can rule that the child has to be
returned to Canada in accordance with the Canadian custody order,
but that same Canadian order that gives Miss Duquette custody
gives Mr. Tahan visitation during the summer.
THE COURT: Miss Oswald, the problem with the argument is this
matter was originally scheduled for early March. Mr. Kubit had a
problem, had to go into the hospital because of his back, and —
MS OSWALD: That was not the delay in this case, your Honor.
The delay in this case was from — because Miss Duquette said she
wanted psychological reports.
THE COURT: Please, let me finish. That delayed the matter
once, and Miss Duquette did not come down for the evaluation
process. But, as it turned out, the evaluation process is not
dispositive of the decision making process, and that should never
have been imposed on the parties in the first place as it turns
out.
MS OSWALD: You Honor, my argument is, first of all, this case
is, as your Honor just indicated from the Bench, the big
distinguishing factor here I believe from the cases that you just
cited is those case were handled on an expedited basis, so
habitual residence had some meaning in those cases.
THE COURT: Miss Oswald, you keep going back to what’s in the
best interest. The habitual residence hasn’t changed. If she —
MS OSWALD: But habitual residence has no meaning in this
case, Judge. Habitual residence for this child, his habitual
residence for seven and a half of his nine years has been the
United States.
THE COURT: The habitual residence is defined by the Hague
Convention, it is not defined by where the child’s lived most of
his life.
MS OSWALD: I think that lends an unrealistic interpretation
to habitual residence under the facts of this case.
THE COURT: To take your argument would mean that somebody who
absconded with a child and disappeared for five years would then
establish a new habitual residence.
MS OSWALD: Your Honor, the argument I’m getting to, and your
Honor probably sees through it, is to compel the immediate return
of this child who has lived here for three years, with no
preparation, no ability to prepare that child’s mind for this
sudden move, I can’t believe that that in itself won’t do grave
psychological harm.
THE COURT: If you’re telling me that Mr. Tahan will make
arrangements, today is Wednesday, within a relatively short time
to take the child back to Canada, I would not be offended by
that.
MS OSWALD: What does your Honor define as a relatively short
period of time? Because I want your Honor to be aware that Mr.
Tahan and I have already discussed the fact that this — there
may be a stay and that there is going to be an appeal based — if
this is your Honor’s ruling, and I detect that it is. But what
does you Honor define as a relatively short period of time, so
that I know how to proceed for purposes of appeal?
THE COURT: For purposes of appeal —
MS OSWALD: Do I need a stay? I mean my feeling is I’m going
to go to the Appellate Division today. If you’re saying the
child has to be returned tonight at midnight, I’m going to call
the Appellate Division from here and anticipate, you know, ask
them to receive some oral argument this afternoon.
THE COURT: There’s time involved in packing the child and
things of that nature. I would not tell your the child had to be
back there at midnight. I don’t know how long Miss — how long
does your client intend to be in this country, Mr. Kubit.
MS. DUQUETTE: I am leaving on Friday, because I have — I’m
teaching on — I’m a teacher, and then I still have to work on
Monday and Tuesday following. But —
THE COURT: I think that Friday would be the time we’re
talking about.
MS OSWALD: That’s your Honor’s decision then, the child is to
be returned Friday?
THE COURT: Yes, ma’am, it seems to be appropriate.
MR KUBIT: Your Honor, I prepared an order and I left a blank
in it in terms of dates. It also in —
THE COURT: Have you shown the order to Miss Oswald?
MR KUBIT: No, I have not. I will show it to her right now.
But that leaves — because the order includes other things, and I
would at this time under ICARA ask for an award of counsel frees
be made pursuant to that statute. And I’ve submitted my
certification, the only modification to that certification is
that we did (indiscernible) $300 back, so that we can deduct
$296.50, which is the exact amount, from whatever amount is to be
shown.
MS OSWALD: YOur Honor, if you would hold the decision on
counsel fees until I have an opportunity to respond in writing.
THE COURT: I will afford you that opportunity, ma’am.
MR KUBIT: I can strike that portion of it.
THE COURT: Do counsel agree that Doctor Gruen’s report should
be marked in evidence?
MS OSWALD: I do.
MR KUBIT: Agreed.
THE COURT: As well as the letter from Judge Berjeron?
MS OSWALD: I do.
MR KUBIT: (No audible response)
THE COURT: Please mark those C-1 and C-2 in evidence, the
letter first since I made reference to it first, Doctor Gruen’s
report C-2.
MS OSWALD: Your Honor, the form of order prepared by Mr.
Kubit doesn’t seem to be appropriate based on your Honor’s order,
since Miss Duquette is staying here until Friday, it would seem
that he only has to return the child to Miss Duquette in the
County of Camden, whereas this order reads in the Province of
Quebec. If your Honor’s ordering that the —
THE COURT: You want to prepare another order, Mr. —
MR KUBIT: I’ll have it here this afternoon, I’ll send it to
Miss Oswald by FAX.
MS OSWALD: Unless we can just write — correct this one in
writing. I have no objection to that.
THE COURT: Let me see what you have there, please.
[ – Pause – ]
THE COURT: What time is Miss Duquette intending to return to
Canada? What are her travel arrangements, Mr. Kubit?
MS. DUQUETTE: My plane leaves at quarter to 2:00.
MR KUBIT: It appears she’s going to leave at approximately
2:00 o’clock, 1:30 to 2:00 o’clock. I would think probably 11:00
o’clock in the morning would be an appropriate time, given the
time to get to the airport.
THE COURT: She said plane or train?
MS. DUQUETTE: Plane
MR KUBIT: Plane
THE COURT: Does she have transportation arranged for the
child?
MR KUBIT: Not at this point, your Honor.
THE COURT: I have changed the order to indicate, first of
all, that the matter was before the court on this day, the return
of the child shall be in Camden County, counsel can agree upon
the location, not later than 10:00 a.m. on Friday, June 26, 1992.
I have deleted the word “have” to “may” in paragraph 2.
I need four or five copies of that made.
MS OSWALD: Your Honor, can I wait for a conformed copy of the
order?
THE COURT: I’m having photocopies made right now, Lucy.
* * * * * * * *
CERTIFICATE
I, Carolyn A. Clark, assigned transcriber, do
certify that the foregoing is a true and accurate transcript in
the matter of Fred Tahan versus Michelle Duquette, heard in
Superior Court of New Jersey, Chancery Division – Family Part,
County of Camden, before the Honorable Vincent D. Segal, J.S.C.,
on June 24, 1992, and recorded on Tape No. 3533-92 at Index No.
1429 to the end of tape, and Tape No. 3534-92 at Index No. 0001
to 0117, of that court.
June 30, 1992 /s/ Carolyn A. Clark
__________________________________
Carolyn A. Clark, AOC No. 122
Compleat Transcribing Service.
——————–
1. Evans v Evans (20 Jul 1988) Supreme Court of Judicature,
Court of Appeal (Civil Division) No. AD 1716 of 1988