On appeal from the Superior Court, Camden County, Chancery Division, Family Part.
Pressler, Skillman and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
At issue in this custody dispute is the application of the Convention on the Civil Aspects of International Child Abduction, adopted at The Hague on October 25, 1980 (hereafter referred to as the Convention). A copy of the Convention is attached to the opinion as an appendix. It is also published at 51 Fed.Reg. 10498 (1986). The United States of America deposited its instrument of ratification of the Convention on April 29, 1988. That same year, Congress established procedures to implement the Convention in the United States. 42 U.S.C.A. § 11601 et seq. Appellant, Michelle Duquette (hereafter referred to as the mother) appeals from a December 10, 1990 order awarding custody of her child to her former husband, the respondent Fred Tahan (hereafter referred to as the father). She contends that the court erred when it failed to return the child to her, a resident of Canada, pursuant to the Convention.*fn1
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 record states:
Agreement Decided Upon in Chamber:
There is a withdrawal of the submission upon the request of exemplification. This procedure becomes a request for child custody with accompanying visitation rights.
The request is adjourned until April 14, 1989 in Rowyn-Moranda or until any other prior date known or decided upon.
During the adjournment, the child Kareem will stay with the father in New Jersey.
The petitioner [father] promises to return the child to the defendant [mother] the day before the hearing date. Mr. Tahan will pick up the child at the domicile of the Mrs. on January 30, 1989 at 6:00 p.m.
Request is made to the parties to conform to the above.
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 awarding 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. The father's application was determined in New Jersey on the papers, resulting in an order dated November 30, 1989, awarding sole custody to the father and prohibiting removal of the child from New Jersey.
In March, 1990, the mother moved for an order directing return of the child to her pursuant to the Convention and implementing federal legislation. That application was argued on April 20, 1990. After extensive colloquy, the trial court ruled:
THE COURT: I think the most I can [sic] for you at this time, Mr. Kubit, is tell you that if you want to contest the continuing jurisdiction of the Court you may do so, but on a hearing. I'm not going to do it on the papers. I'm going to require the lady to come down here. You can present any experts you want with regard to Canadian law and the Canadian proceedings. But I'm not satisfied that if I were to, at this time, make a further order and say that the child should go back to Canada because of the Canadian court ruling, I'm not satisfied Mr. Tahan is ever going to see the child again.
But I am going to indicate at this time that this Court does have continuing jurisdiction on the Tahan matter, that the order I made previously stands. I will afford the lady an opportunity to come down here and be heard on any aspect of the proceeding including the issue of jurisdiction.
Based on this ruling, the court entered an order dated May 14, 1990:
1. This court retains continuing jurisdiction of the custody issue with regard to Kareem Tahan.
2. The prior Order of this court dated November 30, 1989 shall remain in full force and effect.
3. This court will reconsider upon hearing and the testimony of the parties any issue raised by the defendant, including a jurisdictional argument.
Inexplicably, the motion judge's ruling did not address applicability of the Convention, though the mother expressly relied upon it as the basis for relief.*fn2
On October 12, 1990, the mother renewed her application for custody, relying on the Convention. On November 15, 1990, in a lengthy oral opinion, the court determined that the mother's application was beyond the one-year limitation period contained in the Convention. The court measured the one-year period from June 24, 1989, which apparently is the date the child commenced summer visitation with his father. The court stated:
The child in this instance was present in New Jersey for more than one year prior to the Defendant's present application. Even if viewed as a continuation of the March 1990 application, Defendant should have filed through additional pleadings, as permitted by court order, not later than June 24, 1990. Alternatively, if Defendant's present application is a new application and not an extension of the March/April proceedings, Defendant's proper recourse was to appeal this Court's decision contained in the order dated May 14, 1990.
Thus, this Court can conclude that consistent with the language of the Federal legislation, this Court is not bound to return Kareem to Canada and relinquish jurisdiction to the Canadian court.
The mother's application under the Convention was first made within a few months of the father's August 1, 1989 application for custody. She renewed her application in March 1990, still within one year of the child's return to the United States, and well within one year of the father's August 9, 1989 expression of his intent to retain custody contrary to the Canadian judgment. The record establishes that the December 10, 1990 order resulted from a continuation of the application filed on March 23, 1990. This is so because on April 20, 1990 the motion judge stated that he did not want to decide the issue
on the papers; he wanted a plenary hearing. The judge declared: "I will afford the lady an opportunity to come down here and be heard on any aspect of the proceeding including the issue of jurisdiction." The May 14, 1990 order reflects the provisional character of the ruling. It did not specifically deny the mother's application; it ordered that the November 30, 1989 order "shall remain in full force and effect"; it retained jurisdiction; and, it provided for reconsideration "upon hearing and the testimony of the parties."*fn3
The Convention was adopted "to secure the prompt return of children wrongfully . . . retained in any Contracting State," and "to ensure that rights of custody . . . under the law of one Contracting State are effectively respected in the other Contracting State." Convention art. 1a and b. Retention of a child is wrongful under the Convention "where it is in breach of rights of custody attributed to a person . . . under the law of the State in which the child was habitually resident immediately before the . . . retention." Convention art. 3a. In the present case the father's retention of custody after expiration of his right of summer visitation violated the Canadian custody decree. The father's contention that the Canadian court lacked jurisdiction to award custody to the mother is without merit. The orders and judgments of the Canadian court recite the father's voluntary submission to the court's jurisdiction. The record of the Canadian custody trial and other circumstantial evidence corroborate the father's voluntary submission of the custody issue to Canada's jurisdiction. The New Jersey trial judge so found in his November 15, 1990 opinion, and his finding on that issue is supported by substantial credible evidence in the record. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974).
