SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION-FAMILY PART COUNTY OF CAMDEN DOCKET NO FM-18356-88 A.D. NO. A2023-90 T3 Fred Tahan v Michelle Duquette TRANSCRIPT OF RECORDED PROCEEDINGS Superior Court of New Jersey Hall of Justice Camden, New Jersey 24 Jun 1992 BEFORE THE HON. VINCENT D. SEGAL, J.S.C. Appearances: Carol Oswald, Esq., (Teich, Groh and Frost) on behalf of Fred Tahan. John T. Kubit, Esq., on behalf of Michelle Duquette COLLOQUY THE COURT: This is the matter of Fred Tehan versus Michelle Duquette, docket number is FM-18356-88. Counsel your appearances please. MS OSWALD: Carol Oswald, of the firm Teich, Groh and Frost, representing plaintiff Fred Tahan. MR. KUBIT: John Kubit representing Michelle Duquette. THE COURT: Is counsel ready to proceed in this matter? MS OSWALD: Yes, your Honor. MR KUBIT: Yes, your Honor. THE COURT: Alright, is there a concession that the burden of going forward is with Miss Oswald and her client? MR KUBIT: Yes, I believe it is, your Honor. MS OSWALD: It's conceded. THE COURT: And do you understand that that burden is by clear and convincing evidence? MS OSWALD: I do, your Honor. THE COURT: May hear from you as to how you intend to proceed in this matter, what you intend to show me? MS. OSWALD - ARGUMENT MS OSWALD: We intend to show that Article 13 of the Hague Convention, which indicates: Notwithstanding the provision of the preceding articles in the convention, the judicial or administrative authority of the requested state, which obviously is this court, is not bound to order the return of the child, in this case Karim Tahan, if the person, institution or other body which opposes its return, which in this case is Fred Tahan, establishes that -- and then sub-section B of the article indicates thee is a grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation. And we believe that's what we're here to talk about today. We are not talking about children in England, as reference in some of the cases cited by Mr. Kubit, or children in Switzerland or children in Australia, as Mr. Kubit's memo refers to. We're talking about karim Tahan, the nine year old son of Fred Tahan and Michelle Duquette, who for the past six years has been involved in this litigation which leaves in his mind a doubt as to what the future holds for him. This Court must decide after this hearing whether Karim will be granted the peace of mind of knowing that he will continue to enjoy the daily love, affection and companionship of his father, his baby sister and his step-mother. This Court has to decide whether or not Karim is going to be allowed to return to Holy Rosary School, whether he's going to be able to continue to play soccer with his team, whether he's going to be able to continue to play AA Little League, and in effect continue the life that he has come to know and love and understand the three years. Mr. Tahan is going to ask that this Court listen to the testimony and consider the reports of Doctor Gruen, who has now known Karim and spent hours of time with Karim over the last five years. We're further going to ask that this Court listen to the testimony of his grade school teacher, Lisa Dugan, who has probably spent more time with Karim in the last nine moths during the school year than anyone, other than his father, his step-mother and his baby sister. We're further going to ask the Court to consider the testimony of Mr. Tahan and his wife Claudia, who will attempt to share with this Court Karim's dreams and his desires, his nightmares and his fears, and probably most importantly try to explain to this Court the confusion and consternation in this nine year old boy's mind who has a mother who says she loves him and yet doesn't understand why if she loves him she has spent half of his life trying to remove from him and remove him from what he has come to know and understand and love. And all she has shown him is that it's her desires and her dreams and her wishes that are important, not his. We hope to show the Court that all that the Hague Convention does at Article 13 is give this Court the right to consider the harm to this child, which I understand we're not pursuing a custody hearing today, but that this Court has the right to consider how this child will be affected by the decision today. And we disagree that it is just a jurisdictional question. It's not just a legal interpretation. We have to look at the psychological harm that Karim will suffer, as referenced by Doctor Gruen. Perhaps we will learn today, depending on the case set forth by Miss Duquette, why Mr. Tahan's offers of visitation over the last three years have not -- she has not taken advantage of them. And perhaps we will learn why in the last four months she has only seen fit to call this child three times, each time for less than five minutes. Perhaps we will learn why her desire to live in Canada is more important than her obligation to have obeyed this Court's order entered back in July of 1987, why her desire to live in Canada in her mind is more important than trying to understand and cooperate with her son's often stated desire, even