The opinion of the court was delivered by: Chin, District Judge.
Petitioner Felix Blondin and respondent Merlyne Marthe Dubois are the
parents of Marie-Eline, age 8, and Francois, age 4. In the course of their
seven-year relationship, Blondin repeatedly beat and threatened to kill
Dubois, often in the presence of their children. Blondin also frequently
hit Marie-Eline, and threatened to kill her as well. As a result, in
August 1997, Dubois removed the children from their home in France and
brought them to the United States, without their father's knowledge or
consent. Blondin, a French national, petitioned 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(1980) (the "Convention"), and its implementing legislation in the
United States, the International Child Abduction Remedies Act,
42 U.S.C. § 11601 et seq.
By memorandum decision dated August 17, 1998, I denied Blondin's
petition, finding by clear and convincing evidence that there was a "grave
risk" that the return of the children to France would expose them to
"physical or psychological harm or otherwise place [them] in an
intolerable situation." Blondin v. Dubois, 19 F. Supp.2d 123, 127-29
(S.D.N.Y. 1998) ("Blondin I") (quoting Convention, Art. 13b).
Blondin appealed. While the Second Circuit did not disturb my finding
that "returning Marie-Eline and Francois to Blondin's custody . . . would
expose them to a `grave risk of harm,'" it concluded that the Convention
required "a more complete analysis of the full panoply of arrangements
that might allow the children to be returned to the country from which
they . . . were wrongfully abducted, in order to allow the courts of that
nation an opportunity to adjudicate custody." Blondin v. Dubois,
189 F.3d 240, 242 (2d Cir. 1999) ("Blondin II"). In light of this
"clarified standard," the Court of Appeals vacated the judgment and
remanded the case for further proceedings. The Court of Appeals directed
me on remand to consider whether other options were available that would
protect the children from the "grave risk" of harm while still honoring
"the Convention's mandate to deliver abducted children to the
jurisdiction of the courts of their home countr[y]." Id.
After due consideration of all the evidence and the arguments of the
parties, I again find by clear and convincing evidence that there is a
"grave risk" that the return of the children to France would expose them
to "physical or psychological harm or otherwise place [them] in an
intolerable situation." Convention, Art. 13b. Recognizing that the "grave
risk" exception to the Convention is to be construed narrowly, I find
that the extraordinary circumstances of this case require that I apply
the Article 13b exception. I find that any repatriation arrangements,
including even the return of the children in their mother's temporary
custody with financial support by Blondin and French social services,
would expose Marie-Eline and Francois to a "grave risk" of psychological
harm. Accordingly, the petition is denied.
The underlying facts of the case are set forth in my prior decision,
Blondin v. Dubois, 19 F. Supp.2d 123 (S.D.N.Y. 1998), as well as in my
September 14, 1998 order denying petitioner's motion for
reconsideration; those factual findings are hereby adopted and
incorporated in this decision. A brief summary of those facts follows.
Blondin and Dubois, both French citizens, met in 1990 and soon began
living together in France. A daughter, Marie-Eline, was born in 1991.
Throughout the course of their relationship, Blondin repeatedly abused
Dubois, beating her with his hands and a belt, sometimes when she was
holding Marie-Eline. In addition, he often threatened to kill Dubois.
Blondin also beat Marie-Eline frequently and threatened her life as
well; in 1992, Blondin twisted a piece of electrical cord around
Marie-Eline's neck and threatened to kill her. Blondin I, 19 F. Supp.2d
To escape the abuse, Dubois twice left Blondin and moved into different
battered women's shelters with Marie-Eline and Crispin, her son from a
previous relationship. In 1992, Dubois and the children stayed in a
shelter for approximately two weeks, returning home when Blondin came to
get them. Blondin I, 19 F. Supp.2d at 124. In 1993, Dubois and the
children left Blondin again, going to another shelter for battered
women; Dubois and Marie-Eline eventually moved to a different shelter,
where they stayed for approximately eight or nine months. Id. at 125.
