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Tahan v. Duquette

Decided: September 18, 1992.

FRED TAHAN, PLAINTIFF-APPELLANT,
v.
MICHELLE DUQUETTE, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Chancery Division, Family Part, Camden County.

Pressler, R.s. Cohen and Kestin. The opinion of the court was delivered by Kestin, J.A.D.

Kestin

In a prior appeal in this matter, Duquette v. Tahan, 252 N.J. Super. 554, 600 A.2d 472 (App.Div.1991), we held that the Convention on the Civil Aspects of International Child Abduction, adopted at The Hague on October 25, 1980 (the Convention), was effective in the United States as a treaty and applied to the parties. The case was remanded for a limited purpose: "to determine the applicability of the exceptions contained in Article 13b, particularly the second paragraph of that subarticle." Id. at 563, 600 A.2d 472.

The Convention requires the return of a child to the place in which the child habitually resided immediately before a wrongful removal or retention. We determined that the plaintiff, Fred Tahan, was obliged under the terms of the Convention and the statute implementing it, 42 U.S.C.A. § 11601 et seq., to return the child to the defendant, Michelle Duquette, in the Province of Quebec. Under the Convention, the merits of a custody dispute are to be decided in the place of habitual residence by a tribunal with subject matter jurisdiction.

Article 13 of the Convention, however, excuses the duty to return under specified circumstances. One of these, set out in subparagraph b, 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." In remanding, it was our expectation that this issue would be resolved promptly and that the situation of the parties would, juridically at least, be quickly stabilized. The record discloses, instead, that the single, limited issue on remand was not addressed until more than seven months had expired.

On June 24, 1992, the proceeding opened with the court's request for an offer of proof from the plaintiff. Counsel responded that plaintiff would rely upon the testimony of four witnesses. A court-appointed clinical psychologist who had prepared a psychological and bonding evaluation of the parties and the child would testify concerning the subject matter of his

report. The plaintiff himself and his present wife would also testify, addressing the child's "dreams and his desires, his nightmares and fears", as well as his family relationships. The fourth person the plaintiff proposed to call was the child's teacher during the preceding school year "who has probably spent more time with [the child] in the last nine months than anyone other than his father, his step-mother and his baby sister." The purpose of all the foregoing testimony, according to counsel, was to give the court an opportunity "to consider how this child will be affected by the decision today . . . . We have to look at the psychological harm that [the child] will suffer . . . ." Counsel noted that the motivations of the parties would be explored, and concluded: "the clear and convincing evidence . . . will show that there is a grave risk of psychological harm to [the child] if this court disrupts his life now by compelling his return to Canada."

After hearing the response of defense counsel, the trial court ruled that the Article 13b inquiry, concerning physical or psychological harm or otherwise placing the child in an intolerable situation, was not intended to cover factual matter which was subject to being considered in a plenary custody hearing. To do so, the trial Judge opined, would be to usurp jurisdictional prerogatives reserved by the Convention to the courts of Quebec. The court ruled, accordingly, that the proffered testimony would not be heard. The trial court went on to describe the Article 13b inquiry as being limited to the question whether there exists in the place of habitual residence such "internal strife" or unrest as to place the child at risk. The trial Judge explained that, in his view, the focus of the Article 13b inquiry was exclusively upon the jurisdiction involved and not upon the individuals.

The court ordered the child to be turned over to the defendant for return to Canada two days later. The trial court denied a stay pending appeal. The next day, we stayed the order pending appeal and subsequently denied defendant's motion to vacate the stay. We now affirm the ruling of the trial

court and vacate the stay. The trial court shall, within ten days, enter an appropriate order establishing the details concerning the early return of the child to the defendant.

We agree with the trial Judge that the Article 13b inquiry was not intended to deal with issues or factual questions which are appropriate for consideration in a plenary custody proceeding. Psychological profiles, detailed evaluations of parental fitness, evidence concerning lifestyle and the nature and quality of relationships all bear upon the ultimate issue. The Convention reserves these considerations to the appropriate tribunal in the place of habitual residence, here Canada, specifically Quebec. ...


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