to her, to live with his father and share a life with his father, and why her desire to live in Canada is so important that she has preferred for the last three years to sacrifice any kind of a relationship with this child simply because it meant that she would have to return to the country that she called home for ten years. I have been in this case, as has your Honor, for many years now. And it's my strong desire to see it come to an end for karim's sake. I think the clear and convincing evidence that's about to be presented by the testimony of these witnesses and the reports of Doctor Gruen will show that there is a grave risk of psychological harm to Karim if this Court disrupts his life now by compelling his return to Canada. THE COURT: Mr. Kubit MR. KUBIT -- ARGUMENT MR KUBIT: Thank you, your Honor. At this time I think -- I need to express my concern that this hearing develop into other than the Section 13(b) hearing as it is described in the case law. And the case law clearly describes that Section 13(b) is a jurisdictional issue and the issue which needs to be presented is whether or not return to Canada is going to present grave risk of psychological harm. I think the case law is clearly instructive even down to the case of Zimmerman vs Zimmerman No. 91-14556-S, District Court of Dallas County, Texas (18 Oct 91) which clearly states that we are talking about return to another country, and the salient point is whether the other country has a court system and the court system is able to protect the child. It is not about a custody hearing. Case law specifically says this is not custody, we are not to consider those things, that is the point. And it was described in several cases, and the issue -- the point at that point was if we allow this to become a custody hearing, then we drive a coach and horses, and I believe that's the exact quote, a coach and horses through the Convention and the rest of the Convention is meaningless because we then hold custody hearings any time we want to. WMH-FN1 A custody hearing is not to be held. We have no -- it shouldn't be held, and we don't believe that anything that's been presented or that matter has been described up and until this point can establish that by any standard, much less clear and convincing. At this point I would ask the Court to dispense with this hearing at this point and order the return of the child, as case law indicates,and not to spend any more time and any more angst on this matter. Thank you, your Honor. THE COURT: Miss Oswald would you concede that the thrust of the proofs you wish to present to this Court are contained in the report submitted by Doctor Gruen and in testimony you had hoped to present here with Doctor Gruen live in the courtroom? MS OSWALD: It is not just Doctor Gruen's testimony, it would be the testimony of Mr. Tahan and his wife as well. THE COURT: I know, but that's the thrust of your case, because only Doctor Gruen is qualified to talk about our concept of psychological harm. MS OSWALD: That's accurate, your Honor, I need by expert, as I've indicated to your Honor previously. And as this Court is also aware, Doctor Gruen is not available today or this week. His first availability is June 29 and June 30, but I didn't reserve that time with him, not knowing what the court's -- how the Court intended to proceed. And, your Honor, if I could respond briefly to Mr. Kubit's last comment. The Appellate Division of this state reversed and remanded this case for a hearing on Article 13 which speaks to the psychological harm of this child. It didn't remand this case for purposes of a jurisdictional hearing. Article 13 doesn't have contained in it anywhere the word jurisdiction. It talks about examining the grave risk of psychological harm which would rise to the level of an intolerable situation for this child. And that's what I believe this hearing is meant to do, and I think this Court is compelled to conduct such a hearing. COURT - RULING THE COURT: I think I have to begin by indicating that on the 5th of June I received a letter from Judge Berjeron (phonetic spelling), who heard this matter when it was in Canada, indicating to me what the law was in Canada if there was an interference with custody or visitation, and in fact sending me a copy of the appropriate statute from Canada as well. But in essence what he says in his correspondence, which I will make available to counsel, it's rather short: I will, as much as I can,ensure that Mr Duquette delivers the child to Mr. Tahan for his recognized visits at a minimum. Mrs. Duquette has, to my knowledge, the reputation of respecting laws. I presume that the child's return to her should be enforced in the Untied States as well as it will be in this country. What he's saying is that if the child is returned to Canada, Mr. Tahan would have visitation in accordance with his prior order, and if Mrs. Duquette interfered with that visitation, the courts in Canada would insist that they visitation be enforced. I read this morning and I reread this morning Doctor Gruen's report. I reread it after having that conference with