Kathryn Delacourt v. Emmanuel Delacourt (2012)

MEMORANDUM OF DECISION ON CUSTODY AND PARENTING PLAN

The issue before this court is to determine the appropriate custody and parenting plan between the defendant, a citizen of France who resides in France, and the plaintiff, a citizen of the United States who resides in California, with respect to their ten-year-old son.¹

NATURE OF PROCEEDINGS

On July 7, 2011, pursuant to a dissolution action filed on April 14, 2011, this court accepted an agreement of the parties that provided for a custody and parenting plan for the minor child, Ryan Delacourt, born on August 20, 2003.   The agreement provided, inter alia, that the defendant would have parenting time with the child in France for six to eight weeks during the summer.   It also provided that the plaintiff, as the primary custodian, would be permitted to relocate with the minor child from Connecticut to the state of California for employment purposes.

In August 2011, the defendant did not return the child to the United States as per the parties' agreement and as ordered by this court.   In response, the plaintiff filed an ex parte request for immediate return of the child.   On August 31, 2011, with all parties present, either in person or telephonically, this court heard testimony and ordered the child's return to the plaintiff by a date certain.   The defendant was admonished over his unilateral decision to keep the child in France and violating court orders.   He was advised that his failure to return the child would result in this court issuing orders giving sole custody to the plaintiff with visitation suspended or to take place only in the United States.   The defendant indicated that although he no longer agreed with the stipulation of July 7, 2011, he would comply with this court's order.   The child was returned within the ordered timeframe.

On October 4, 2011, the plaintiff and the defendant appeared telephonically and this court appointed a guardian ad litem to represent the interests of the minor child and to report back to the court on the custody/parenting plan issues.

On December 22, 2011, after a full trial, the marriage of the parties was dissolved.   The court issued a decision from the bench with respect to the dissolution and the concomitant property distribution issues.   The court also issued temporary orders on the custody and parenting plan, but indicated that it would need further time to consider the testimony and the briefs filed, particularly with respect to Hague Convention concerns raised.   The plaintiff now objects to the child traveling to France for parenting time with the defendant for the foreseeable future for a variety of reasons including the defendant's failure to return the child as scheduled in August 2011.

FINDINGS OF FACT

The parties, an American plaintiff and a French defendant, lived together in France from 1998 to 2008.   They married in Rockport, Maine on August 9, 2000.   The child, Ryan Paul Alan Richard Delacourt, was born in France on August 20, 2003 and has dual national status.   When the child was five years of age, the parties decided to move to Windsor, Connecticut because jobs were scarce where the parties lived and because the plaintiff was offered a teaching position at the Loomis–Chaffee School.   The plaintiff relocated to Windsor, Connecticut with the child in 2008 while the defendant delayed his relocation and placed the family home for sale in France.

Over the next few years, the marriage appeared to break down.   The defendant was unable to procure a “green card” and he never joined his wife and son in the United States.   In December of 2008, the plaintiff returned to France with the child for the Christmas holidays.   In the summer of 2009, the defendant and paternal grandparents stayed in the plaintiff's house in Connecticut for three weeks then took the child back to France to visit until the end of the summer.   In the spring of 2010, the child's paternal aunt and cousins came to visit the child in Connecticut.   During the summer of 2010, the plaintiff brought the child to France for his summer visit.   All of these child exchanges were apparently without incident and the child was returned to the plaintiff as scheduled.

The plaintiff filed for dissolution of marriage in April 2011.   That event appeared to trigger a series of incidents which resulted in the July 2011 stipulation of the parties and the subsequent events of August 2011 previously mentioned.   Upon the child's return to the United States in September 2011, he was difficult, angry and disrespectful to the plaintiff.   He made racist comments about black people, negative comments about women and negative comments about Los Angeles and the United States.

The issue presented to this court is whether to allow a now ten-year-old child who was born in France as a dual national to a mother who is a United States citizen and to a father who is a citizen of France, to visit with his father in France.   The plaintiff is concerned that by allowing the child to visit in France, the defendant will pressure the child to stay in France and/or the child will not be returned to the plaintiff as ordered.   She is concerned that despite France being a signatory to the Hague Convention, it will be an onerous, time-consuming and expensive process to regain custody of her child should he not be returned as scheduled.   She is also concerned that the child will continue to be exposed to racism and sexism and that the defendant and his family will try and turn the child against the plaintiff and the United States.   She does not believe that allowing the defendant's parenting time to take place in France will be in the child's best interests because he has been diagnosed with Attention Deficit Disorder and he requires regular scheduling and consistency.   Finally, the plaintiff argues that the child no longer wants to visit the defendant in France, no longer chooses to speak French and is now more American than French.

This court has reviewed the provisions of the Hague Convention and the implementing provisions of France and the United States.   The Hague Convention is well-established and governs the issues of international child custody.   The Hague Abduction Convention came to fruition between the United States and France on July 1, 1988.²  The “principal object of the Convention, aside from protecting rights of access, is to protect children from the harmful effects of cross-border abductions by providing a procedure designed to bring about the prompt return of such children to the State of their habitual residence.” ³  The Convention is based on the premise that the wrongful removal or retention of a child across international boundaries is not in the best interests of the child, and that the return of the child to the State of habitual residence will promote his or her interests.

