TRANSLATION OF THE FRENCH COURT OF APPEALS DECISION by Annie Wishingrad Los Angeles, California DECISION. ESCALANTE V. PICOT D'ALIGNY D'ASSIGNIES ARGUMENTS In closed hearing, on Monday June 1992 at 2:15 p.m.. DECISION Adversary, Procedurally, "CIRCUIT COURT", in last resort, publicly pronounced on Wednesday July 29, 1992 by Justice BERMOND, President, who has signed with the Clerk of the Court. *** *** *** *** *** DATES AND PROCEDURE Sandra Escalante is the Appellant 1) of an Order issued by the Judge of the Matrimonial Affairs from the Tribunal of Carcassonne on March 22, 1991, qui, pursuant to the stipulation of the parties: - recognized that Patrice Picot d'Aligny d'Assignies promised that he would return to their mother Sandra Escalante two natural children he had acknowledged: Yannick born in 1985, and Audrey, born in 1987, on May 24, 1992 LaBastide, Villespy. - recognized that Sandra Escalante promised not to leave the French territory with her children until the Court ruled on the habitual residence of the children. - continued Patrice d'Aligny d'Assignies'request regarding his exercise of parental authority and the habitual residence of the children and before ruling on said request, - ordered a social inquiry and a psychological evaluation of the children, - temporarily ruled that the habitual residence of the children with their mother, as she had a domicile close to Villespy and residing, while awaiting her relocation, in the castle of LaBastide, - granted a right of visitation and overnight to the father, - set the contribution of the father for the support and education of the children at Two Thousand Francs (FF 2,000.00) per month, - continued the hearing to September 12, 1991 (case written in the general repertory under Number 91-6093) 2) of another order issued by the same jurisdiction on June 20, 1991, which granted Patrice Picot d'Aligny d'Assignies the exercise of parental authority of the two children Yannick and Audrey, set the residence of the children with their father and reserved a right of visitation and overnight to the mother. (case written in the general repertory under Number 91-5498). MEANS AND ALLEGATIONS OF THE PARTIES Sandra Escalante, of U.S. citizenship, argues that she separated from Patrice Picot d'Aligny d'Assignies by reason of his violence and unfaithfulness; that, in the Spring of 1991, her companion had left the family residence taking with him the children, in spite of the fact that she alone had parental authority, and that Patrice thought it more efficient to take the initiative, judicially speaking by requesting that the Judge of the Matrimonial Affairs grant him sole parental authority. The decision of May 22, 1991 is, according to her, nothing but the result of pressure and blackmail exercised upon her in the presence of the magistrate; that is why she decided to "appear to consent" to what was imposed upon her, the only way for her to obtain the return of her children, which return only occurred on May 24. Believing she was still invested fully of the parental authority by reason of the fact that she is an unwed mother and in the absence of a declaration granting joint parental authority, she decided, at the end of May, to leave France to seek refuge at her parents in the U.S. where a procedure relative to similar issues was pending. She contends that the adoption of the stipulation ("donne acte") in the decision of May 22, 1991 did not subject her to any obligation and could not constitute a judicial agreement, since the parties could not freely dispose of their rights on this issue. Sandra Escalante contends that the Order of June 20, 1991 was issued against her Due Process rights, the service of the notice of Hearing having been effectuated on June 6 for a June 10 hearing: the letter of the 'Huissier' having been delivered on Friday She further contends that the first Judge held against her a crime less serious than that Patrice Picot d'Aligny d'Assignies had already committed and would again commit when he kidnapped the children from the United States on October 28, 1991, at the eve of decision by the American judiciary ordering the return of the children to the United States. WMHFN-1 Inasmuch as the first Judge complained that she did not recognize the right of the children "to have a father", Sandra contends the Judge did not hold it against the father that he did not recognize the right of the children to also have a mother. Sandra Escalante further invokes the Hague Convention of October 25, 1980 which seeks to ensure the return of children kidnapped or illegally detained in a contracting country; she contends that she, as the custodian of the children, had legally moved the residence of the children to the United States prior to the issuance of the June 20, 1991 order. She requests that the Order of May 22, 1991 and of June 20, 1991 be reversed and the return of the children to the United States be ordered. She requests Thirty Thousand Francs (FF3O,OOO.OO) pursuant to Article 700 of the New Code of Civil Procedure. Picot d'Aligny d'Assignies retorts that, on May 22, 1991, the parties had appeared at the hearing "under conditions of complete objectivity" and that the agreement took place before the Judge of the Matrimonial Affairs after three (3) hours of negotiations, so that the consent of the mother was free. He explains the departure of his former mate by her desire to avoid the evaluation ordered by the Court, which would have confirmed the allegations contained in the declarations filed with the Court according to which, due to a better aptitude on his part, he assumed not only his role as the father but also the role of the mother. With respect to the regularity of the procedure which led to the June 20, 1991 order, Patrice Picot d'Aligny d'Assignies contends that the 'Huissier' followed the provisions of Article 659 of the New Code of Civil Procedure and that further Sandra should not been heard to complain about not being able to organize her defense, as she had left leaving no forwarding address and having broken her judicially adopted stipulation. On the substance, the respondent has filed