[Italy][Habitual residence][Petition granted]
In Moretti
v Braga, 2023 WL 3590690 ( N.D. Texas, 2023) the
district court granted the Petition and ordered that the child, A.M., be
returned forthwith to Italy and to the custody of her father, Petitioner Carlo
Moretti.
Mr. Moretti was an Italian citizen and resided
in Vicenza, Italy, with his family. Ms. Braga was born in Brazil and moved to
the United States when she was five years old; she was a dual citizen of both
countries. She lived in the United States until she moved to Italy in 2017 to
be in a relationship with Mr. Moretti. Six months after she moved there, Ms.
Braga became pregnant with A.M. The couple then moved to nearby Vicenza to live
in Mr. Moretti’s home in his family’s apartment complex. In Vicenza, Mr.
Moretti provided housing and all of the couple’s financial needs and also gave
Ms. Braga money to start entrepreneurial activities in fashion and microgreens
because her residency status prevented her from pursuing formal employment. Her
businesses were not successful. In 2022, Mr. Moretti earned €100,000 before
taxes. A.M. was born in Vicenza on December 6, 2018, and lived in the apartment
there with both parents for the first 18 months of her life. A.M. had daily
interactions with members of the Moretti family who lived in the apartment
complex, including her paternal grandmother, Ms. Mantiero, her aunt, Ms.
Moretti, and cousins, Ms. Moretti’s children. The extended family was close to
A.M. and regularly acted as a caregiver for her. The couple’s relationship,
however, began to deteriorate while they lived in Vicenza. As their
relationship deteriorated, the couple began to argue more. Their arguments
often escalated into yelling and screaming, and sometimes into physical
aggression. These conflicts led to the end of their relationship in May 2020.
At that time, Mr. Moretti placed a hold on A.M.’s passport to prevent Ms. Braga
from taking her out of the country without his permission. After one year in
the adjacent apartment and a brief residence in an apartment off of the Moretti
property in Vicenza, Ms. Braga and A.M. moved to Milan in September 2021 into
an apartment leased in Mr. Moretti’s name and paid for by Ms. Braga’s family. Mr.
Moretti began working with attorneys to formalize their visitation arrangement
based on their custody routine, and on December 9, 2021, both parties signed a
custody agreement. The Agreement set out Mr. Moretti’s custody as the ability
to “stay with his daughter every week from Thursday evening until Saturday
morning, being able to stay overnight in the Milan apartment, and alternating
weekends from Friday evening when he takes her to Vincenza until Sunday evening
when her mother comes to pick her up in Vincenza.”
Ms. Braga did not think that she could live a
successful life in Italy because of her unsuccessful businesses and the
country’s COVID-19 restrictions. Soon after moving to Milan, Ms. Braga began to
make plans to move with A.M. permanently to the United States. Ms. Braga
admitted that she lied to Mr. Moretti about the true nature and duration of
their travel to gain his permission to take A.M. from Italy because she knew
that he would never consent to A.M.’s permanent removal. She told him that she
wanted to take A.M. to the United States for two weeks to visit her family in
Texas and New York over the Christmas holiday. She provided plane tickets with
a departure date of December 16, 2021, and a return on January 3, 2022.
Believing their travel was a two-week vacation, Mr. Moretti gave his consent
and accompanied Ms. Braga to the Vincenza police station to remove the hold on
A.M.’s passport. The couple’s custody Agreement had not been
filed with the Italian courts before Ms. Braga took A.M. to the United States;
Mr. Moretti planned to file the Agreement with the court after the Christmas
holiday. He testified that the terms were finalized, but Ms. Braga testified
that the terms were not final for her because she did not intend to live in
Italy. At that time, A.M. had only lived in Italy. On January 3, 2022,
the date of her purported return to Italy, Ms. Braga texted him a picture of
A.M. in a bed at the time they were supposed to be flying back to Italy. When
Mr. Moretti asked why they were not at the airport, Ms. Braga called him and
told him of her intention to remain in the United States with A.M. Mr. Moretti
opposed A.M.’s retention in the United States and asked her to bring A.M. back.
A.M. has remained in the United States since December 16, 2021. Petitioner filed this
action on March 16, 2023, 14 months after Ms. Braga retained A.M. in the United
States. At trial, Respondent confirmed that although she is legally able to
return to Italy with A.M., she will “never ever” go back, even if it means
giving sole custody to Mr. Moretti.
The evidence led the court to conclude that A.M.’s habitual residence was
Italy. She was born in Italy and, prior to her removal to the United States in
December 2021, had resided only in Italy since her birth. Her father was an
Italian citizen whose family resided in Italy, where he was raised and owned
property. Prior to A.M.’s move to the United States, her mother also resided
there. A.M. attended a nursery school in Milan, where she had friends, and
received medical care there. Ms. Braga understood that Mr. Moretti did not want
A.M. to leave Italy, which led him to place a hold on her passport. Respondent
asserted that Petitioner had a history of physical and emotional abuse, as well
as cocaine use, such that returning A.M. to Italy would expose her to a grave
risk of harm or an intolerable situation. Even if taken as true, Respondent’s
testimony did not show abuse that rises to the high level of creating an
intolerable situation such that removal to Italy with Petitioner constitutes
future harm greater than would normally be expected with a custodial parent.
When pressed by counsel and by the court for the facts, she recounted three
separate incidents of physical contact and offered as evidence the video of a
car incident. That evidence, however, amounted to descriptions of three
arguments and physical contact between Petitioner and Respondent, in which both
parties used physical aggression. Taking these incidents as true, the court was
not convinced that Petitioner has a propensity for physical abuse sufficient to
constitute a grave risk to A.M. There was no credible evidence that the
physical contact between the parties was anything more than “limited incidents
aimed at persons other than the child, even if witnessed by the child.” Sierra, 2016 WL
5402933, at *9. More importantly, there was no evidence
that Petitioner ever physically abused or neglected A.M. Even assuming that the
incidents occurred as Respondent testified, they fall woefully short of
providing the court with a basis to conclude that A.M. would be subject to a
grave risk of harm if returned to Italy to the custody of her father. The court
concluded that neither the incidents of physical arguments, bad temper, or past
use of cocaine nor the other grounds relied on by Respondent constituted clear
and convincing evidence that A.M. would be subjected to a grave risk of harm or
placed in an intolerable situation if she is returned to Italy where she had
lived most of his life. The facts of this case simply did not rise to the level
of graveness or seriousness required to support a grave risk defense under the
Convention. Respondent relied solely on
A.M.’s presence in the United States, her Friday preschool, and weekly lessons
to support her argument that A.M. is well-settled and should not be forcibly
returned to Italy. She asserted that A.M. is too young to attend a traditional
school, and therefore her attendance of one-per-week activity is the extent of
regular activities that can connect a four-year-old child with her community.
She argued that removing A.M. would constitute a cultural shock because she was
already accustomed to the United States, and that removal would require her to
adapt to the Italian language and culture. Considering the relevant factors,
the court concluded that A.M. had not formed significant connections to her new
environment to be well-settled in the United States. Likewise, there was no
credible evidence that Petitioner “consented to or subsequently acquiesced in
the removal or retention.”
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