Guzzo v. Cristofano
Filing
27
OPINION AFTER BENCH TRIAL: The Court has no doubt that the love and concern that each party has exhibited toward the child is sincere, and that both parents have the best interests of the child at heart. Hopefully, those interests will guide each par ent as they address important issues of custody and child care in future court proceedings. Ultimately, however, the Courts inquiry in this matter is limited and somewhat technical Accordingly, for the foregoing reasons, Petitioner's application for relief under the Hague Convention is denied. The Clerk of Court is respectfully directed to close this case. (Signed by Judge Richard J. Sullivan on 12/30/2011) (jfe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 11 Civ. 7394 (RJS)
_____________________
GERARDO GUZZO,
Petitioner,
VERSUS
LUISA MARIA CRISTOFANO,
Respondent.
_____________________
OPINION AFTER BENCH TRIAL
December 30, 2011
_____________________
RICHARD J. SULLIVAN, District Judge:
I. BACKGROUND
Petitioner Gerardo Guzzo brings this
action pursuant to the Hague Convention on
the Civil Aspects of International Child
Abduction (“Hague Convention”), Oct. 25,
1980, T.I.A.S. No. 11,670, seeking an order
directing the return of his five-year-old son
to Italy. The child is currently in the care of
his mother, Respondent Luisa Maria
Cristofano, in New York.
From November 7, 2011 through
November 9, 2011, the Court held a bench
trial in this matter. For the reasons that
follow, Petitioner’s application for relief
under the Hague Convention is denied.
A. Findings of Fact1
Petitioner is an Italian citizen who was
born and raised in Italy. (PTO at 11.)
Respondent is a United States citizen who
grew up in the Bronx, New York. (Id.) The
parties met in September 2005, while on a
flight from New York to Italy. (Aff. of
Luisa Cristofano, dated Oct. 30, 2011
(“Cristofano Aff.”) ¶ 4.) At that time,
Petitioner lived – and continues to live – in
Scario, Italy. (Aff. of Gerardo Guzzo, dated
October 5, 2011 (“Guzzo Aff.”) (¶ 1.)
Respondent, who was traveling to Italy to
attend a wedding, resided at her home in
1
The following facts are taken from the evidence
presented at trial, the trial transcript (“Tr.”), and the
joint pre-trial order (“PTO”).
New York. (Tr. 299:12-300:18.) Petitioner
told Respondent that if she agreed to live in
Scario, he would marry her in a religious
ceremony. (Id.) Respondent resisted, and
the parties were ultimately married in a civil
ceremony in New York while maintaining
their bi-continental residences. (PTO at 11.)
Westchester County. (Cristofano Aff. ¶¶ 45.) Petitioner and Respondent are both
attorneys with small practices near their
respective homes. (PTO at 11.)
After their initial meeting, the parties
remained in contact, and, in October 2005,
Petitioner visited Respondent in New York.
(Cristofano Aff. ¶¶ 6-7.) During that visit
and subsequently, the parties discussed
marriage. (Id.) The parties’ plan was to
have a “bi-continental” marriage, in which
“[Respondent] would live in New York,
[Petitioner] would live in Italy, and [the
parties] would go back and forth.” (Tr.
155:8-11.)
In April 2006, Respondent moved from
her house in Tuckahoe to an apartment that
she owned in Bronxville.
Respondent
rented out the Tuckahoe house except for
the basement, which she retained the right to
occupy. (Cristofano Aff. ¶ 17.) Around this
time, Petitioner continued to look for legal
work in New York.
Specifically,
Respondent placed advertisements on
Petitioner’s behalf in an Italian-American
newspaper and installed a nameplate for
Petitioner at her Bronxville office.
(Cristofano Aff. ¶¶ 6-7; Tr. 23:18-23; Ex.
DD.)
In the subsequent months, Respondent
traveled once to Italy, and Petitioner made a
second visit to New York. (Cristofano Aff.
¶¶ 7, 10.) The parties continued to discuss
their plans for marriage as well as ways in
which they could maintain their legal
practices while away from their respective
homes. Specifically, the parties discussed
the prospect of Petitioner applying to LL.M
programs in New York. (See Ex. BB.)