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 when Blondin and Dubois reconciled. 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 visitation and
sheltering rights." Blondin I, 19 F. Supp.2d at 125. After the
reconciliation, Dubois and Blondin resumed living together, and a son,
Francois, was born in 1995.
Despite the reconciliation, Blondin continued to beat Dubois in front
of the children. He often threatened to "kill everyone," and once
threatened to throw Francois out of the window. In August 1997, Dubois
left Blondin again, taking the children to the United States. She removed
Marie-Eline and Francois from France without Blondin's knowledge or
consent; indeed, she forged his siguature to obtain passports for the
children. Blondin I, 19 F. Supp.2d at 125. Dubois, Marie-Eline, and
Francois moved in with Dubois' brother, Aureliou Ruyor, his wife, and
their two children in the Bronx.
Within days of discovering that Dubois and the children had left, and
apparently unaware that they had fled to the United States, Blondin
obtained a preliminary order from a French court, directing that the
children not leave the metropolitan area without his permission. Blondin
eventually discovered that Dubois, Marie-Eline, and Francois were living
in the United States, and on June 18, 1998, he filed a petition in this
Court seeking the children's return to France under the Convention.
Following the Convention's mandate to proceed expeditiously, see
Convention, Art. 11 ("The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings for the return
of children."), I conducted hearings in the case on June 19, 22, 24, and
29, 1998. I heard testimony from Blondin, Dubois, and Marie-Eline.
After careful consideration of all of the evidence and the parties'
arguments, I found by clear and convincing evidence that there was 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. Blondin I, 19 F. Supp.2d at 124. I found that Blondin had
repeatedly physically abused both Dubois and Marie-Eline and had
threatened to kill them on numerous occasions, and thus the children
would face a "grave risk" of physical and psychological harm at the hands
of Blondin if they were repatriated.*fn1 Id. at 124-25. As a result, I
held that Dubois had established a defense to Blondin's claim of wrongful
removal, and I refused to return the children to France, pursuant to
Article 13b of the Convention.
Under these circumstances, I was wary of requiring Dubois and the
children to live in Blondin's home. In an earlier ruling from the bench,
I had rejected Blondin's suggested alternative custodial arrangement
— the temporary placement of the children in France with
Marie-Eline's godmother pending a final custody decision by the French
courts. (6/29/98 Tr. at 115-16). In my memorandum decision, I considered
the further possibility of requiring Blondin to pay for their housing
elsewhere, but he represented that he had "no more money." Blondin I, 19
F. Supp.2d at 128. In light of all of these considerations, I denied
Blondin's petition. Blondin moved for reconsideration of my decision, and
I denied the motion by order dated September 14, 1998.
2. The Second Circuit's Opinion
Blondin appealed the denial of the petition to the Court of Appeals for
the Second Circuit. In a decision dated August 17, 1999, the Second
Circuit concluded that I should have performed "a more complete analysis
of the full panoply of arrangements that might allow the children to be
returned to [France]" to allow the French courts an opportunity to
before invoking the Article 13b "grave risk" exception. The Court of
Appeals explained that
[c]ourts considering Hague Convention petitions should
make every effort to honor simultaneously the
Convention's commitments to the return of wrongfully
abducted children (1) to the return of wrongfully
abducted children to their home countries, for custody
adjudication by courts there . . . and (2) to
safeguarding the children from "grave risk" of harm.
Blondin II, 189 F.3d at 242. The Second Circuit further noted that
because the "whole structure of the Convention depend[s] on the
institutions of the abducted to state generally deferring to the forum of
the child's home state,"
it is important that a court considering an exception
under Article 13(b) take into account any ameliorative
measures (by the parent and by the authorities of the
state having jurisdiction over the question of
custody) that can reduce whatever risk might otherwise
be associated with a child's repatriation.
