Hemard v Hemard (N.D.Texas 1995) Civil Action File Number 7-94-CV-110X ================================================================= UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION CIVIL ACTION, FILE NUMBER 7-94CV-110-X ERICK MARIE HEMARD ) Plaintiff ) ) ) ORDER DIRECTING RETURN OF V. ) MINOR TO COUNTRY OF ) HABITUAL RESIDENCE JACQUELINE PILE HEMARD ) Defendant ) On the 8th day of February, 1995, the Court heard Plaintiff's Petition for Return of the Child pursuant to the Hague Contention. Plaintiff, ERICK MARIE HEMARD, appeared in person and by attorneys, Jody L. Johnson and Cyndi L. Schenk. Defendant, JACQUELINE PILE HEMARD, appeared in person and by attorneys, Bruce Martin and Eleanor Bibb. All matters of law and of fact were submitted to the court, and the Court heard the evidence and considered the pleadings and argument of counsel. The record of testimony was duly reported. This order is made under the authority of 42 U.S.C. 11603(a), conferring upon this Court original and concurrent jurisdiction with federal district courts of the United States. The Court finds that the habitual residence of the minor child JENNIFER JACQUELINE HEMARD is France. IT IS ORDERED that, pursuant to the provisions of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 October 1980 and/or the International Child Abduction Remedies Act, 42 U.S.C. 11601 et seq, Christian Hemard (paternal uncle) and France Pile (maternal aunt), shall return the minor child, JENNIFER JACQUELINE HEMARD, who was born on May 10, 1985, to the sovereign nation of France on or before February 10, 1995. Christian Hemard and France Pile are ORDERED to board with JENNIFER JACQUELINE HEMARD on Northwest Flight #696 at the Dallas - Fort Worth Airport on February 10, 1995, which departs at 4:00 p.m. for Detroit, Michigan, USA, and are further ORDERED to board with JENNIFER JACQUELINE HEMARD on Northwest Flight #50 at the Detroit Metropolitan Airport on February 10, l995, which departs the Detroit Metropolitan Airport at 9:00 p.m. and arrives at Charles De Gaulle Airport in Paris, France on February 11, 1995 at 10:30 a.m. Upon arrival in Paris, France, Christian Hemard is ORDERED to directly take the child, JENNIFER JACQUELINE HEMARD, to his residence, 17 Avenue des Etats-Unis, 78000 Versailles FRANCE, and to retain possession of the child until such time as the Tribunal de Grande Instance de Paris makes further orders. The injunction granted below shall be effective immediately and shall be binding on ERICK MARIE HEMARD, JACQUELINE PILE HEMARD, CHRISTIAN HEMARD, FRANCE PILE; on their agents, servants, and attorneys; and on those persons in active concert or participation with them who receive actual notice of this ORDER by personal service or otherwise. The requirement of a bond is hereby waived. IT IS ORDERED that ERICK MARIE HEMARD, JACQUELINE PILE HEMARD, CHRISTIAN HEMARD, FRANCE PILE; their agents, servants, attorneys, and employees, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise are enjoined from: Removing the child, JENNIFER JACQUELINE HEMARD, from the jurisdiction of this court for any purpose other than returning the child directly to Paris, France pursuant to this ORDER. IT IS FURTHER ORDERED that the suit affecting the parent-chIld relationship pending in the 89th Judicial District Court of Wichita County, Texas, being cause No. 143,428-C, styled "In the Interest of Jennifer Jacqueline Hemard, A Child", shall be dismissed immediately upon the entry of this order. IT IS FURTHER ORDERED that each party shall be responsible for payment of his/her own attorney's fees and costs. THEREFORE, TO ANY PEACE OFFICER IN THE STATE OF TEXAS OR TO ANY FEDERAL OFFICER: You are hereby ORDERED AND COMMANDED to enforce the instant ORDER ordering Christian Hemard to remove the above named minor from the United States of America and return her to France, and to allow Christian Hemard and France Pile to accompany her to France, giving said Christian Hemard the right to have said child in his lawful possession upon arrival in Paris, France and while in the united States, for the purposes described herein. This Order RENDERED on February 8, 1995 and ministerially signed on the date below. The Court finds that more specific findings of fact and conclusions of law with be forthcoming. SIGNED this 9th day of February, 1995 /s/ Joe Kendall ______________________ The Honorable Joe Kendall United States District Judge ================================================================= UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION CIVIL ACTION, FILE NUMBER 7-94CV-110-X ERICK MARIE HEMARD ) Plaintiff ) ) ) FINDINGS OF FACT AND V. ) CONCLUSIONS OF LAW ) JACQUELINE PILE HEMARD ) Defendant ) Pursuant to the hearing in the above referenced matter on February 8, 1995, the Court makes the following findings of fact and conclusions of law: FINDINGS OF FACT 1. Jennifer Jacqueline Hemard was born in France on May 10, 1985. 2. Jennifer Jacqueline Hemard is a French Citizen. 3. Jennifer Jacqueline Hemard's parents, Jacqueline Pile Hemard and Erick Marie Hemard, are French citizens. 4. Jennifer Jacqueline resided continuously in France from the date of her birth until on or about October 15, 1993. 5. On or about August 1, 1993, Jacqueline Pile Hemard separated from her husband, Erick Marie Hemard, and left Jennifer Jacqueline Hemard in the care, custody and control of Erick Marie Hemard. 6. Jacqueline Pile Hemard did not exercise visitation with the child during the month of August 1993. 7. Jacqueline Pile Hemard exercised visitation with the child on Wednesdays and weekends during the period September 1, 1993 until on or about October 15, 1993. 8. During the period August 1, 1993 until on or about October 15, 1993, Erick Marie Hemard was responsible for the care of the child. 