counsel earlier this morning. And the crucial part of Doctor Gruen's report, as I see it from the Standpoint of Mr. Tahan, is at page 6 in the section entitled "Discussion where Doctor Gruen summarizes his observations and his conclusions and assesses what he has learned from the evaluation process which included all the parties. The last part of his summary reads as follows: There is no doubt in my clinical judgment that Karim should suffer sever emotional complications, depression, anxiety, distrust and withdrawal, if he were removed to Canada to live with his mother. In terms of the requirements of Article 13, and I assume he's now referring to the Hague Convention, my best judgment is that Karim would suffer psychological harm and be in an intolerable situation psychologically if he were removed from his father, step-mother and half-sister with whom he is so strongly psychologically bonded. As I indicated to counsel previously, I would accept and counsel's has indicated that this document may be marked in evidence, in fact if counsel has no objection I think Judge Berjeron's letter would be marked in evidence as well. I will accept that Doctor Gruen's testimony if he were hear live in the courtroom, would conform with his report and that he would tell me the same things for the reasons of his evaluation. The question I have is whether or not that is the type of harm that is referenced in the Hague Convention. The history of this matter is really set out fairly well in a summary fashion in the opinion from the Appellate Division at page 2, and I think it bears repeating here: It is necessary to present a detailed chronology of the events which led to the order on appeal. On July 1, 1987, the parties, pending a divorce, entered into a consent judgment for joint custody of their child with each party enjoying physical custody on a "fourteen week alternating schedule." Pursuant to this consent order, the mother was to have physical custody from October 3, 1987 through January 9, 1988 at which time the child was to be returned to the father to begin a fourteen week period of custody. This interim arrangement was to be effective until July 23, 1988. If at that time the parties had not come to a permanent agreement regarding the child's custody, then "the court shall be notified and a hearing will be held in August, 1988." In January, 1988, the mother refused to return the child to the United States from her home in Canada. In February, 1988, the father filed an action in a court in the Province of Quebec for exemplification of the July 1, 1987 consent order. On June 24, 1988, a divorce judgment was entered in New Jersey terminating the parties' marriage and incorporating the July 1, 1987 consent order. In January, 1989, the action in Quebec was converted into a de novo custody hearing. It appears from a January 27, 1989 record of the Canadian court titled "Hearing Report" that the father voluntarily converted the Canadian action for exemplification to a plenary custody action. The translation of the Canadian court -- and it goes on to indicate what the Canadian court had to say about the proceedings there. This record indicates that both parties were represented by counsel. After a trial in which the father participated with counsel, the Canadian court entered a judgment dated May 5, 1989 warding custody to the mother. The judgment recited that originally the proceedings were for "the exemplification or enforcement of a judgment of the Superior Court granted in the State of New Jersey." It noted that the child will be six years old next July and that "it will be in the child's interest to attend school on a yearly regular basis rather than three month periods. The parties were therefore invited and they accepted to consider the proceedings as a joint petition for custody." The court granted custody to the mother from September to June, with summer visitation for the father. The father filed an appeal from this judgment with the appropriate Canadian appellate court. Thereafter, the father abandoned the appeal and his Canadian lawyers petitioned the Canadian appellate court for an order relieving them of their responsibilities. On August 9, 1989, while the child was visiting him in New Jersey, pursuant to the Canadian judgment, the father, proceeding by Order to Show Cause, commenced an action in New Jersey for permanent custody of the child -- and then the matter continued here. Now that recitation of the history of this matter is accurate, as far as I know, and the Appellate Division properly summarized what had happened up until the time the matter came before me again. When the matter came back before me, I was not frankly very familiar with the Hague Convention. As I indicated at a seminar about a couple weeks ago, I don't know if that's because this Court is denser that other courts or counsel didn't make it as clear as counsel should have made it at the time. But, nevertheless, I indicated there would be a hearing on the issue of the return of th child. The application for the return of the child was renewed, and when I ruled that the