Guzzo v Cristofano, 2011 WL 6934108 (S.D.N.Y.) [Italy] [Habitual Residence]

In Guzzo v Cristofano, 2011 WL 6934108 (S.D.N.Y.) the District Court denied the Petition of Gerardo Guzzo for an order directing the return to Italy of his five-year-old son, who was in the care of his mother, Respondent Luisa Maria Cristofano, in New York.
Petitioner was an Italian citizen who was born and raised in Italy. Respondent was a United States citizen who grew up in the Bronx, New York. The parties met in September 2005, while on a flight from New York to Italy. Petitioner and Respondent are both attorneys with small practices near their respective homes. 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." In January 2006, Respondent discovered that she was pregnant. Petitioner told Respondent that if she agreed to live in Scario, he would marry her in a religious ceremony. Respondent resisted, and the parties were ultimately married in a civil ceremony in New York while maintaining their bi-continental residences. 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. 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. Respondent testified that, through the end of 2008, she attempted to
comply with that arrangement. 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.
In July 2008, Respondent became pregnant again. The parties again argued over whether the child should be born in Italy or New York. 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. In November 2008, Respondent became pregnant once again. Shortly thereafter, the parties' relationship became quite tumultuous. They argued often, and, ultimately, Respondent had another miscarriage.
In February 2009, Respondent took the child back to New York and told Petitioner that she wanted a separation.
Over the next several months, the parties and their counsel negotiated a separation agreement, which was executed in English by Respondent on May 20, 2009, and in Italian by Petitioner on June 10, 2009. 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.
The Separation Agreement also provided for Petitioner's visitation rights as follows:
The husband and wife may agree to 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
two month (or 60-day period) as shall be agreed upon by husband and wife with two
months prior notice by either. The husband shall also have the absolute right of visitation with respect to Christmas and Easter in alternating years.
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.
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.

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. 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. 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. At the end of 2009, Respondent purchased a small cottage in the hills outside Scario for 30,000 Euros. 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.
In 2010, Respondent and the child spent the vast majority of the year in Scario, but
periodically made trips to New York. In September 2010, Respondent
became pregnant yet again, but miscarried shortly thereafter. 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.
In late December 2010, Petitioner visited Respondent in New York and the parties agreed to make another attempt at reconciliation. Respondent and the child returned to Italy with Petitioner on January 10, 2011. 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 remained. Respondent enrolled the child at Good Counsel Academy in White Plains and initiated a divorce proceeding in Westchester County.
Petitioner initiated this action on October 12, 2011, by filing a writ of habeas corpus in Supreme Court, Bronx County, pursuant to the Hague Convention and the International Child Abduction Remedies Act. On October 19, 2011, Respondent removed the action to the District Court.
The District Court found that Petitioner failed to demonstrate by a preponderance of the evidence that Italy, rather than New York, was the child's habitual residence. It observed that in Gitter, the Second Circuit set forth a two-part test for ascertaining a child's habitual residence pursuant to the Hague Convention: 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. Gitter, 396 F.3d at 134.
The Court found 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, constituted the last shared intent of the
parties. The terms of the Separation Agreement were 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. If anything, the parties' actions prior to the Separation Agreement suggest that Petitioner-and not Respondent- was open to relocating permanently.
Petitioner argued 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." Petitioner, for example, testified that Respondent made no effort to enforce the child support provisions of the Separation Agreement. Indeed, according to Petitioner:
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. With respect to this assertion, the Court found that Petitioner's testimony was not credible. Moreover, it was belied by the other evidence presented at trial. On the other hand, Respondent's conduct following the execution of the Separation Agreement, when viewed as a whole, was 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 demonstrated that Respondent never contemplated spending her life in Italy or having the child attend Italian schools following preschool.
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. Additionally, and of particular significance, Respondent repeatedly refused to register the parties' marriage in Italy, which would have entitled her to state funded health insurance while there. The Court's finding that New York was the child's place of habitual residence was consistent with recent Second Circuit case law on this issue. Gitter, 396 F.3d at 128; Poliero v. Centenaro, 373 F. App'x 102 (2d Cir.2010)
The Court found that taken as a whole, the evidence presented that Respondent did not intend to make Italy the child's habitual residence was 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 understanding that, should the reconciliation prove unsuccessful, the parties would continue to abide by the terms of the agreement. Third, the evidence suggested 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. Respondent maintained real estate and a law practice in New York. Additionally, she had only a New York drivers license and bank account. Respondent also kept the majority of her possessions in New York, including furniture, books, and clothing.
Neither Respondent nor the child had Italian passports and, on every trip to Italy, entered as tourists on 90-day visas. Thus, the evidence overwhelmingly demonstrated that, following the execution of the Separation Agreement, the parties never shared an intention to make Italy the child's habitual residence.