Also, in December 2005, while Petitioner
was visiting Respondent in New York,
Respondent arranged for Petitioner to be
interviewed on Radio Maria, a religious
radio station with an Italian-American
audience.
(See Ex. X.)
During the
interview, Petitioner advertised his law
practice and stated that he had a law office
in Bronxville, at Respondent’s business
address. (See id.; Tr. 23:9-12.)
In September 2006, the child was born.
In the several years following the child’s
birth, the parties maintained their bicontinental
marriage
as
originally
contemplated. From 2006 through 2008,
each party visited the other on numerous
occasions. (See Ex. B.) In December 2007,
the parties agreed on a visitation schedule
pursuant to which Respondent would stay
with Petitioner in Italy for a two-month
period, and then return to New York for no
more than twenty days. (Tr. 155:14-18.)
Respondent testified that, through the end of
2008, she attempted to comply with that
arrangement. (Id.) Despite the substantial
amount of time that she was spending in
Italy, Respondent maintained her New York
law office, and even refused an offer to sell
her practice to a pair of New York attorneys.
(See Aff. of Richard Abbate, dated Oct. 27,
2011 (“Abbate Aff.”) at ¶ 2.)
In January 2006, Respondent discovered
that she was pregnant.
(PTO at 11.)
Respondent visited Petitioner in Scario in
February 2006, at which time they discussed
Respondent’s pregnancy.
The parties
wished to marry, but disagreed over whether
the wedding should take place in Italy or
2
In July 2008, Respondent became
pregnant again. (Cristofano Aff. ¶ 27.) The
parties again argued over whether the child
should be born in Italy or New York. (Id.)
In August 2008, however, Respondent
miscarried. (Id.) For the remainder of 2008,
Respondent and the child spent the vast
majority of their time in Italy. (Ex. B.) In
November 2008, Respondent became
pregnant once again.
Petitioner asked
Respondent to register in Scario as a local
resident so that she would be eligible for
state-funded
medical
insurance,
but
Respondent refused to do so. (Tr. 277:2-3.)
Shortly thereafter, the parties’ relationship
became quite tumultuous. They argued
often, and, ultimately, Respondent had
another miscarriage. (Cristofano Aff. ¶ 32.)
In February 2009, Respondent took the child
back to New York and told Petitioner that
she wanted a separation. (Tr. 52:21-53:23.)
any reasonable periods of visitation
of the child by the husband at any
time, subject to reasonable notice
and final approval by the wife as to
the location and length of such
visitation.
In view of the
international aspect of this issue,
however, the husband shall have
the absolute and uncompromisable
right of visitation during the
months of July and August of each
year in Italy, or such other twomonth (or 60-day period) as shall
be agreed upon by husband and
wife with two months prior notice
by either.
Over the next several months, the parties
and their counsel negotiated a separation
agreement (the “Separation Agreement”),
which was executed in English by
Respondent on May 20, 2009, and in Italian
by Petitioner on June 10, 2009. (Ex. A.)
The Separation Agreement provided, among
other things, that: (i) “[t]he parties shall
continue to live separate and apart”; (ii)
“[t]he Wife shall have custody[] of the
minor child of the parties”; (iii) “the
Husband shall pay child support to the Wife
for the benefit of the minor child of the
parties in the amount of Euro 500 per
month”; and (iv) Petitioner “consents to [the
child’s] current registration in the Good
Counsel Academy” in White Plains, New
York. (Id.)
When visitation occurs in Italy and
until the child is 16 years of age,
the wife shall accompany [the
child] who will live with his father.
At the husband’s absolute and
unreviewable discretion, the wife
may live with the child during the
2-month period of visitation
throughout the year; however, the
wife shall have the right to find and
live at her own apartment at her
expense. . . . When [the child] shall
become 16 years of age, he shall be
able to travel alone and can go to
Italy to visit his father who will pay
for his international travel and his
stay.
The Separation Agreement also provided
for Petitioner’s visitation rights as follows:
When visitation occurs in the USA,
the husband may reside in the
basement apartment at the wife’s
house at 34 Read Street, Tuckahoe,
NY, at his discretion and rent free.
The husband shall also have the
absolute right of visitation with
respect to Christmas and Easter in
alternating years.
