Blondin v. Dubois

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-2834
• Citation: 189 F.3d 240
• Parties: (2nd Cir. 1999) FELIX BLONDIN, Petitioner-Appellant, v. MARTHE DUBOIS, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 240

189 F.3d 240 (2nd Cir. 1999)

FELIX BLONDIN, Petitioner-Appellant, v. MARTHE DUBOIS, Respondent-Appellee.

Docket No. 98-2834

August Term, 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued May 6, 1999

Decided Aug. 17, 1999

Appeal from a judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge), denying father's petition, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (the "Convention"), for return of his children to the country from which they were abducted. Blondin v. Dubois, 19 F. Supp. 2d 123 (S.D.N.Y. 1998). Although the mother conceded that the children were "wrongfully abducted," as that term is used in the Convention, the District Court nevertheless ruled that the children would face a "grave risk" of harm if they were returned. While we agree with the District Court that the children should not be returned to their home country in their father's custody, we nevertheless conclude that the District Court should be given a further opportunity to consider the availability of temporary arrangements that would honor the Convention's mandate of delivering abducted children to the jurisdiction of the courts of their home countries, while still protecting them from the "grave risk" of harm.

Judgment vacated; cause remanded.

SANFORD HAUSLER, Brooklyn, NY (Valerie S. Wolfman, New York, NY, of counsel), for Petitioner-Appellant.

HOWARD L. JACOBS, New York, NY, for Respondent-Appellee.

Before: OAKES, CABRANES, and SACK, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

This case presents issues of first impression regarding the application of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (the "Hague Convention" or "Convention"); 42 U.S.C. §§ 11601 et seq. (domestic implementing legislation). That treaty, which has been ratified by the United States-and thus shares with the Constitution and federal statutes the status of "supreme Law of the Land," U.S. Const., art. VI-seeks to "secure the prompt return of children wrongfully removed to or retained in" any signatory state. Hague Convention, art.1.

As with many Hague Convention cases, this matter involves a custody dispute between now-separated parents. The mother, Marthe Dubois, concedes that she "wrongfully removed" the children-Marie-Eline and Franois-from France, and even forged the signature of their father, Felix Blondin, to obtain passports for the children. However, Dubois contends that she did so in order to protect the children from what she alleges was a physically abusive environment. Blondin, in contrast, denies that he abused the mother or the children.

These issue arise on an appeal by Blondin from a judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge), denying his petition for repatriation of Marie-Eline and Franois. See Blondin v. Dubois, 19 F. Supp. 2d 123 (S.D.N.Y. 1998). Due to Dubois's allegations of abuse, the District Court determined, see id. at 127-29, that returning Marie-Eline and Franois to Blondin's custody would place the children at a "grave risk" of harm-thus qualifying for an exception to the Convention's presumption that abducted children should be returned to their home country. See Hague Convention, art. 13(b). The Court held that return of the children to France other than in Blondin's custody was impracticable, because Blondin's means were limited and he presumably could not support Dubois and the children other than in his home. See id. at 128. The Court also rejected Blondin's suggestion that the children could be returned to France in the custody of some third party, ruling that the children would be returned, if at all, only in their mother's custody.

On this appeal, we conclude that the Hague Convention requires 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 (concededly) wrongfully abducted, in order to allow the courts of that nation an opportunity to adjudicate custody. Courts considering Hague Convention petitions should make every effort to honor simultaneously the Convention's commitments (1) to the return of wrongfully abducted children to their home countries, for custody adjudication by courts there with proper jurisdiction, and (2) to safeguarding the children from "grave risk" of harm. The careful and thorough fulfillment of our treaty obligations stands not only to protect children abducted to the United States, but also to protect American children abducted to other nations-whose courts, under the legal regime created by this treaty, are expected to offer reciprocal protection.

While we understand the District Court's reluctance to place the children directly into Blondin's custody, we believe the District Court should be given another opportunity to consider, under the clarified standard, whether other options are indeed available under French law-options that may allow the courts of the United States to comply both with the Convention's mandate to deliver abducted children to the jurisdiction of the courts of their home countries and with the Convention's command that children be protected from the "grave risk" of harm. Accordingly, we vacate the judgment of the District Court, and we remand the cause for further appropriate proceedings. We stress, however, that whatever the outcome of those proceedings may 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 return to France in the temporary care of some other person; a court in that country would then be empowered-unlike the federal courts of the United States-to make plenary determinations regarding the children's long-term custody.

BACKGROUND

Blondin and Dubois met in the summer of 1990 and soon began living together in France, though they never wed. A daughter, Marie-Eline, was born in May 1991; a son, Franois, in August 1995. There is evidence in the record to suggest, however that family life was turbulent. Dubois testified that Blondin began beating her in 1991; in some instances, he would do so while she was holding Marie-Eline, with the result that some of Blondin's blows would fall on Marie-Eline. She also testified that on one occasion in 1992, Blondin twisted a piece of electrical cord around Marie-Eline's neck, threatening to kill both the mother and the child. After this incident, Dubois left the home for two weeks, living with Marie-Eline in a shelter for battered women before returning to Blondin. The following year, Dubois again took Marie-Eline with her to a series of shelters, living in them over a period of approximately nine months.

In April 1993, Blondin commenced an action in France to obtain custody of Marie-Eline. That proceeding was resolved in December 1993, when Blondin and Dubois reconciled, agreeing to live together with Marie-Eline at Blondin's residence. Pursuant to their agreement, the French court terminated the proceedings, and issued an order declaring that "the parental rights over the child will be exercised in common by both parents" and that "the child will have its usual residence at the fathers' [sic]." The court's order also provided for regular visitation by Dubois, in the event that she should choose to live outside Blondin's home.

Dubois testified that despite their reconciliation, Blondin continued his abuse. She testified that both during and after her pregnancy with Franois, Blondin repeatedly beat her and threatened her life, as well as the lives of the children. Dubois sought medical attention for her injuries on at least two occasions, and once summoned the French law enforcement authorities.

In August 1997, when Marie-Eline was six years-old and Franois was days short of his second birthday, Dubois and the children left France for the United States without notifying Blondin, let alone obtaining his consent. Earlier in 1997, Dubois had forged Blondin's signature in order to obtain passports for the children.

Within days of discovering that Dubois and the children had left the home, Blondin sought and obtained a preliminary order from a French court, directing that the children not leave "the metropolitan territory without the previous authorization of the father." It thus appears that Blondin was not immediately aware that they had departed the country, and that they were living with Dubois and her relatives in New York City. However, Blondin had discovered their whereabouts by June 1998, when he filed the instant petition, seeking the children's return to France under the Hague Convention.

In keeping with the Convention's explicit emphasis on expeditious judicial resolution, see Hague Convention, art. 11 ("The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children."), the District Court conducted a prompt evidentiary hearing on Blondin's petition. In that hearing, Dubois testified to the factual allegations set forth in the foregoing paragraphs; Blondin, for his part, denied that he had ever "hit" Dubois or the children, but admitted to having spanked Marie-Eline on infrequent occasions, and equivocated as to whether he may have "slapped" Dubois in the "heat of a dispute." Judge Chin also interviewed Marie-Eline, outside the presence of her parents or their attorneys. She told him that Blondin had hit her and her mother, and that this is why they had left France. She also explained that she did not want to return to France because she didn't "want Daddy to hit me." In addition, she also told Judge Chin that both parents beat her, but that Blondin did so more than Dubois.

By Memorandum Decision dated August 17, 1998, the...