Id. at 248. In light of this "clarified standard," the Second Circuit
vacated the judgment below and remanded the case for further proceedings
to consider whether other options were available by which the children
could be safely returned to France.
The Court of Appeals stressed, however, that "whatever the outcome of
those proceedings might be, we do not disturb the District Court's
conclusion that the children should not be released from the United
States into the custody of their father. At most, they could be returned
in the temporary custody of some other person. . . ." Blondin II, 189
F.3d at 242 (emphasis added). The Second Circuit again emphasized that it
"[did] not disturb or modify the District Court's finding that returning
Marie-Eline and Francois to Blondin's custody (either expressly or de
facto) would expose them to a `grave risk' of harm, within the meaning of
Article 13(b)." Id. at 250. In conclusion, the Court of Appeals directed
me to consider on remand "remedies that would allow the children's safety
to be protected pending a final adjudication of custody in France." Id.
I proceeded with dispatch after the Second Circuit's decision,
discussing the case with the parties informally even before the mandate
issued and holding another conference upon receiving the expedited
mandate. (9/10/99 Tr. at 1). In addition, in accordance with the Second
Circuit's advice to "make any appropriate or necessary inquiries of the
government of France," I wrote to the French Ministry of Justice, which
acts as the French Central Authority with regard to the Convention, as
well as the United States Department of State, seeking its assistance.
(See 9/14/99 Court Letter to Agnes Bodard-Hermant, et al.; see also
10/21/99 Court Letter to Agues Bodard-Hermant, et al.).
By letter dated September 22, 1999, Dubois asked the Court to consider
whether Marie-Eline had become so deeply rooted in the United States that
returning her to France would expose her to a grave risk of psychological
harm, arguing that the Second Circuit had left this issue open to
consideration on remand. (See 9/22/99 L. Joy Letter to the Court). In an
order dated October 28, 1999, I rejected the argument to the extent that
respondent was attempting to invoke the "well-settled" exception set
forth in Article 12 of the Convention, which applies only when a parent
delays for more than a year before filing a petition. (See 10/28/99
Order). See also Convention, Art. 12; Blondin II, 189 F.3d at 247-48. I
concluded, however, that the Court of Appeals had not foreclosed the
possibility that such an argument could be made within the context of
Article 13b of the Convention, and accordingly, I allowed Dubois the
opportunity to present evidence on the issue at the scheduled
hearing.*fn2 (See 10/28/99 Order, citing Blondin II, 189 F.3d at
In November 1999, the United States Attorney for the Southern District
of New York, representing the United States Department of State, *fn3
forwarded to me the responses of the French Ministry of Justice. (See
11/24/99 and 12/17/99 W. Schwartz Letters to the Court and enclosures).
The United States later submitted a statement of interest, pursuant to
28 U.S.C. § 517,*fn4 to express its views on the interpretation of
the Convention. (See 12/17/99 Statement of Interest of the United
On December 20, 1999, I conducted an evidentiary hearing at which
counsel for the parties and for the United States were present. The
United States presented Veronique Chauveau, a French attorney and expert
on French and international family law, as a witness. In addition, I
heard testimony from Dr. Albert Solnit, Sterling Professor Emeritus of
Pediatrics and Psychiatry and Senior Research Scientist at the Yale
University Child Study Center, who had examined Marie-Eline and Francois
at the respondent's request. Dubois testified about her family's
relocation to New Jersey and her relatives in France. Finally, I spoke
with Marie-Eline and Francois, on the record but in my chambers, outside
the presence of their mother and the attorneys. At the conclusion of the
hearing, I reserved decision.
C. Additional Findings of Fact
The government's expert witness, Veronique Chauveau, testified
generally about how French custody proceedings operate and about the
social and legal support services available to Dubois and the children
should they be returned to France. In addition, the letters submitted by
the various French authorities in response to my inquiries detailed what
specific social ...