The husband and wife may agree to
3
In late December 2010, Petitioner visited
Respondent in New York and the parties
agreed to make another attempt at
reconciliation.
(Cristofano Aff. ¶ 48.)
Respondent and the child returned to Italy
with Petitioner on January 10, 2011. (Id.)
Over the next several months, however, the
parties’ relationship became tumultuous
once again and, in August 2011, Respondent
returned to New York with the child, where
they have remained. (Id. ¶ 58.) Respondent
has since enrolled the child at Good Counsel
Academy in White Plains and has initiated a
divorce proceeding in Westchester County.
(Id.)
(Id., Schedule A ¶ 4.)
After the Separation Agreement was
signed by both parties, Respondent returned
to Italy with the child. Respondent testified
that her trip to Italy was undertaken as an
attempt at reconciliation with Petitioner, but
that she was only willing to make the
attempt because she had the protection of
the Separation Agreement. (Tr. 126:3-17,
153:20-154:22.) Respondent also testified
that, regardless of the reconciliation attempt,
she never intended to have the child attend
primary school in Italy and that she always
planned to live with the child in New York
once he was in kindergarten. (Tr. 297:10299:4.) Respondent spent most of the
summer of 2009 in Scario, and, after a brief
stay in New York, Respondent returned to
Scario in November 2009 and the child
began attending nursery school there. (PTO
at 11.)
B. Procedural History
Petitioner initiated this action on
October 12, 2011, by filing a writ of habeas
corpus in the Supreme Court of the State of
New York, Bronx County, pursuant to the
Hague Convention and the International
Child Abduction Remedies Act (“ICARA”),
42 U.S.C. §§ 11601-11611. On October 19,
2011, Respondent removed the action to this
Court, and Petitioner filed a motion to
remand. On October 24, 2011, the Court
denied Petitioner’s motion to remand and
scheduled a bench trial. The trial was
conducted on November 7, 8, and 9, 2011.
The parties submitted post-trial briefs on
November 21, 2011.
At the end of 2009, Respondent
purchased a small cottage in the hills outside
Scario for 30,000 Euros. (Tr. 255:18256:4.)
Respondent testified that she
purchased the house because the Separation
Agreement required her to bring the child to
Scario each summer for two months for
Petitioner’s visitation. (Cristofano Aff. ¶
40.)
In 2010, Respondent and the child spent
the vast majority of the year in Scario, but
periodically made trips to New York. (See
Ex. B.) In September 2010, Respondent
became pregnant yet again, but miscarried
shortly thereafter. (Cristofano Aff. ¶¶ 4445.) Around this time, the parties were
arguing frequently, and in November 2010,
Respondent took the child back to New
York with the intention of not returning to
Italy. (Id. ¶ 45.)
III. ANALYSIS
A. Statutory Scheme
The Hague Convention “was adopted in
1980 in response to the problem of
international child abductions during
domestic disputes.” Abbott v. Abbott, 130 S.
Ct. 1983, 1989 (2010). The Convention’s
express objectives are “to secure the prompt
4
In Gitter, the Second Circuit set forth a
two-part test for ascertaining a child’s
habitual residence pursuant to the Hague
Convention:
return of children wrongfully removed to or
retained in any Contracting State,” and “to
ensure that rights of custody and of access
under the law of one Contracting State are
effectively respected in the other
Contracting States.” Hague Convention,
Art. 1.
First, the court should inquire into
the shared intent of those entitled to
fix the child’s residence (usually
the parents) at the latest time that
their intent was shared. In making
this determination the court should
look, as always in determining
intent, at actions as well as
declarations. Normally the shared
intent of the parents should control
the habitual residence of the child.
Second, the court should inquire
whether
the
evidence
unequivocally points to the
conclusion that the child has
acclimatized to the new location
and thus has acquired a new
habitual residence, notwithstanding
any conflict with the parents’ latest
shared intent.
Pursuant to ICARA, the Convention’s
implementing legislation, an aggrieved
custody claimant may file a petition in state
or federal district court for the return of a
child located within the court’s jurisdiction.
