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BLONDIN v. DUBOIS

January 12, 2000

IN RE THE APPLICATION OF FELIX BLONDIN, PETITIONER,
V.
MARTHE DUBOIS, RESPONDENT.



The opinion of the court was delivered by: Chin, District Judge.

OPINION

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.

Upon remand, I met with the parties and contacted the appropriate French and American authorities to develop a thorough record to aid my analysis of the arrangements by which the children possibly could be returned to France. After receiving responses from the French Central Authority and other French officials, as well as the United States Department of State, I conducted a hearing on December 20, 1999. I heard testimony from a French lawyer with expertise in French family law and international law, an expert in child psychiatry and child psychology, and Dubois. In addition, I interviewed Marie-Eline and Francois.

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.

STATEMENT OF THE CASE

A. The Facts

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 at 124.

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.

B. Procedural History

1. The Initial Petition

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 adjudicate custody, 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.

3. Proceedings on Remand

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 247-48).

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 States).

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 ...


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