Ms. Traylor-Sadberry first outlines the facts of the
case. Marthe Dubois had a turbulent extra-marital relationship in France with
Felix Blondin during which two children were born, Marie-Eline and Francois.
Blondin allegedly abused Dubois. After intermittently living in shelters for
about nine months, Dubois took the children to the home of relatives in New
York City. Blondin filed a petition in New York federal court to have the
children returned to France, pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction [T.I.A.S. No. 11670, 1343 U.N.T.S.
89]. The Court denied the petition, holding specifically that sending the
children back would place them at "grave risk" of harm. Hague Convention Article 13(b) allows such a
showing to counter the Convention's presumption that abducted children should
go back to their home country. The
district court also found that Blondin's means were rather limited and that he
could not support Dubois and the children other than in his home in France.
Blondin then filed a timely appeal. The U.S. Court
of Appeals for the Second Circuit vacates the judgment and remands. The Court
sees this case as presenting issues of first impression under the Hague
Convention. Article 1 of the Convention generally favors "the prompt
return of children wrongfully removed to or retained in" any signatory
state (which includes the U.S. and France). Proper application of the
Convention and deference to the children’s home forum, however, demands that
the lower courts consider the possibility of special arrangements for their
return.
"[I]t is important that a court considering an
exception under Article 13(b) take into account any ameliorative measures (by
the parents 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. In the exercise of comity that is at
the heart of the Convention ..., we are required to place our trust in the
courts of the home country to issue whatever orders may be necessary to
safeguard children who come before it. ... [...] As the District Court properly
recognized here, ... granting Blondin's petition would not - as a legal matter
— invariably entail turning the children over to his custody. In fact, other
arrangements might be available that would allow the children to return to
France in some other person's care, pending a long-term custody adjudication -
thus reducing or eliminating the risk of harm that might otherwise be
associated with granting Blondin's petition." [Slip op. 25-26].
The Second Circuit therefore remands for the
district court to reconsider whether French law provides for other options that
would allow the children’s return to France without the "grave risk"
of harm. Aided by the U.S. State Department, the court should make any
appropriate and necessary inquiries of the French government to determine the
range of remedial placement options that may be available under French law.
Ms. Traylor-Sadberry notes that even though the
Court does not say so directly, it appears that all family members are French
nationals whose contacts with the U.S. were tenuous.
The complete article will be published on the Blog
of Ms. Traylor-Sadberry at https://AynTraylorSadberryBlog.blogspot.com
References
Law
Firm Website:
http://www.traylorsadberry.com
Attorney
Profile https://solomonlawguild.com/ayn-traylor-sadberry
LinkedIn
Profile: https://www.linkedin.com/in/ayn-traylor-sadberry-28a168169/
Member
of the Chamber of Commerce, https://www.chamberofcommerce.com/birmingham-al/24203184-traylor-sadberry-ayn
*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: www.TraylorSadberry.com