In order to prevail on such a claim, a
petitioner must show by a preponderance of
the evidence that “(1) the child was
habitually resident in one State and has been
removed to or retained in a different State;
(2) the removal or retention was in breach of
the petitioner’s custody rights under the law
of the State of habitual residence; and (3) the
petitioner was exercising those rights at the
time of the removal or retention.” Gitter v.
Gitter, 396 F.3d 124, 130-31 (2d Cir. 2005).
If the petitioner successfully establishes
a prima facie case of wrongful removal or
retention, then the burden shifts to the
respondent to establish one of the
Convention’s defenses, and if the respondent
fails to do so the child must be returned. See
Blondin v. Dubois, 189 F.3d 240, 245 (2d
Cir. 1999).
Gitter, 396 F.3d at 134.2
Here, the Court finds that the Separation
Agreement, pursuant to which the parties
agreed that Respondent would have custody
of the child, live with the child in New
York, and send the child to school in New
York, constitutes the last shared intent of the
parties.
B. Habitual Residence
The central dispute in this matter
concerns whether New York or Italy
constitutes the child’s place of habitual
residence. After careful consideration of the
evidence advanced by the parties, the Court
finds that Petitioner has failed to
demonstrate by a preponderance of the
evidence that Italy, rather than New York, is
the child’s habitual residence.
Despite the unambiguous language of
the Separation Agreement, Petitioner argues
2
Petitioner initially advanced the alternative
argument that even if New York was found to be the
place of habitual residence, the child had become
acclimatized to Italy such that Italy had become the
child’s new habitual residence. At trial, however,
Petitioner abandoned that argument, conceding that
he could not make the showing required under Gitter.
(See Tr. 290:4-291:7.)
5
THE WITNESS: Yes. Sure. It was
written.
that the document fails to accurately reflect
his intentions at the time it was executed.
First, Petitioner argues that he was coerced
into signing the Separation Agreement “by
reason of . . . distress at the Mother’s
holding the child hostage.” (Pet’r’s PostTrial Br. at 12.) Petitioner, however, grossly
mischaracterizes the evidence presented on
this issue at trial. Respondent did indeed
condition her June 2009 trip to Italy – and
her willingness to attempt to reconcile with
Petitioner – on Petitioner signing the
agreement. As Respondent testified at trial,
the Separation Agreement provided her with
“security” that, in the event that the
reconciliation failed, she would be able to
return to New York with custody of the
child and resume her life according to the
terms of the agreement.
(Tr. 153:20154:22.) However, Petitioner was aware of
the rationale behind Respondent’s condition,
and nevertheless agreed to sign the
Separation
Agreement
because
it
represented “the final attempt to save my
marriage, [and] to make sure that once Luisa
would be here there would be grounds for
reconciliation.” (Tr. at 60:9-12.)
***
THE COURT: So you signed the
agreement?
THE WITNESS: Yes.
THE COURT: Understanding that
the terms of this agreement were
that your son was to go to school in
New York?
THE WITNESS: Yes.
THE COURT: And understanding
that your wife was to have custody
of him?
THE WITNESS: I did sign it.
THE COURT: You understood
when you signed it that that was the
condition, that was the terms of this
agreement, correct?
THE WITNESS: And I was also
hoping that there were the
conditions for us to obtain a
reconciliation
and
ultimately
having both of them in Italy.
Whatever hopes for reconciliation
Petitioner may have harbored, therefore,
Petitioner clearly understood the terms of
the Separation Agreement and the binding
nature of the document at the time he signed
it. Petitioner’s trial testimony demonstrates
that he was well aware of the fact that, by
entering into the Separation Agreement, he
was consenting to his son “going to school
in New York” and that “[his] wife was to
have custody of him”:
THE COURT: That was your hope,
but the terms of the agreement were
that she was to have sole custody
and the child was [to] go to school
in New York?
THE WITNESS: Yes.
THE COURT: You understood that
according to this agreement your
son was to attend school in New
York State in the fall, right?
***
THE COURT: You signed this
6
document here, right?
Indeed, the terms of the Separation
Agreement are consistent with the nature of
the parties’ relationship leading up to the
execution of the document. From the time
the parties met in 2005, they engaged in a
“bi-continental” relationship in which
“[Respondent] would live in New York,
[Petitioner] would live in Italy, and [the
parties] would go back and forth.” (Tr.
