Alain Cornec DOCTEUR EN DROIT AVOCAT A LA COUR 11 RUE LINCOLN TEL: (331) 4561 4236 75008 PARIS FAX: (331) 4561 4232 Palais A 104 TO WHOM IT MAY CONCERN I Alain CORNEC, Avocat a la Cour de PARIS, Docteur en Droit, declare and say as follows. I have been a member of the Paris Bar since 1973. I practise in PARIS as an Avocat. My firm deals largely in international legal matters in relation with individuals. I hold a Doctor's degree in Law and am a Master in Languages. I speak English fluently since I have studied it through school and University, and I use it daily in my professional practise. I am a former British Council scholar. I am one of the founding members of the International Academy of Matrimonial Lawyers. I was vice president of the European Chapter of this organization . I have a substantial experience in international divorces, especially with the US, and Hague Convention cases, and probably am the attorney in France who handled most of these matters. I have written and lectured on international jurisdiction and international family problems, including on the Hague convention. I have written on this topic in the French and English legal press. I was asked to speak at the California State Bar Conference in October 1993. I appear as an expert in international matters, generally on jurisdiction or family matters. I am on the list of attorneys of the American and Swedish Consulates in Paris, and represented the French and the Japanese Government. I am asked to advise in the following situation: the married parents of one minor child lived in France. They went on holiday in California in December 1993, keeping their French residence. I am asked to advise if, failing an order of the French Court, the father had "Custody" (in the sense of the Hague convention) under French law? Custody, "parental authority" and residence The Hague convention uses the word "Custody" and looks to the substantive law of the country of habitual residence, here French law. French law now has the concept of "parental authority" to express the legal right of parents over children. It is considered as the equivalent of "Custody" in the sense of articles 3 and 5 of the Hague convention. At the time of drafting of the Hague convention, the French text mentioned "garde" (which is the exact equivalent of custody). The French rules moved, at least in their terminology, but the Hague convention was not amended to reflect this evolution. "Residence" is the French equivalent of "(day to day) care and control". Under the present statute both married parents share "parental authority" on children under art 371-2 of the French Code Civil. Art 371-2 states: This authority belongs to the father and mother, to protect the child's safety, heath and morality. They have regarding the child a right and a duty of custody ("Garde"), and to keep and to educate the child. This "parental authority" is exercised in common by both parents if they are married. (art 372) This is also the case if they divorced. Under article 287 of the Code Civil, relating to divorce, "parental authority" is exercised in common by both parents. Failing an agreement made out of Court, or if this agreement is contrary to the children's interest, the Judge states which parent will have "residence". If the children's interest so demand, the judge can set parental authority with one parent. The agreement of parents or the judge's decision is normally about the place of residence of the children. If divorce does not stop "parental authority" for any parent, de facto separation cannot stop it either. The effect of French law is therefore that divorce, by itself, does not change the rights of a parent concerning a child, any more than if parents have to be separated e.g. for professional reasons. Any factual separation of parents is therefore without any legal effect. As article 5 of the Hague convention states,"Custody" covers "especially the right to decide of his place of residence". In French law, this prerogative is clearly a consequence of "autorite parentale" under art 371-3 Code Civil, stating that the child cannot be removed from the family home without the consent of both the father and mother. How does the "parental authority" stop? Art 373 also provides for four situations where the parent "loses parental authority or is temporarily deprived thereof": * being unable to make decisions, due to incapacity, disappearance, being out of reach or for any other cause, * having consented a "delegation d'autorite parentale" in conformity with the rules provided for by [art 376 ff7]. * having been found guilty of the offense of "abandon de famille" ... (failure to pay maintenance) * if a judgment has withdrawn any such rights from him or her. Article 376 of the Code Civil states that "no agreement or transfer of parental authority can take place unless it is done by a judgment in the cases mentioned below..." The fact that the mother has a right of Custody (in the Hague convention terminology) did not prevent the father also from having the same right, under Art. 3(b). Consent to a separation would not amount to consent to the removal of child out of France, or consent to be deprived of an essential element of "custody", viz: to participate in deciding where the child should live. An agreement that the parents should live separately, one of them with the children, would not mean that the father relinquises his "parental authority". Otherwise, after divorce, divorced fathers could not have "autorite parentale" together with the mother. Inter alia, the father does not lose the right to take part in the decision on where the children should live. I therefore confirm that, in French law, the father, under the facts given, has custody in the sense of Art. 3 of the Hague convention. The above is true and correct to the best of my knowledge and experience. If called upon to testify or present this document in affidavit form, I would reiterate it it the same terms under the penalties of perjury, as provided for by the law of California. Done in Paris this 20th of May 1994 Alain CORNEC /s/ Alain Cornec