various declarations and a report of a "psychological examination" of the children done by a psychiatrist, all of which evidencing that Patrice Picot d'Assignies d'Aligny and his new mate are well-suited to care for the children, whereas the mother had shown on numerous occasions her inability to parent and her lack of interest. With respect to the Hague Convention Petition, Patrice Picot d'Assignies d'Aligny claims that the Order of May 22, 1991, in forbidding the mother to leave the French territory, deprived her of her sole custody and created a form of joint custody, so the American authorities should allow the decision of June 20, 1991 to prevail. He requests that the two (2) orders be affirmed and requests Thirty Thousand Francs (FF3O,OOO.00) pursuant to Article 700 of the New Code of Civil Procedure. The parties further exchanged certain closing documents to revise and develop their respective arguments but with no new evidence. The Public Minister submits for ruling. WHEREAS THE COURT, WHEREAS, in the interest of a good administration of Justice, it is appropriate to consolidate the case listed in the general docket as number 91-5498 and the case listed as number 91-6093; WHEREAS SANDRA ESCALANTE cannot be trusted when she claims that, on May 22, 1991, the first Judge should not have condoned the pressures exercised upon her or would even have participated to these pressures; and that she further in her own pleadings concedes that she "appeared to consent" to what was asked from her, in response to the crime previously committed by the father; WHEREAS, in a matter such as the exercise of parental authority and the manner in which it is exercised, the parties are not free to make their own agreements; and that even in the presence of a Judge of the Matrimonial Affairs they could not enter into irrevocable stipulations which would constitute judicial obligations; while it is not forbidden for the parties to make certain agreement before a Judge, nor it is forbidden for the Judge to adopt these agreement, such agreements only have moral value and their violation can only constitute a fact for consideration in the ultimate resolution; WHEREAS the ordinance of May 22, 1991 had no judicial effect in that it only adopted the mother's agreement not to leave the French soil with her children until final determination, that more specifically, such a decision did not in effect deprive Sandra ESCALANTE of a parcel of the parental authority she had as the natural mother of the children; that in leaving France with her children for the United States where she returned, according to the stamps on her passport on May 30, 1991, Sandra ESCALANTE undoubtedly violated the agreement made the preceding May 22 but simply exercised her rights as the natural mother of the children; WHEREAS Sandra ESCALANTE, who had left her French domicile with no thoughts for return as early as May 26, 1991 should not complain of the short notice between service and hearing on June 10, 1991, as it is obvious that a longer notification would not have allowed her any better to organize her defense, she being solely responsible for the violation of the due process she alleges; BUT WHEREAS, it was reversible error for the Judge of June 22, 1991 to have based his decision on Sandra's violation of the May 22 agreement and on " the rights of the children to have a father"; that Patrice Picot d'Assignies d'Aligny showed that he would not stop at violations far more serious than those the first Judge complained of on the mother's part; that, since the children are natural children, their "right to have a father" is based upon the prominently recognized right of the mother in accordance with Article 374 of the Civil Code, a right the exercise of which Sandra ESCALANTE has been deprived due to the crime perpetrated by the father on October 28, 1991; WHEREAS, in settling in the United States beginning May 30, 1991 with her children, Sandra ESCALANTE was invested of a custodial right pursuant to Articles 3 and 5 of the Convention of October 25, 1980 regarding the civil aspects of International Kidnapping of Children; that, by reason of the legitimate domicile of the children in the United States where they had their habitual residence, the American court was the only court competent to rule on the issue of the custody of the children; whereas, in kidnapping the children from the United States, before a decision by the American court, Patrice Picot d'Aligny d'Assignies falls within the purview of Articles 3, 29 and 30 of the Hague Convention, irrespective of the French decision of June 20, 1991; WHEREAS it will be incumbent upon Patrice Picot d'Aligny d'Assignies to petition the Court of the residence of his children as that residence shall be fixed by the mother, to grant him visitation rights; WHEREAS Patrice Picot d'Aligny d'Assignies , who had requested the sum of Thirty Thousand Francs (FF3O,OOO.00) under the provisions of Article 700 of the Code of Civil Procedure, inasmuch as he did not prevail, should not complain that a sum in the same amount is awarded to the appellant: FOR THESE REASONS; The court orders that the Case number 91-5498 shall be consolidated to Case number 91-6093, Procedurally: orders that Sandra ESCALANTE's appeal be granted, Substantively, declares there are grounds for her appeal and rejecting, Declines Patrice Picot d'Aligny d'Assignies' request to be granted the custody of his naturel children Yannick and Audrey, Orders that the children be returned to their mother Sandra ESCALANTE, Orders Patrice Picot d'Aligny d'Assignies to pay to Sandra ESCALANTE the sum of Thirty Thousand Francs (FF 30,000.00) pursuant to Article 700 of the New Code of Civil Procedure, Rejects the parties' further or other requests, Orders Patrice Picot d'Aligny d'Assignies to pay the costs, Authorizes direct recovery of the appeals costs by the Law Firm of CAPDEVILA, based upon its representation that it has advanced said costs. Order which has been signed by Justice BERMOND, President and by Ms COMTE, Clerk. -------------------- 1. See ESCLANT.CA on HILTON HOUSE BBS for the text of this decision.