NEW YORK (WOMENSENEWS)–A federal court of appeals has ruled that two French children, abducted and brought to the United States by their abused mother, may stay in the country.

The court upheld the ruling of U.S. District Court Judge Denny Chin of the Southern District of New York that repatriation to France would put the children Marie-Eline, 9, and Francois, 5, at “grave risk of psychological harm.”

Women’s advocates are hailing the recent decision for recognizing the serious effect of domestic violence on children who witness and suffer it.

The U. S. government brief supported the father and described allegations of his domestic violence as “becoming more ordinary.”

Bridget K. Allison, an attorney in Washington, D.C., said the appeals court decision sent the message that, “Just because domestic violence is prevalent, doesn’t mean that it is ordinary.” Allison co-authored a brief supporting the mother for the NOW Legal Defense and Education Fund. (NOW Legal Defense is the publisher of Women’s Enews.)

Both the governments of France and the United States had pressed for the return of the children to France, citing the responsibility of the United States to abide by the terms of the Hague Convention on the Civil Aspects of International Child Abduction, the international treaty applied to cases of international child abductions.

Drafted in part to prevent a parent embroiled in a custody dispute from abducting a child abroad in search of a friendlier court, the convention states that an abducted child must be speedily returned to the country of origin.

Return of Abducted Child Not Required If Harm Possible

One of four exceptions to this rule, however, states that the return of the child is not required if that return “would expose the child to physical or psychological harm.”

Lawyers for the mother, Marthe Dubois, argued that the domestic abuse the children witnessed and suffered constituted just such an exception. According to Dubois, throughout their seven-year relationship, Felix Blondin, the children’s father, repeatedly beat and threatened Dubois, sometimes in the presence of their children. She also claimed that Blondin beat and verbally abused their daughter, at one point wrapping an electrical cord around her neck and threatening to kill her. Blondin denies the charges.

In 1997, Dubois forged Blondin’s signature on passport applications for her children and fled with them to relatives in New Jersey. Under the terms of the Hague Convention, Blondin sued for the children’s return. In August, 1998, Judge Chin denied Blondin’s petition on the basis that the children’s return to Blondin’s custody would expose them to “physical or psychological harm.”

Blondin appealed the decision. Upon review, the U.S. Second Circuit Court of Appeals sent the case back to Judge Chin, directing him to determine whether the government of France would be able to protect the children from further harm if they were returned to France to await custody proceedings.

In a re-hearing of the case, the government of France offered to provide housing and social and legal services for Dubois while the case was being adjudicated in the French courts. In addition, Blondin would agree not to make contact with the children until a judgment was reached.

Nonetheless, an expert witness for Dubois, Yale University psychiatrist Dr. Albert Solnit, testified that any return to France, would “almost certainly” revive the trauma of the earlier abuse and trigger post-traumatic stress disorder. Judge Chin denied the father’s petition.

Father Fails to Counter Testimony About Psychological Damage

On Jan 4, the U.S. Second Circuit Court of Appeals upheld Chin’s decision, citing, among other factors, the failure of Blondin’s lawyers to present an expert witness to counter the testimony about psychological damage to the children.

Blondin’s lawyers, Manhattan attorneys Valerie S. Wolfman and Sanford Hausler, said that the decision “watered down” the protections of the Hague Convention against child abductions and might backfire on women whose children have been or will be abducted abroad by disgruntled fathers. They added that Blondin is now looking at the possibility of further appeals.

Barry D. Leiwant of the Federal Defender Division of the Legal Aid Society in New York, who represented Dubois, said that the case of Blondin v. Dubois underscores the need for international law to take domestic violence into account in resolving international child abductions.

“The typical child abduction case in the public mind is a father who doesn’t really care about the children as much as getting back at the mother by grabbing the children and running,” Leiwant explained. “But more and more, you have battered women in relatively desperate circumstances who see no alternative but to grab the child and run to escape an abusive father.

“That’s a paradigmatic case that the convention has yet to learn to deal with,” he concluded.

Kristin Choo is a free-lance writer in New York.