child would not be returned based on the fact that the child had been here more than one year, that issue was taken to the Appellate Division, which indicated he had misinterpreted the statute and remanded the matter back here. In remanding the matter, what the Appellate Division said to this Court was: If you do not find a reason under Article 13 of the Hague Convention not to return the child to Canada, you must return the child to Canada. The Appellate Division may have well been within it rights at that time to say based on the record that was before the court we will direct that the child be returned to Canada. They could have handled the matter that way, I would think. But I'm not certain at that time that even the Appellate Division was so familiar with the Hague Convention, and with Article 13 being a factor in the convention, it was just as appropriate to remand it back to the trial court to make a determination. Now what I have before me is both the Convention and several cases dealing with that convention. The convention clearly is our federal law. It is a treaty entered into between the United STates and several other nations. The basic premise and majority theory under the convention is that you are not trying a custody case, but merely determining where custody jurisdiction should be under the laws of the treaty. That's what the Convention's about. This is not a issue before this Court as to which parent is better fit or qualified to have custody of a child. In fact, the Court always has some questions about that issue anyhow, having to make those kind of difficult decisions. That's not the issue before this court. The question is jurisdiction. There is no question under the Convention that the -- I want to get the right term. They don't use home state. What is their definition at the Convention? MS OSWALD: Habitual residence. THE COURT: Habitual residence in this case is Canada. The habitual residence is established by somebody being awarded custody or by somebody being entitled to custody even without an order for custody. The custody order in this case is from a Canadian court, and that by definition makes the habitual residence in this instance Canada. And in fact the Appellate Division doesn't disagree with that interpretation, the only question is should there be a contrary ruling by this Court because of Article 13. Now let's look at Article 13: Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -- and we're only talking about Art 13(b) here -- there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. That phrase, in the opinion of this Court, does not make reference to a parent. That phrase, in the opinion of this Court, makes reference to a nation. This is a treaty between nations, about nations and about jurisdiction. One commentator has said about Article 13 the following: Under Article 13 the judicial or administrative authority is not bound to order the child returned if the person, institution or party opposing is not actually exercising custody rights -- which we do not have here, Miss Duquette has custody rights pursuant to a bona fide order of a court in Canada -- or if there is a grave risk that the child's return would expose it to physical or psychological harm or otherwise place the child in an intolerable situation. It appears from cases throughout the world that the definition of this term "grave risk" means a grave risk being exposed to being returned to the country of habitual residence apparently if internal strife in that country has occurred, or if there is danger of the child returning back to said country, that would be a grave risk of danger exposing the child to physical or psychological harm. The mere allegation that the grave risk would be to return the child to the other parent is not sufficient to be a grave risk of danger under the terms of the treaty, at least at this juncture. If one were to allow that argument, the case would then become a custody case with psychological experts testifying as to custody. The purpose of the treaty is to return the case for trial in the forum of habitual residence and not a trial in a forum where the child was abducted. Now those comments come from the materials prepared for the New Jersey Institute for Continuing Legal Education by Robert Arenstein, and are dated 1992. Mr. Arenstein, as I understand it, is an attorney who is licensed to practice both in New Jersey and in New York, who has been -- I don't want to use the word retained -- consulted by the State Department at various occasions, and who has agreed to represent people when the State Department has been involved in these matters to determine whether or not a child would be returned or retained in one of our states' courts based upon the facts of that particular case. In fact, this case could under circumstances not even be before this Court in the same format that it is now, while it might be captioned Tahan and Duquette, I would very well have here at this time representatives from foreign nation and from the State Department, or at leas the State Department, here arguing that the Convention