Lutman v Lutman, 2010 WL 3398985 (M.D.Pa.) [Israel] [Well Settled in New Environment]

In Lutman v Lutman, 2010 WL 3398985 (M.D.Pa.) on July 21, 2010, petitioner Pnina Lutman (mother) filed a petition for the return of minor child D.L., her nine-year-old son, pursuant to the Hague Convention. Pnina claimed that respondent Eyal Lutman (father), D.L.'s father, has wrongfully retained D.L. in the United States, away from D.L.'s habitual residence in Israel. The district court granted the petition.
Pnina and Eyal were married in 1986 in Israel, and their first child, a daughter named Hadar, was born in 1988. In 1989, Pnina and Eyal, who were both dual citizens of the United States and Israel, moved to Kansas. Another daughter, Meirav, was born in Kansas in 1990. In 1996, the family returned to Israel. Approximately four years later, they relocated to California. D.L. was born in California on April 10, 2001. The parties' entered into a marital separation agreement on June 22, 2005, and a California state court finalized their divorce on September 9, 2005. Pnina and Eyal also obtained a divorce decree from a Rabbinical Court in California, and they obtained a decision from a Rabbinical Court in Israel, acknowledging the California Rabbinical Court's decision. As a part of their divorce, their written separation agreement resolved the issue of custody of their children, by providing for joint legal and physical custody. The agreement stated that D.L. "shall primarily reside" with Pnina and that his older sisters "shall primarily reside" with Eyal. The custody provisions also forbid either parent from moving outside of Orange County, California, without further order of the court or written permission from the other party. Despite this provision, Pnina returned to Israel with D.L. and Meirav in 2005, shortly after the divorce. Eyal encouraged Pnina, D.L ., and Meirav to return to Pnina's family in Israel and he paid for their airfare. As a result of a change in his work assignments, undertaken at his request, Eyal also returned to Israel a few months later with Hadar. The California separation agreement provided that the parties agreed "to meet and confer regarding any necessary changes in their parenting plan" in the event that one of them moved, and that, if they could not negotiate a new agreement, they would "mediate the issue, equally sharing in the cost of the mediation." In order to reflect the change in their circumstances the parties voluntarily appeared before the Rabbinical Court of Haifa in Israel in 2007, which affirmed that D.L. is or will be in his mother's custody in Israel.
Eyal left Israel in 2007 and relocated to Ohio. Pnina encouraged D.L.'s relationship and regular contact with Eyal, not only during Eyal's residence in Israel, but also after Eyal returned to the United States. When Eyal invited his children to visit during their vacation in the summer of 2008, Pnina agreed to facilitate their visit.
Pnina was exercising her custody rights under the Rabbinical Court decree at
the time she sent D.L., with arrangements of a round trip ticket, to the United States for
this visit with his father. And she expected D.L.'s return on August 29, 2008, the date of
Meirav's and D.L.'s return flight to Israel. On August 29, 2008, only Meirav returned to
Israel, and Eyal retained D.L. in his custody. Eyal did not have Pnina's consent to retain
D.L. in the United States, and he acted unilaterally to retain D.L. This was a last-minute, emotional decision by Eyal to violate the terms of the custody decree of the Rabbinical Court of Haifa. D.L. has never returned to Israel since the summer of 2008, despite Pnina's efforts to have him returned.
In May of 2009, Eyal and D.L. moved to Red Lion, in Pennsylvania. Pnina visited D.L. in Red Lion for approximately four weeks in August 2009, in an attempt to secure his return informally. Eyal initially permitted Pnina to stay in his residence during her visit in the United States. However, Pnina testified that Eyal became jealous of D.L.'s reunion with his mother and feared that D.L. would ask to return to Israel with Pnina. In order to prevent such an occurrence, Eyal contacted authorities and alleged that Pnina had sexually abused D.L. Authorities conducted a brief, fruitless investigation of the allegations of child abuse, which concluded with an "unfounded" finding. The district court found that Eyal's accusation was baseless. At the conclusion of the investigation, financial constraints required Pnina to return to Israel, and she returned without D.L. and without resolution of D.L.'s custody. Pnina continued to seek D.L.'s return, and she diligently pursued her rights under the Convention. She initially contacted authorities on the Hague Convention and began completing paperwork in August of 2009. In October of 2009, she commenced official proceedings under the Hague Convention, and she requested pro bono legal representation from the Legal Assistance Coordinator (the "LAC") in the U.S. Central Authority for the Hague Convention, which is the U.S. Department of State. It was not until March of 2010 that Pnina successfully retained a pro bono attorney. Pnina filed a petition pursuant to the Hague Convention.