155:8-11.) If anything, the parties’ actions
prior to the Separation Agreement suggest
that Petitioner – and not Respondent – was
open to relocating permanently. As noted
above, Respondent placed advertisements in
New York publications for legal work for
Petitioner. (Cristofano Aff. ¶ 17; Tr. 26:68.) Petitioner appeared on a New York
radio station, during which he stated that he
had a law office in Bronxville, New York;
and Respondent ultimately put Petitioner’s
nameplate on her office door. (Exs. X, DD;
Tr. 23:18-23.) In contrast, the parties have
put forward no evidence that Respondent
sought legal work in Italy.
THE WITNESS: Yes.
THE COURT: You have already
said that’s your signature on that
document, right?
THE WITNESS: Yes.
THE COURT: You understood this
was a legally binding document?
THE WITNESS: Yes.
***
THE COURT: I am asking, when
you signed this document, you
understood that this document and
its terms would be binding on you,
correct?
THE WITNESS: Certainly.
(Tr. 60:13-61:15, 94:12-95:2.)
Petitioner additionally argues that, even
if the Separation Agreement represented the
intent of the parties at the time it was
executed, the parties’ subsequent actions
demonstrate a changed shared intent that the
child should be raised in Italy. Petitioner
testified that, after the agreement was signed
and Respondent went with the child to visit
Petitioner in Italy, the parties “started to live
as if the agreement had never existed.” (Tr.
100:21-23.)
Petitioner, for example,
testified that Respondent made no effort to
enforce the child support provisions of the
Separation Agreement. Indeed, according to
Petitioner:
While Petitioner hoped that he and
Respondent could effect a reconciliation
after the Separation Agreement was
executed, Petitioner’s testimony plainly
demonstrates his consent to the terms of the
agreement.
Regardless of whatever
confidence Petitioner had in his ability to get
Respondent to revisit the terms of the
agreement once they were reunited, there is
no
evidence
that
the
attempted
reconciliation, in and of itself, altered the
agreement in any way.3
3
There is also no merit to Petitioner’s argument that
“fatal
irregularities
in
the
execution,
acknowledgement, and delivery” of the Separation
Agreement make the agreement “unenforceable as to
custody.” (Pet’r’s Mem. at 12.) Regardless of
whether the document is enforceable in family court,
it is nevertheless clearly probative of the parties’ “last
In the second half of June 2009, we
shared intent” for the purposes of determining
habitual residence under ICARA. Gitter, 396 F.3d at
134.
7
whole, is thoroughly consistent with her
stated intention to educate the child in New
York once it became time to enroll him in
kindergarten.
Despite the parties’
apparently sincere attempts at reconciliation,
the evidence demonstrates that Respondent
never contemplated spending her life in Italy
or having the child attend Italian schools
following preschool. (See, e.g., Tr. 297:15299:4.) Moreover, Petitioner’s argument
that the parties abandoned the Separation
Agreement is not persuasive. While it is
undisputed that Respondent did not seek
child support from Petitioner, the Separation
Agreement provides that, during visitation
periods in Italy, “the husband shall pay for
the living expenses of the child . . . without
having to pay to the wife the monthly
support payment.” (Ex. A, Schedule A at 2.)
Additionally, Respondent’s extended stays
in Scario with the child by no means reflect
a rejection of the Separation Agreement,
given that the agreement provided that the
parties may agree to “any reasonable periods
of visitation” and that Respondent was free
to reside with Petitioner and the child. (Id.)
actually reconciled.
We then
replanned our life together. We
went back to the time everything
started, and we decided that we
would have one roof over our
heads, [the child] included, and that
would be in Italy. . . . At one point
we started behaving like a real
family and we started to consider
that agreement nonexistent, as if it
never happened.
(Tr. 323:8-17.) Petitioner testified that, after
this purported reconciliation, the parties
developed a new “mutually shared opinion
that [the child] would start the . . . first five
years of primary school and the following
three years of middle school” in Italy before
moving to the United States to continue his
secondary education. (Tr. 325:18-21.)