has to be enforced. Because what we're dealing here is with the enforcement of a federal law, a federal treaty, not a custody case. I think Mr. Arenstein's comments make sense. The issue before this Court is jurisdiction, and the question of grave risk deals with returning of a child to a nation, not to a parent. By more correct example, certainly at the present time it would be inappropriate and not good judgment on the part of any court to take a child today and send a child to Yugoslavia based on what is happening in Yugoslavia, if Yugoslavia in fact was a signatory to the convention, because the child would be placed in grave risk. It is not a question before this Court as to whether Mr. Tahan is a good, competent or superior parent; he may be all of those things. Or that Miss Duquette is a adequate or less superior parent; she may be all of those things. The truth of the matter is this Court has never had an opportunity to make a judgment on these people, the reached a consent back in 1987, and the next time the matter was litigated it was litigated before Judge Berjeron in Canada. I understand Doctor Gruen's report and the perspective that he uses to reach his conclusions. It is the common perspective that I would see in every custody case. And this Court has the highest regard for Doctor Gruen, he appears here regularly and has been appointed many times by this Court to act as an expert. He is a caring, sensitive and I think an insightful mental health expert. But I have reviewed, in addition to Mr. Arenstein's comments, the plethora of cases that were sent to me by Mr. Kubit, as well as some additional cases that I had asked for from Mr. Arenstein when I found out that he had source to these materials. I have read -- let me find them so I have them in front of me -- the case of Melissa M. Steigerwalt-Gibson and Michael Ebejer Ontario Provincial Court - Family Division, Number: Welland Registry No. 51/83, Ontario Judgments: [14 Dec 1988] O.J. No. 2481; Gsponer v Johnstone (1988), 12 Fam LR 755, FAMILY COURT OF AUSTRALIA; Zimmerman vs Zimmerma No. 91-14556-S, District Court of Dallas County, Teaxas (18 Oct 91); and Korowin v Korowin District Court of Horgen 4891072U/ER4SV/ez (14 Feb 1992). Those cases all arrived before their respective judges in a different format than this matter comes before me. They were o an expedited track in each case, it appears to me. In each case there was an intervention by the appropriate federal authority of the nation, and it each one of the cases thee was a question under Article 13(b) of the Convention, and each of the courts addressed the question of the Convention in those opinions. In each instance they courts concluded, as I have concluded here this morning, that the proper forum in which to determine whether or not the type of harm that is raised here by Mr. Tahan is going to impact on the child should be heard in the court that has proper jurisdiction. And so regardless of the allegations that were raised by the opposing parent in each instance, whether the mother in one instance was the parent to which the child was bonded, or the father in another instance was an alcoholic and a drug addict, or the father in another instance had been abusive to the mother and there was alleged potential abuse, physical abuse to the child, in every one of thee cases the child was returned to the state of habitual residence for those issues to be determined in that state. And if I went through the facts of the other cases that deal with that that were submitted to me, I'm satisfied that that would be results in the other cases as well. It makes, from the Convention's point of view, no difference how the Court may view the custody circumstances between the parents, because that's not the issue before this Court to decide. It is the question of whether or not Canada is suitably qualified to make rulings regarding the welfare of the child, and I don't think that s at issue at all. Canada has the capacity,the judges in Canada are just as qualified as the judges in the United States or in any other, for lack of a better term, civilized nation. If you were to show me, Miss Oswald, everything you wanted to show me and comment on all those things you just said about the child, his Little League, his schooling, his relationship with his sibling, his involvement in what is now his nuclear family, they are not the factors on which I have to make by determination, they are not before me. It is unfortunate, I think, from the standpoint of all the parties involved and the child that I did not understand the Convention earlier as I can understand it now, because if that had been the case when Mr. Tahan first came here in the summer of 1989 with the child, I believe that's when he came back here and the matter was raised some months thereafter, I would have returned the child to Miss Duquette at that time. Again, not because she is a better qualified or better fit parent, for that's not the determination that I'm making, but because I am compelled to do so under federal treaty. And what complicates this matter is the child has now