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Sunday, August 7, 2016

Tokic v. Tokic, 2016 WL 4046801 (S.D. Texas, 2016) [France] [Petition granted] [Grave Risk of Harm and Article 20 Defenses Not Proven]

In Tokic v. Tokic, 2016 WL 4046801 (S.D. Texas) the petitioner sought the return of his twelve year old and ten year old sons, asserting that on or about April 1, 2016, Jessica Tokic, their mother, abducted them from France and brought them to Texas where they remained. The parties stipulated or conceded that France was the children’s country of habitual residence.  The Court  determined that the respondent’s removal of the children to the United States was a breach of the petitioner’s “rights of custody” under the laws of France. Article 371-1 of the French Civil Code, parental authority is defined as “a set of rights and duties whose finality is the welfare of the child.” “It is vested in the father and mother until the majority or emancipation of the child in order to protect him in his security, health and morality, to ensure his education and allow his development, showing regard to his person.”  Article 371-3 further provides that “[a] child may not, without the permission of the father and mother, leave the family home and he may be removed from it only in cases of necessity as determined by statute.” The court found that petitioner established a prima facie case for return. It rejected, inter alia,  Respondents grave risk of harm” defense. The evidence failed to support the respondent’s claims concerning the petitioner’s abusive behavior. While the allegations made against the petitioner presented serious concerns, the respondent had not presented any actual evidence that the petitioner had a history of abusing the children or that he actually abused them. Although both parties engaged in arguments in the presence of their sons, the evidence did not support the view that one party was any more overbearing or aggressive than another, or that any physical altercation ever ensued. Respondent did not show by clear and convincing evidence that the children would face a grave risk of harm or be subjected to an intolerable situation if they were required to return to France.  It also rejected application of Article 20’s public policy exception, which  is to be invoked only on ‘the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.’ ” Souratgar v. Lee, 720 F.3d 96, 108 (2nd Cir. 2013) The extraordinary nature of the public policy defense is further exemplified by the fact that, to date, no federal court has denied a petition for repatriation based upon this defense.

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