D.L. was nine years old. D.L. departed from Israel on July 15, 2008, and his return flight was scheduled for August 29, 2008. Thus, the date of the allegedly wrongful retention is August 29, 2008. The record was clear that Eyal's retention of D.L. in the United States violated Pnina's custody rights. The Rabbinical Court of Haifa formally adjusted D.L.'s primary physical custody to his mother in Israel. Pnina was clearly exercising her custody rights at the time of D.L.'s retention in the United States. The court noted that even a minimal exercise of custody rights will satisfy this requirement. "Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights." Tsui, 499 F.3d at 277. Finally, the evidence support the conclusion that Israel was D.L.'s habitual residence immediately prior to his retention in the United States. According to the Third Circuit, "a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder, 63 F.3d 217, 224. The Third Circuit has observed that "a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." Under this standard, Israel qualified as D.L.'s habitual residence. Even though D.L. was physically present in the United States for slightly more than a month immediately prior to his retention, there was no evidence that D.L. had sufficient time to acclimate to life in the United States. Nor did the evidence indicate that D.L. would have perceived a "degree of settled purpose" in his father's Ohio home. D.L.'s trip to Ohio was intended as nothing more than a temporary summer vacation with his father. Hence, the United States did not become D.L's habitual residence prior to his retention.
Eyal alleged that Pnina consented to D.L.'s removal; that Pnina acquiesced in Eyal's retention of D.L.; and that Pnina failed to initiate proceedings under the Convention within one year of the retention, and that D.L. is well-settled in his current location.
Eyal argued that the court should infer consent to retention by virtue of Pnina's
willingness to send D.L. to the United States. The petition did not allege D.L.'s wrongful removal from Israel-rather, it complained that D .L. was wrongfully retained in the United States. D.L. went to Ohio with a round-trip ticket to return on August 29, 2008. There was no evidence that Pnina agreed that Eyal could retain D.L. in the United States after August 29, 2008. According to Eyal, "[t]he record is devoid of any evidence" that Pnina made efforts to secure D.L.'s return to Israel. He contended that Pnina failed to pursue any 11 custodial rights from August 29, 2008, until her visit to the United States in the summer of 2009. The record did not support this argument. To the contrary, Pnina's testimony was replete with evidence of her attempts to secure D.L.'s return: she never agreed to relinquish custody; during phone calls, she begged Eyal to return D.L.; and she searched (albeit unsuccessfully) for a lawyer in Israel. All of the evidence demonstrated that Pnina never acquiesced to Eyal's retention of D.L., and, therefore, the court rejects this affirmative defense.
The court noted that Pnina commenced proceedings under the Hague Convention in October of 2009, more than a year after the wrongful retention of D.L. on August 29, 2008. Eyal attempted to show that D.L. was well-settled in his current location, but his efforts were only been partially successful. In analyzing the applicability of the well-settled defense to a particular case, courts should look for "substantial evidence of the child's significant connections to the new country[,]" Castillo v. Castillo, 597 F.Supp.2d 432, 437-38 (D.Del.2009), and "consider any relevant factor informative of the child's connection with his or her living environment.". Considering all of the relevant factors together, the court could not find, by a preponderance of the evidence, that D.L. was well-settled. D.L. acclimated well to his studies during his one full year of elementary school in Red Lion, Pennsylvania. D.L.'s native language is Hebrew, but he was approaching fluency in English. His third grade teacher testified that D.L. assimilated into the classroom and that she observed appropriate academic progress and social interaction during the school year. D.L.'s elementary school experience weighed in favor of a finding that he was well-settled. However, there was sparse evidence that D.L. was settled with respect to the other factors that the court must consider in its analysis, including the child's age, stability in the child's residence, the child's participation in extracurricular or community activities, the presence of friends or relatives in the area, and the respondent's employment and financial position. Eyal presented limited evidence on each of these factors, but the evidence did not demonstrate that D.L. had a significant connection to the community where he currently lived. During the period of his wrongful retention in the United States, he resided in three different locations and attended three different schools. Although D.L. had connected with a handful of acquaintances and peers since that time, the network of friends surrounding him was limited. With respect to family and relatives, there was no doubt that he had far more connections in Israel. The record did not reflect that D.L. or Eyal established connections to any church or synagogue, engaged in any extracurricular activities or other community involvement in central Pennsylvania. There was no evidence of family relations in the area, with the exception of occasional visits by Hadar. D.L. has had several nannies, the most recent of which was
retained approximately one month ago. D.L. appeared to spend a considerable amount
of time watching television and playing video games. The court concluded that D.L. was not well-settled in his current location, and found that Eyal failed to prove that any of the exceptions listed in Article 13 of the convention apply to this case.
The court observed that Eyal had engaged in behavior that was manipulative
and otherwise contravenes the purposes of the Hague Convention, and that he should not be rewarded for such behavior. At the last minute, Eyal unilaterally decided not to return D.L. to Israel, and he has confirmed his intent to keep D.L. in the United States permanently, with no regard for Pnina's custody rights. Eyal brought a baseless complaint of sexual abuse to authorities during Pnina's visit in Red Lion, in a desperate attempt to maintain control of D.L.'s custody. Eyal's improper conduct also compeled the court to exercise its discretion to return D.L. to Israel.