been in this country for three years, I assume, with the father, and so that the decision that I have to make here this morning is all the more difficult and I can appreciate how it will impact on the child, on Mr. Tahan and his family. If Mr. Tahan believes that custody should be with him, then he is compelled, in my opinion, to go back and litigate that matter in Canada. And if he thinks the conclusions reached by Doctor Gruen, after Doctor Gruen's most recent evaluation are persuasive, he has a right to take that to a Canadian judge, but I don't believe under the Convention he can present material to me because that's not what the Convention is addressing. Under those circumstances I think I]m compelled to return the child to Miss Duquette and have her take the child back to Canada, or if Mr. Tahan tells me, allow him to deliver the child back to Canada, but I'm talking about in a relatively short time. I would only put out as an aside that under the circumstances of the case as they presently exist, certainly Miss Duquette would be entitled to extended summer visitation in any case. If I were retaining jurisdiction, and I'm not, and the child would be going to Canada anyhow for an extended period of time. COLLOQUY MS OSWALD: Can I respond to that, your Honor? If this Court is going to accept that Canada is truly going to enforce Mr. Tahan's visitation rights, he would be returned to Canada and then immediately sent back because Mr. Tahan's visitation rights are at the current time. I understand there's been a disruption in that schedule, and I'm not trying to -- THE COURT: Miss Oswald, I understand that, but I don't know what a Canadian judge will do with that question. MS OSWALD: Judge Berjeron has already responded that he would enforce the visitation rights. THE COURT: But he may look at this matter in the light of the fact that the child has been here for so long and modify his order appropriately. MS OSWALD: Isn't it then incumbent on Miss Duquette to take that argument to Judge Berjeron up in Canada? THE COURT: She can, but she'll also take the child with her. MS OSWALD: But under Judge Berjeron's order the child is supposed to be here right now. THE COURT: No, Miss Oswald, I don't think that's appropriate. I think this is stretching of what my authority would be. MS OSWALD: Your Honor -- THE COURT: Because I could easily envision Judge Berjeron saying that under the circumstances the summer visitation is modified. MS OSWALD: That means that this -- that that court, and if this Court's going to accept that that may be Judge Berjeron's interpretation,that Mr. Tahan would then not see his son for a whole year, because his visitation -- THE COURT: Miss Oswald, I do not know what the outcome will be in front of Judge Berjeron, but I don't believe I have the authority to make the ruling that you're asking for. MS OSWALD: But your Honor can rule that the child has to be returned to Canada in accordance with the Canadian custody order, but that same Canadian order that gives Miss Duquette custody gives Mr. Tahan visitation during the summer. THE COURT: Miss Oswald, the problem with the argument is this matter was originally scheduled for early March. Mr. Kubit had a problem, had to go into the hospital because of his back, and -- MS OSWALD: That was not the delay in this case, your Honor. The delay in this case was from -- because Miss Duquette said she wanted psychological reports. THE COURT: Please, let me finish. That delayed the matter once, and Miss Duquette did not come down for the evaluation process. But, as it turned out, the evaluation process is not dispositive of the decision making process, and that should never have been imposed on the parties in the first place as it turns out. MS OSWALD: You Honor, my argument is, first of all, this case is, as your Honor just indicated from the Bench, the big distinguishing factor here I believe from the cases that you just cited is those case were handled on an expedited basis, so habitual residence had some meaning in those cases. THE COURT: Miss Oswald, you keep going back to what's in the best interest. The habitual residence hasn't changed. If she -- MS OSWALD: But habitual residence has no meaning in this case, Judge. Habitual residence for this child, his habitual residence for seven and a half of his nine years has been the United States. THE COURT: The habitual residence is defined by the Hague Convention, it is not defined by where the child's lived most of his life. MS OSWALD: I think that lends an unrealistic interpretation to habitual residence under the facts of this case. THE COURT: To take your argument would mean that somebody who absconded with a child and disappeared for five years would then establish a new habitual residence. MS OSWALD: Your Honor, the argument I'm getting to, and your Honor probably sees through it, is to compel the immediate return of this child who has lived here for three years, with no preparation, no ability to prepare that child's mind for this sudden move, I can't believe that that in itself won't do grave psychological harm. THE COURT: If