Notwithstanding the aim of the Hague Convention to assure prompt return of children to their habitual residence, this court finds that the legal process for retrieving a child who has been retained unlawfully in France as well as other countries such as the United States, can be protracted, expensive and time-consuming.   This court also finds that the United States is this child's country of habitual residence.

CONCLUSION AND ORDERS

This court has considered the testimony of both parties as well as the observations and recommendations of the guardian ad litem.   The defendant's ability to raise his child has been curtailed by both parties' initial decision to relocate to the United States from France in 2008 and by the defendant's subsequent inability or unwillingness to follow the plaintiff.   The defendant's access to the child was compromised further by the plaintiff's subsequent move to accept new employment on the west coast of the United States, which the defendant agreed with.

While the concerns of the plaintiff are understandable given the events that occurred after the summer visit in 2011, this court must balance those concerns with the absolute imperative that this child maintain his ties to the defendant and his paternal extended family both in language and culture.   It is compelling to the court that when the court warned the defendant of the ramifications of ignoring the parties' agreement and order of the court, he complied with the court's directive.   Just as this court was not swayed by the defendant's argument that his child “wishes to remain in France,” this court is also not swayed by the plaintiff's arguments that the child “does not want to go to France.”   This court believes that the defendant will abide by all of the expectations and orders, will act in the child's best interests, and that the parties will act to maintain and respect the fact that their child has two heritages of equal importance.

Habitual residence

This court finds that the United States is the child's country of habitual residence.

Custody

The Plaintiff is granted sole legal custody of the minor child.

Documents

The defendant shall immediately provide any documentation regarding the minor child (i.e. birth certificate, livret de famille (“family book”)) to the Plaintiff.

Parenting Schedule

The Defendant shall have parenting time with the minor child as follows:

1. Summer 2012:  three consecutive weeks during the summer, parenting time to take place in France.

2. Should there be full compliance with the 2012 schedule, the defendant shall have 6 weeks of parenting time per year as follows:  two nonconsecutive one-week visits per year as allowed by the school calendar and four (4) consecutive weeks during the month of July and any additional time as agreed upon in writing by the parties.   The summer and Christmas visit shall occur in France if the defendant can afford it.   The defendant's remaining parenting time shall take place in California or Connecticut, depending on the plaintiff's work schedule.

3. The defendant shall have access to the child in the United States upon four weeks notice to the plaintiff at any other time than set forth previously.

4. The Plaintiff and Defendant shall share the costs of transportation for the child's summer visit equally.   The Defendant shall assume all other travel expenses.

5. The Plaintiff shall be provided with the child's itinerary and travel for each visit.

6. School Vacations.   If the Defendant proposes visitation during a school vacation and he has properly notified the plaintiff in accordance with section 3 of this document, the defendant's proposed plans shall take precedent over any other proposed plans, including those of plaintiff.   The plaintiff shall provide a copy of the child's school calendar to the defendant at the beginning of each school year.

7. Christmas Holiday.   If Defendant proposes visitation during the Christmas holiday and he has properly notified the plaintiff in accordance with section 3 of this document, the defendant's proposed plans shall take precedent over any other proposed plans in odd years.   The plaintiff's preference shall take precedence in even years.

8. The plaintiff shall make every effort to facilitate a visit between the defendant's parents and other paternal relatives and the minor child if the defendant's relatives propose a visit with the minor child.   Such visit may take place in California or Connecticut depending on the plaintiff's work schedule.

Communication

1. The minor child shall communicate via Skype at least once per week with the defendant.   The communication shall be initiated at 8:00 a.m. (Pacific Time) each Saturday morning by the plaintiff.   The minor child shall also call his father once per week on the way to school in the morning.   If the child is unavailable, a make-up Skype communication shall take place that same weekend.   Additional phone calls and/or communication via Skype shall be encouraged and every effort shall be made to accommodate said contact between the defendant and the minor child.

2. The minor child shall communicate via Skype or telephone at least once per week with the paternal grandparents.   The communication shall be a continuation of the child's communication with the father since the father lives with his parents and they share a phone line and internet access.

3. The plaintiff may be present for the communication between the minor child and the defendant and/or the paternal grandparents.

4. The minor child and defendant shall be free to email each other.   The plaintiff will assist the child in emailing the defendant at least once per week.

5. Both parents shall refrain from making any disparaging remarks about each, and shall avoid any adult conversations, which include discussions of custody, visitation and the child's residence.   Any contact between the child and any other paternal relatives is premised on the same.

6. The defendant shall not attempt to have the child evaluated by any professional without explicit written permission of the plaintiff

7. The parties shall email each other at least once per week in a parenting email to replay any and all events, schedules, concerns, etc., regarding the minor child.   The plaintiff has an affirmative obligation to send the weekly email providing an overall update on the life of the minor child and to answer defendant's questions in the following week's email.

SO ORDERED.

BY THE COURT,

Prestley, J.

FOOTNOTES

FN1. The plaintiff recently relocated to California from Connecticut with the child but Connecticut continues to maintain jurisdiction over the dissolution and child custody issues..  FN1. The plaintiff recently relocated to California from Connecticut with the child but Connecticut continues to maintain jurisdiction over the dissolution and child custody issues.

FN2. U.S. Department of State, International Parental Child Abduction France..  FN2. U.S. Department of State, International Parental Child Abduction France.

FN3. Hague Child Abduction Convention, Outline (1980)..  FN3. Hague Child Abduction Convention, Outline (1980).

Prestley, Linda Pearce, J.