With respect to this assertion, the Court
finds that Petitioner’s testimony was not
credible. Moreover, it is belied by the other
evidence presented at trial. Significantly,
Petitioner made no mention of the alleged
conversations in which the parties reached a
new agreement about where the child should
be educated in any of his pre-trial affidavits,
memoranda of law, or proposed findings of
facts and conclusions of law. Indeed,
Petitioner has put forward no evidence of
any kind to corroborate his testimony on this
issue, despite the abundance of e-mails and
letters between the parties that were
produced. Put simply, the Court finds
Petitioner’s assertion of a new “mutually
shared intent” to educate the child in Italy to
be a wholesale fabrication designed to meet
the legal standard established by the Second
Circuit in Gitter.
Nor is the parties’ decision to send the
child to nursery school in Italy reflective of
a changed intention to make Italy the child’s
habitual residence for the foreseeable future.
Respondent
testified
credibly
that,
regardless of the outcome of the attempted
reconciliation, she intended to send the child
to kindergarten in New York, which
Respondent considered the beginning of the
child’s formal education. (Tr. 298:7-20.)
This is in contrast to the nursery school in
Scario, which Respondent considered
merely a “day care” meant to provide the
child with opportunities for social
interaction. (Cristofano Aff. ¶ 72; see also
Tr. 298:7-17.) Respondent further testified,
again credibly, that she made her intention
clear to those close to her, such that
On the other hand, Respondent’s
conduct following the execution of the
Separation Agreement, when viewed as a
8
executing the Separation Agreement, the
parties “decided that we would have one
roof over our heads.” (Tr. 323:10-11.)
Indeed, Respondent’s purchase of the house
was consistent with the terms of the
Separation Agreement, which allowed her to
find her own accommodations during the
child’s summer visitation periods in Scario.
(Cristofano Aff. ¶ 40; Tr. 63:21-24; Ex. A,
Schedule A at 4.)
“everyone in [her] family . . . knew that [the
child] would . . . start kindergarten in the
United States.” (Tr. 307:23-308:1.) Indeed,
while the child was attending the nursery
school in Scario, Respondent homeschooled him in English in order to prepare
him for school in the United States. (Tr.
287:16-25.)
Accordingly, in December
2010, Respondent registered the child at the
Yonkers Board of Education, selecting three
schools for the 2011-2012 school year. (See
Cristofano Aff., ¶¶ 45-46; Ex. P.)
Additionally,
and
of
particular
significance, Respondent repeatedly refused
to register the parties’ marriage in Italy,
which would have entitled her to statefunded health insurance while there. (Tr.
36:7-37:12.) Petitioner testified that he
“pleaded with her on many occasions” to
register so that she could “enjoy benefits
that any Italian citizen enjoys,” but she
nevertheless resisted doing so. (Id.) The
child likewise did not have Italian medical
insurance, but rather was insured through
Medicaid and received his primary medical
treatment in the United States. (Exs. K, L,
M; Tr. 71:19-24, 277:2-4.)
Respondent’s intention to educate the
child in New York is also evidenced by the
fact that at all times – both before and after
the Separation Agreement – Respondent
maintained a fully operational law practice
in New York. (Cristofano Aff. ¶¶ 16-17, 25,
33, 38, 79.) Respondent has put forward
evidence demonstrating that, in the period
following the execution of the Separation
Agreement, she continued to perform work
for New York clients and collaborate with
attorneys in New York. (See Aff. of
Rimonda Dalloul, dated Oct. 27, 2011, ¶¶ 23, 5.; Abbate Aff. ¶ 2.) Indeed, as noted
above, in May 2008, Respondent refused an
offer to sell her practice, stating that she had
no intention of discontinuing her New York
practice. (Abbate Aff. ¶ 2.)
The Court’s finding that New York is
the child’s place of habitual residence is
consistent with recent Second Circuit case
law on this issue. In Gitter, Israeli-born
parents who had been living in New York
for the entirety of their relationship decided
to “try living in Israel for one year.” Gitter,
396 F.3d at 128. After deciding to relocate,
the parents “closed their New York bank
accounts, sold their cars, and placed their
furniture in storage.” Id. Once they arrived
in Israel, the parents placed their child in
day care and sold or gave away the family’s
possessions in storage.