you're telling me that Mr. Tahan will make arrangements, today is Wednesday, within a relatively short time to take the child back to Canada, I would not be offended by that. MS OSWALD: What does your Honor define as a relatively short period of time? Because I want your Honor to be aware that Mr. Tahan and I have already discussed the fact that this -- there may be a stay and that there is going to be an appeal based -- if this is your Honor's ruling, and I detect that it is. But what does you Honor define as a relatively short period of time, so that I know how to proceed for purposes of appeal? THE COURT: For purposes of appeal -- MS OSWALD: Do I need a stay? I mean my feeling is I'm going to go to the Appellate Division today. If you're saying the child has to be returned tonight at midnight, I'm going to call the Appellate Division from here and anticipate, you know, ask them to receive some oral argument this afternoon. THE COURT: There's time involved in packing the child and things of that nature. I would not tell your the child had to be back there at midnight. I don't know how long Miss -- how long does your client intend to be in this country, Mr. Kubit. MS. DUQUETTE: I am leaving on Friday, because I have -- I'm teaching on -- I'm a teacher, and then I still have to work on Monday and Tuesday following. But -- THE COURT: I think that Friday would be the time we're talking about. MS OSWALD: That's your Honor's decision then, the child is to be returned Friday? THE COURT: Yes, ma'am, it seems to be appropriate. MR KUBIT: Your Honor, I prepared an order and I left a blank in it in terms of dates. It also in -- THE COURT: Have you shown the order to Miss Oswald? MR KUBIT: No, I have not. I will show it to her right now. But that leaves -- because the order includes other things, and I would at this time under ICARA ask for an award of counsel frees be made pursuant to that statute. And I've submitted my certification, the only modification to that certification is that we did (indiscernible) $300 back, so that we can deduct $296.50, which is the exact amount, from whatever amount is to be shown. MS OSWALD: YOur Honor, if you would hold the decision on counsel fees until I have an opportunity to respond in writing. THE COURT: I will afford you that opportunity, ma'am. MR KUBIT: I can strike that portion of it. THE COURT: Do counsel agree that Doctor Gruen's report should be marked in evidence? MS OSWALD: I do. MR KUBIT: Agreed. THE COURT: As well as the letter from Judge Berjeron? MS OSWALD: I do. MR KUBIT: (No audible response) THE COURT: Please mark those C-1 and C-2 in evidence, the letter first since I made reference to it first, Doctor Gruen's report C-2. MS OSWALD: Your Honor, the form of order prepared by Mr. Kubit doesn't seem to be appropriate based on your Honor's order, since Miss Duquette is staying here until Friday, it would seem that he only has to return the child to Miss Duquette in the County of Camden, whereas this order reads in the Province of Quebec. If your Honor's ordering that the -- THE COURT: You want to prepare another order, Mr. -- MR KUBIT: I'll have it here this afternoon, I'll send it to Miss Oswald by FAX. MS OSWALD: Unless we can just write -- correct this one in writing. I have no objection to that. THE COURT: Let me see what you have there, please. [ - Pause - ] THE COURT: What time is Miss Duquette intending to return to Canada? What are her travel arrangements, Mr. Kubit? MS. DUQUETTE: My plane leaves at quarter to 2:00. MR KUBIT: It appears she's going to leave at approximately 2:00 o'clock, 1:30 to 2:00 o'clock. I would think probably 11:00 o'clock in the morning would be an appropriate time, given the time to get to the airport. THE COURT: She said plane or train? MS. DUQUETTE: Plane MR KUBIT: Plane THE COURT: Does she have transportation arranged for the child? MR KUBIT: Not at this point, your Honor. THE COURT: I have changed the order to indicate, first of all, that the matter was before the court on this day, the return of the child shall be in Camden County, counsel can agree upon the location, not later than 10:00 a.m. on Friday, June 26, 1992. I have deleted the word "have" to "may" in paragraph 2. I need four or five copies of that made. MS OSWALD: Your Honor, can I wait for a conformed copy of the order? THE COURT: I'm having photocopies made right now, Lucy. * * * * * * * * CERTIFICATE I, Carolyn A. Clark, assigned transcriber, do certify that the foregoing is a true and accurate transcript in the matter of Fred Tahan versus Michelle Duquette, heard in Superior Court of New Jersey, Chancery Division - Family Part, County of Camden, before the Honorable Vincent D. Segal, J.S.C., on June 24, 1992, and recorded on Tape No. 3533-92 at Index No. 1429 to the end of tape, and Tape No. 3534-92 at Index No. 0001 to 0117, of that court. June 30, 1992 /s/ Carolyn A. Clark __________________________________ Carolyn A. Clark, AOC No. 122 Compleat Transcribing Service. -------------------- 1. Evans v Evans (20 Jul 1988) Supreme Court of Judicature, Court of Appeal (Civil Division) No. AD 1716 of 1988