In Prevot v Prevot , 59 F.3d 556 (6th Cir, 1995) the
father brought an action under ICARA, seeking to have children returned
moved from the United States to France. The District Court., ordered
that children be returned to custody of father in France. The Court of
Appeals held that the father, as a fugitive from justice in the United
States, could not maintain an ICARA action in United States courts. It
reversed and remanded with instructions to dismiss because of the
father's status and actions as a fugitive felon.
Approximately two weeks after their marriage Mr. Prevot was arrested
at their restaurant in Texas on charges of theft of property of the
value of $20,000 or more, a second-degree felony. The offense occurred
prior to the marriage. Shortly thereafter the couple moved to Memphis,
Tennessee and started a restaurant there. In 1989, Mr. Prevot pleaded
guilty to the charge of theft and was sentenced to ten years confinement
plus a fine. He was granted probation for ten years, with a condition
that he make monthly restitution of $380, a total of some $45,000, plus
a $40 per month probation officer's fee. Soon after the Memphis
restaurant opened Ms. Prevot arrived at it one morning to find a notice
from the Internal Revenue Service that Mr. Prevot owed $125,000 in back
taxes for a restaurant he previously operated in Texas. A plan was
formulated for leaving the United States and moving to France. The
restaurant was closed. The family drove to Canada so that Mr. Prevot
could obtain a passport, which he succeeded in doing through the French
Embassy.
After three to five weeks, as soon as his passport was received, the
family departed for Europe and arrived in France in June 1991.
After traveling for several weeks the family settled down in Mougins,
France and opened a new restaurant. They lived in a 36-foot trailer
throughout their time in France. In February 1992 a warrant was issued
by the Texas court for Mr. Prevot because of his violation of probation.
The outstanding restitution balance was then approximately $38,000. On
May 19, 1993 Mr. Prevot moved out of the trailer, taking his belongings
with him. Mr. Prevot denied moving out but admitted that he occasionally
spent the night at the restaurant. During this time Ms. Prevot, through
the American Consulate, filed for and obtained new passports for herself
and the children, without her husband's knowledge. In August 1993 Ms.
Prevot left France without Mr. Prevot's knowledge, and returned to
Memphis, where they presently are located. In October 1993 Mr. Prevot
filed suit for divorce in France. Personal service of process on Ms.
Prevot was not attained, and the French court, proceeding ex parte,
granted custody to Mr. Prevot pending the outcome of the present
litigation. At no time since he left the United States has Mr. Prevot
returned. Mr. Prevot filed his petition in the United States District
Court in December 1993.
Mr. Prevot and Ms. Prevot had joint custody of the children. The
district court held that Mr. Prevot had carried his burdens of
establishing by a preponderance of the evidence that the children were
"habitual residents" of France at the time of their removal and that he
was exercising his custodial rights at the time of removal. Ms. Prevot
presented the testimony of Dr. Allen Battle, recognized as an expert by
all concerned. He had examined the children, ages 4
2 and 3 at the time of the
examination. He testified that the older child was terrified of his
father and, in the terminology of ICARA, would be subject to grave risk
of psychological harm by being sent to France, and the younger child
would be subject to grave risk of psychological harm if separated from
her brother for an extended period. The court discounted Dr. Battle's
testimony and gave as one of its reasons that the doctor had neither
seen the children interacting with the father nor had an opportunity to
interview the father. Thus Mr. Prevot's unwillingness to come to the
United States deprived the court of expert testimony that it considered
necessary.
The district court abused its discretion in declining to invoke its
equitable power to hold Mr. Prevot disentitled to assert his claim in a
District Court.
The fugitive disentitlement doctrine limits access to courts in the
United States by a fugitive who has fled a criminal conviction in a
court in the United States. Disentitlement of access to appellate court
applies to appeals in civil cases as well as to criminal appeals and to
federal trial courts in civil cases as well as to appellate courts. It
does not matter that the court of conviction and the court from whose
processes the fugitive is excluded are from different sovereigns. The
Supreme Court has expressed doubt about a rule that would require
automatic dismissal of an appeal for conduct by a defendant having no
connection with the appellate proceedings. Ortega-Rodriguez v. U.S., 507
U.S. 234, ----, 113 S.Ct. 1199, 1207, 122 L.Ed.2d 581 (1993). Other
cases have commented on the existence of a nexus. Conforte, while
pretermitting whether a nexus was mandated, found a nexus was present:
i.e., the litigant's conviction for evasion of employment taxes and his
tax court appeal "are each related components of a general tax evasion
scheme." 692 F.2d at 592. In this case our concern is not with a
connection between this appellate court and the courts of Texas but with
the connection between the Texas conviction and the claim before the
district court, for we are reviewing the district court's denial of
disentitlement. Assuming a nexus was required between the district court
proceeding and the Texas conviction, it was present. Mr. Prevot's flight
and his subsequent invocation of ICARA were, paraphrasing Conforte,
"related components of a general scheme." He fled to escape his criminal
conviction and other responsibilities to court, probation officers,
victim and government, and to assemble and hold his family in a refuge
beyond the reach of American courts and American responsibilities. In
Mr. Prevot's hands ICARA is a tool used to permit him to escape American
justice and responsibilities while holding his children with him. Flight
was but one step, and an ICARA claim the latest link, in a chain of
proximately related events that began with the Texas conviction and
ended in the district court proceedings in this case. It is obvious that
if Mr. Prevot returned to the United States and was imprisoned he could
not successfully maintain an ICARA claim. Either the habitual residence
of the children would have changed, or they would no longer be in his
custody, or the exceptions relating to risk of harm to the children
would apply. Mr. Prevot is within the pattern of cases "consistently and
unequivocally approv[ing] dismissal as an appropriate sanction." He was
a fugitive during the ongoing process; the only difference is that the
relevant process is that of the trial [federal district] court rather
than the appellate court. He triggered the relevant process by filing
this case while he was an unrecaptured fugitive, he remains in that
status, and there is no indication that it will ever change. Mr. Prevot
is at large and the Texas court has no way (short of the dubious,
expensive, and tortious possibilities of extradition) to protect its
interest, nor does the unreimbursed victim of Mr. Prevot's theft, or the
IRS, or the Tennessee probation system have means to safeguard its
respective interests. In a practical sense, the only agency with power
to sanction Mr. Prevot is the district court whose power and authority
he himself invoked.
Mr. Prevot has flouted the interests of the criminal courts in
enforcing his criminal conviction. He has walked away from his
agreement-- made to the court to obtain probation--to make restitution
to his victim. He has spurned his obligation to the United States
government for taxes. He has misused the Tennessee probation processes.
He has inhibited the processes of the United States District Court in
this case by making unavailable to it the depth of expert testimony that
the court indicated that it needed. He has abused the laudable purposes
of ICARA by employing it to further his scheme. His fugitivity, and his
actions, constitute abuses to which a court should not accede.