Id.
After
approximately fifteen months in Israel, the
mother returned to New York with the child
and refused to go back to Israel. The father
brought an action under the Hague
Moreover, the evidence demonstrates
that Respondent retained her New York real
estate – another fact consistent with her
stated intention to have the child attend
school in New York. Despite renting out the
Tuckahoe House, she retained exclusive use,
possession, and occupancy of the basement
apartment, which, pursuant to the Separation
Agreement, Petitioner was permitted to use
when visiting New York.
(Ex. MM.)
Additionally, the fact that Respondent
purchased a small house outside of Scario
undermines Petitioner’s testimony that, after
9
understanding that, should the reconciliation
prove unsuccessful, the parties would
continue to abide by the terms of the
agreement. Third, the evidence suggests
that, even if the parties were to reconcile,
Respondent still intended to send the child
to kindergarten in New York. Finally, even
during Respondent’s time in Italy following
the Separation Agreement, Respondent
retained numerous connections to New
York.
As already noted, Respondent
maintained real estate and a law practice in
New York. Additionally, she had only a
New York drivers license and bank account.
(Ex. I.) Respondent also kept the majority
of her possessions in New York, including
furniture, books, and clothing. (Cristofano
Aff. ¶ 79(j); Tr. 243:4-25.)
Neither
Respondent nor the child had Italian
passports and, on every trip to Italy, entered
as tourists on 90-day visas. (Tr. 72:2373:9.)
Convention, seeking the return of the child
to Israel.
The district court, despite
acknowledging “some indicators tending to
suggest that [the parties’] stay in Israel
might be of indefinite duration,” found that,
ultimately, “[the] evidence only suggests
that Mr. Gitter himself never had any
intention of returning to live in New York.”
Id. at 135. On appeal, the Second Circuit
found that the district court did not clearly
err in concluding that there was “no settled
mutual intent to make Israel [the child’s]
permanent home.” Id.
In Poliero v. Centenaro, 373 F. App’x
102 (2d Cir. 2010), the Second Circuit
affirmed the district court’s finding that
Italian parents who moved with their
children to New York for two years did not
have a shared intent to abandon Italy as the
children’s habitual residence. Id. at 105.
The court made this finding despite the fact
that the children attended two years of
school in New York, citing evidence that the
parties did not attempt to sell their family
home in Italy, maintained their personal
belongings and furniture in Italy, and
maintained continuous connections with
Italy even though they did not live there for
the majority of the year. Id.
Thus, the evidence overwhelmingly
demonstrates that, following the execution
of the Separation Agreement, the parties
never shared an intention to make Italy the
child’s habitual residence.
Therefore,
because Petitioner has failed to make a
prima facie showing that the child was a
habitual resident of Italy, the Hague
Convention provides no basis for granting
the relief sought by Petitioner.
Taken as a whole, the evidence
presented here that Respondent did not
intend to make Italy the child’s habitual
residence is more compelling than that cited
by the Gitter and Poliero courts. First, and
most significantly, the parties documented
their shared intention in a Separation
Agreement, which expressly contemplated
that the child would live and attend school in
New York with Respondent.
Second,
Respondent testified credibly that, after
executing the Separation Agreement, her
willingness to attempt a reconciliation in
Italy was clearly premised on the
IV. CONCLUSION
The Court has no doubt that the love and
concern that each party has exhibited toward
the child is sincere, and that both parents
have the best interests of the child at heart.
Hopefully, those interests will guide each
parent as they address important issues of
custody and child care in future court
proceedings.
Ultimately, however, the
Court’s inquiry in this matter is limited and
10
somewhat technicaL Accordingly, for the
foregoing reasons, Petitioner's application
for relief under the Hague Convention is
denied. The Clerk of Court is respectfully
directed to close this case.
SO ORDERED.
Dated: December 30, 2011
New York, New York
United States District Judge
***
Petitioner is represented by Bonnie P.
Josephs, 1776 Broadway, 21st Floor, New
York, NY 10019.
Respondent is represented by Jeremy D.
Morley, 230 Park Avenue, ] Oth Floor, New
York, NY 10169.
USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ______________
DATE FILED: 11,)(;· 1\
11
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