9. On or about October 15, 1993, Erick Marie Hemard caused to be served a Writ of Summons of Divorce Conciliation in Paris, France on Jacqueline Pile Hemard claiming adultery, abandonment, and seeking the family domicile and exclusive custody of the child, Jennifer Jacqueline Hemard. The Court finds that Jacqueline Pile Hemard had actual notice of these proceedings and the relief being sought by her husband. 10. On October 15, 1993 Jacqueline Pile Hemard picked up the child from her school, Sainte Ursule, in Paris, France. 11. Jacqueline Pile Hemard told Erick Marie Hemard that she would return the child to Erick Marie Hemard on October 16, 1993 at noon. 12. Jacqueline Pile Hemard intentionally failed to return the child on October 16, 1993 at noon, wrongfully abducted the child, and left France. 13. Jacqueline Pile Hemard had notice of the institution of the divorce proceedings in Paris, France filed by Erick Marie Hemard prior to the hearing on November 3, 1993 in the Paris Court. 14. Jacqueline Pile Hemard wrongfully removed the child from Paris, France on October 15, 1993 to Wichita Falls, Texas, U.S.A. without the knowledge or consent of Eric Marie Hemard. The Court finds the motive for the abduction and flight was to evade the jurisdiction of the French judiciary in the divorce proceedings instituted on or about October 15, 1993. 15. Jacqueline Pile Hemard concealed the location of the child until on or about September 23, 1994 when she filed a child custody suit in the state court of Wichita County, City of Wichita Falls, Texas, U.S.A. 16. There is insufficient believable evidence to support a finding that it is more likely so than not so that the child has been sexually abused by Erick Marie Hemard. 17. The Court finds as suspect the "counseling" the child received and the conclusions reached by the witness Monica Perkins who found "sexual abuse" from what the Court concludes to be benign behaviors by the child. The child, Jennifer Jacqueline Hemard, who has been the recipient of much pressure, now says "Erick" (her father) "touched" her but she told no one of this until she was in the United States and had been questioned about this by her mother, Jacqueline Pile Hemard. 18. Erick Marie Hemard filed an Application for Request for Return of Jennifer Jacqueline Hemard with the Office of Citizens Consular, Department of State, Washington, D.C. on or about August 3, 1994. 19. On June 7, 1994 a final divorce was granted in Paris, France awarding sole custody of Jennifer Jacqueline Hemard to Erick Marie Hemard. 20. In July, 1994, Erick Marie Hemard received information from the French Police that Jacqueline Pile Hemard and Jennifer Jacqueline Hemard had entered the United States. 21. In November 1993, Erick Marie Hemard filed a complaint against Jacqueline Pile Hemard for the kidnapping of Jennifer Jacqueline Hemard. 22. Jacqueline Pile Hemard has not allowed Jennifer Jacqueline Hemard to have contact with any friends or relatives in France since on or about October 15, 1993. 23. Jacqueline Pile Hemard told Jennifer Jacgueline Hemard that Erick Marie Hemard is not her real father. 24. Jacqueline Pile Hemard and Jennifer Jacqueline Hemard lived with Ali Bourequat in Wichita Falls, Texas from approximately October 18, 1993 until February 8, 1995. 25. Jacqueline Pile Hemard allowed Jennifer Jacqueline Hemard to call Ali Bourequat "Papa" and to use his last name. 26. Erick Marie Hemard was diligent in attempting to locate Jennifer Jacqueline Hemard and seek her return. II. CONCLUSIONS OF LAW 1. Jennifer Jacqueline Hemard was an habitual resident of France at the time of her removal from France. 2. Erick Marie Hemard had custody rights with respect to Jennifer Jacqueline Hemard at the time of her removal from France. 3. Erick Marie Hemard was exercising his custody rights with respect to Jennifer Jacqueline Hemard at the time of her removal from France. 4. Jacqueline Pile Hemard wrongfully removed and/or retained Jennifer Jacqueline Hemard from France. 5. A period of less than one year elapsed from the date of the wrongful removal and/or retention until the date of the commencement of proceedings before the administrative authority in the United States. 6. The time for commencing proceedings before the judicial authority was tolled pending the location of the child. 7. There is no clear and convincing evidence that there is a grave risk that the return of Jennifer Jacqueline Hemard to France would expose her to physical or psychological harm or to an intolerable situation. 8. There is no clear and convincing evidence that the fundamental principles of the United States relating to the protection of human rights and fundamental freedoms prevent return of the child to France. 9. Although this is a very bright nine year old child, under all of the circumstances it is not appropriate to consider her views with respect to being returned as dispositive. 10. Without question, the French judiciary should adjudicate any and all matters in controversy between these parties, all of whom are French citizens. IT IS SO ORDERED. SIGNED THIS 15th DAY OF FEBRUARY, 1995. /s/ Joe Kendall ____________________________ JOE KENDALL UNITED STATES DISTRICT JUDGE ================================================================= UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION CIVIL ACTION, FILE NUMBER 7-94CV-110-X ERICK MARIE HEMARD ) Plaintiff ) ) ) FINAL JUDGMENT V. ) ) JACQUELINE PILE HEMARD ) Defendant ) In accordance with the Court's announcement in open court at the hearing in the above referenced matter on February 8, 1995, and based on the Court's findings of fact and conclusions of law entered on February 15, 1995, the Court hereby ORDERS and ADJUDGES that the Petition for Return of Child Pursuant to the Hague Convention Treaty, which was filed with this Court on November 16, 1994, is in all things GRANTED. The Clerk of Court is instructed to close this case. IT IS SO ORDERED. SIGNED THIS 15th DAY OF FEBRUARY, 1995. /s/ Joe Kendall ____________________________ JOE KENDALL UNITED STATES DISTRICT JUDGE