The New York Supreme Court reached the same conclusion in Sheikh v. Cahill, 145 Misc. 2d 171, 546 N.Y.S. 2d 517 (Sup.Ct.1989), under facts remarkably similar to the present case. In Sheikh, the mother had taken the child to England in violation of a custody order of a New York court. The father, upon locating the mother and child, went to England where he commenced a wardship proceeding in the High Court of Justice Family Division. Eventually the English court awarded custody to the mother and granted the father visitation rights in the United States. During one of the child's visits, the father refused to return the child to the mother in London.
Plaintiff argued in New York that the Convention did not apply because the English court's decree, being contrary to the earlier New York custody decree, was a nullity. This argument was rejected:
The problem with this analysis is that plaintiff did not take this court's order to the High Court of Justice to petition for enforcement under the Hague Convention. Rather he commenced a wardship proceeding in the High Court of Justice. He thereby submitted himself to the jurisdiction of the foreign court so that it could make a de novo custody award in part based upon defendant's actions in New York. Not being satisfied with the results of that strategy, plaintiff cannot now come back to this court to ask it to ignore the custody/visitation decision and order of a court of a Hague convention consignatary nation which was subsequent to the decision and order of this court. Plaintiff's remedies lie in the appellate procedures of the courts of the United Kingdom not a collateral attack in the New York State courts.
Id. at 175, 546 N.Y.S. 2d at 520. The court concluded that the father wrongfully had retained his child after expiration of his visitation period and ordered the child's return to his mother as required by the Convention.
In the present case the child was "habitually resident" in Canada "immediately before the removal or retention." Convention art. 3a. The father's retention of the child in New Jersey violated the Canadian custody order and, therefore, was "in breach of rights of custody attributed to a person [the mother] . . . under the law of the State [Canada]" of the child's habitual residence. Ibid. Cf. Meredith v. Meredith, 759 F. Supp. 1432 (D.Ariz.1991) (mother had mere physical possession of child in England and no legal rights of custody; England
not child's habitual residence, therefore, Hague Convention not applicable).
If a child has been wrongfully retained and "a period of less than one year has elapsed from the date of the wrongful . . . retention" to the commencement of proceedings for the child's return, "the authority concerned shall order the return of the child forthwith." Convention art. 12. There are, however, exceptions to the Article 12 requirement.
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 --
a. the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or
b. 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.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
The President of the United States, "by and with the Advice and Consent of the Senate" has the power to make treaties. U.S. Const. art. II, § 2, cl. 2. Treaties made under the authority of the United States "shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641 (1920). See K.S.B. Tech. Sales v. No. Jersey Dist. Water Supply, 75 N.J. 272, 280-81, 381 A.2d 774 (1977). "A state law must yield when it is inconsistent with or impairs the policy or provision of a treaty." Ibid. Contemporaneously with ratification of the Convention by the United States, Congress adopted procedures to implement
it. 42 U.S.C.A. § 11601 et seq. See generally Matter of Mohsen, 715 F. Supp. 1063 (D.Wyo.1989). The implementation statute grants to state courts and United States district courts "concurrent original jurisdiction of actions arising under the Convention." 42 U.S.C.A. § 11603(a). The statute requires that the court in which an action under the Convention is brought "shall decide the case in accordance with the Convention," 42 U.S.C.A. 11603(d). Thus, if a petitioner establishes the prerequisites to invocation of the Convention, its application is mandatory and the child must be returned, subject only to the exceptions contained in Article 13. Sheikh v. Cahill, supra. The statute provides that a person opposing the return of a child "has the burden of establishing -- (A) by clear and convincing evidence that one of the exceptions set forth in Article 13b . . . of the Convention applies." 42 U.S.C.A. 11603(e)(2)(A).*fn4
We conclude that the mother timely applied for return of the child under the Convention and that the Convention is applicable because Canada was the child's habitual residence and the father wrongfully retained the child after his 1989 summer visitation. The case must be remanded to the trial court to determine the applicability of the exceptions contained in Article 13b, particularly the second paragraph of that subarticle.
Reversed and remanded for further proceedings consistent with this opinion.
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
The States signatory to the present Convention.
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody.
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.
Have resolved to conclude a Convention to this effect and have agreed upon the following provisions --
CHAPTER I -- SCOPE OF THE CONVENTION
The objects of the present Convention are --
a to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
The removal or the retention of a child is to be considered wrongful where --
a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement ...