Cascio v Pace, --- F.Supp.2d ----, 2014 WL 197724 (N.D.Ill.)[Italy] [Rights of Custody] [Public Service Org] [Consent] [well settled] [Petition denied]

                                                      
In Cascio v Pace,  --- F.Supp.2d ----, 2014 WL 197724 (N.D.Ill.)  Petitioners, Silvestre Cascio and an Italian public services agency, Azienda Servizi Alla Persona Ambito 9 ("ASP"), petitioned for return of Cascio's two minor children, FC and MC, who were residing in Rockford, Illinois with their mother, respondent Rosa Maria Pace. The district court denied the petition.

Cascio was a citizen and permanent resident of Italy. Pace was born in Rockford, Illinois, and had dual U.S. and Italian citizenship. Cascio and Pace married in late 2000. The children were both born in Italy, and both had dual U.S. and Italian citizenship. Between 2000 and 2012, the family lived in Italy, with Cascio providing for the economic needs of the family and Pace acting as a homemaker. In September 2010, Cascio and Pace got into a physical altercation which began with Cascio kicking Pace in her backside and resulted in Pace calling the police. After a police investigation, the matter was referred to the Italian minors court who appointed ASP to monitor and supervise the children, provide support to the parents in parenting skills, and to provide marital mediation between Cascio and Pace. ASP also had to approve, and in turn seek judicial approval of, any decision to move the children. ASP never removed the children from the physical custody of their parents.   During nearly all of the summers between 2000 and 2012, the family vacationed in Rockford, where Pace's mother and extended family lived, for approximately three months at a time. In June 2012, Pace brought the children to Rockford for a summer vacation after informing ASP that she would return on September 2, 2012. Cascio joined Pace and the children on July 27, 2012. The entire family had tickets to return to Italy on September 2, 2012. In late August, Cascio and Pace had an argument in the presence of the children, wherein Pace made it known that she would prefer not to return to Italy, but rather wanted the family to relocate to the United States. Despite that argument, and continued tension for the remainder of the vacation, Pace began packing to return the family to Italy in early September. On the morning of September 2, 2012, Pace informed Cascio that she and the children would not be returning to Italy with him that afternoon, and asked that he move to the United States and stay with them. After a period of silence, and then some discussion, Cascio indicated that he consented to her staying in the United States (which he testified meant the children would remain as well) and would move with her to Rockford. Following the meeting, Cascio made a phone call, packed his clothing, and rode to the airport with Nunzio Pace, where he boarded a plane and left for Italy. Pace testified that Cascio returned to Italy to dispose of their property and see to his job, but promised he would return by no later than Christmas. Indeed, Pace and Nunzio Pace both testified that Cascio discussed local employment opportunities and even what car he would like to purchase in the United States on the drive to the airport. Cascio, on the other hand, testified that he only agreed to permit Pace to stay because he felt he was under duress, alone as he was, at the time of the meeting and that he needed to agree in order to be able to catch
his flight. He also testified that he thought he could subsequently change Pace's
mind and he never had any intention of relocating to the United States or
consenting to the children's permanent relocation. Beginning the next day, Cascio made it clear to Pace that he would not be returning to the United States and that he
wanted her and the children to rejoin him in Italy. Pace made it equally clear
that she did not plan to return to Italy with the children. ASP was informed of
Pace's failure to return on October 1, 2012, after the family missed an ASP-ordered appointment with a psychologist. ASP and Cascio filed a joint petition pursuant to the Hague Convention on September 27, 2013, a few weeks more than a year after Pace and the children failed to return from Rockford. Cascio has remained in contact with the children through Skype and telephone calls.

  Pace  offered proof as to the children's life in Rockford, which was 
relevant to one of the exceptions in the Hague Convention. MC, the younger child, was four years old, enrolled in pre-school, and spent considerable time with Pace's family and extended family in Rockford. MC spoke English almost exclusively, despite Pace and Nunzio Pace's attempt to keep him bilingual. Similarly, FC, the elder child, was enrolled in his second year of school in Rockford, participated in activities, spent time with friends, attended church, and also spends time with Pace's family. According to Pace, FC struggled with English when he first arrived, but quickly caught on and now remains bilingual. Cascio testified, however, that FC spends more time in the home, seems bored, and is not as active as he was in Italy. As to the children's living conditions, Pace and the children live with Pace's mother. Pace works full-time as a bank teller, making $10.24 an hour. The children currently lack health insurance, but are currently provided healthcare by a state program and are in good health. Pace's mother financially assists Pace. The unrebutted testimony at trial was that, based on Pace's family support structure and her own employment, the children were well-provided for in Rockford and enjoy regular outings and significant stability in their lives.

The parties agreed that the children's place of habitual residence was Italy immediately prior to their retention in the United States.  The parties agreed that
Cascio had rights of custody, but Pace objected that ASP's rights were "more of a
supervisor than a custodian" and thus "should not be considered by this Court to
be a custodian." Based on the controlling case law, the court rejected that argument. The unchallenged testimony concerning ASP's obligations to the children included the fact that the family was not permitted to move the children without first obtaining leave from ASP and the minors court. That was sufficient in and of itself-the Supreme Court has held that the right to veto a child's move, a so-called ne exeat right, qualifies as being a right of custody under the Hague Convention as the right to "determine the child's place of residence." See Abbott v. Abbott, 560 U.S. 1, 10-21, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). Although Pace correctly pointed out that ASP never exercised the authority, the uncontroverted testimony also suggested that ASP had the authority to remove the children from their parents' care had it been determined necessary to protect the welfare of the children. Accordingly, ASP  proved by a preponderance of the evidence that it also had "rights of custody" on which it may base a petition for return. See E. Sussex Children Servs. v. Morris, 919 F.Supp.2d 721, 730-31 (N.D.W.Va.2013) (collecting cases which hold that public social services organizations can have "rights of custody" under the Convention). The court found that both Cascio and ASP were exercising their custody rights at the time of the retention.   Consequently, both petitioners met their burden to show a prima facie case for wrongful retention of the children in the United States.

Pace first argued that the children should not be returned to Italy, notwithstanding the prima facie proof, because Cascio consented to the children remaining in the United States."The consent exception applies when a petitioning parent, either expressly or through his conduct, agrees to a removal or retention before it takes place." Walker, 701 F.3d at 1122.   Cascio argued that his agreement was given under duress and that his subsequent conduct showed that he never actually consented to the retention. Based upon, inter alia, Cascio's admitted willingness to invent testimony under oath to shade the truth in his favor, the court found Cascio's testimony to be without credibility.  The court found that Cascio expressly consented
to the retention before it occurred, and that his later change of heart is
irrelevant. The court found that Pace had proven by a preponderance of the evidence that the retention of the children was not wrongful, based on consent, as against Cascio's rights of custody. This conclusion did not end the matter, as there was no evidence that ASP ever consented to, or thereafter acquiesced in, the retention of the children in the United States. The court found that Pace had not proved by a
preponderance of the evidence that the retention of the children was not wrongful,
based on consent, as against ASP's rights of custody.

The Court observed for the “settled” defense to apply, Pace had to prove by a
preponderance of the evidence that (1) the petition for return was filed more than
a year after the retention; and (2) the children were settled in their new
environment in Rockford. See Habrzyk, 759 F.Supp.2d at 1028-29. Here, although the retention began on September 2, 2012 and the petition was not filed until September 27, 2013, Petitioners argued that some form of equitable tolling should apply to reduce the approximately thirteen months between the retention and the filing to some amount of time less than a year, thereby making the exception inapplicable. The Court observed that even those cases which permit equitable tolling do so only where there is evidence of fraudulent concealment, that is, where there is evidence that the abducting parent took affirmative steps to conceal their location from the other parent (and presumably others who have rights of custody). See Duarte, 526 F.3d at 570.  Here, there was no evidence of fraudulent concealment, Pace took no affirmative steps to hide the children's location from either Cascio or ASP. Accordingly, even if equitable tolling applies in the event of fraudulent concealment (an issue on which the court passed no judgment), that would nevertheless provide no relief to Cascio or ASP. The factors courts consider in determining if a child has significant
 connections to the new country include: (1) the child's age; (2) the stability
 and duration of the child's residence in the new environment; (3) whether the
 child attends school or day care consistently; (4) whether the child has friends
 and relatives in the new area; (5) the child's participation in community or
 extracurricular school activities, such as team sports, youth groups, or school
 clubs; and (6) the respondent's employment and financial stability. Id. As to the age of the children, FC was nine as of the time of briefing and MC was four. Although Cascio argued that MC's young age cut in favor of finding that Pace has not met her burden, courts have been far from consistent in whether they consider a young age to be in favor of a finding of settled. See Broca v. Giron, No. 11 CV 5818(SJ)(JMA), 2013 WL 867276, at *6 (E.D.N.Y. Mar. 7, 2013). Although MC's age might raise an
inference that he was less likely to form an attachment to a particular place, in
this case, the testimony revealed that MC switched to English as his primary
language. His mother and Nunzio Pace both indicated that they had struggled to
keep him bilingual in Italian but had been largely unsuccessful thus far. Thus,
the court founds that MC's young age did not weigh against applying the exception.
As to the second, third, fourth, and fifth factors, they all weighed in favor of finding that Pace has met her burden to show that the children were settled.  The sixth factor, Pace's employment and financial situation, was somewhat more complicated. Pace was employed full time and making slightly more than ten dollars an hour. However, she admitted in her petition for divorce that she lacked the capability to provide for her family by herself. Also, the court was concerned that the children lacked health insurance, notwithstanding Pace's testimony that they were in good health and receive some health care from a state program. In contrast, however, it was clear that Pace receives support from her sizeable family in the area and there was no testimony to support the conclusion that the family support is in any danger of ending.  Balancing those factors, the court found that Pace met her burden to prove by a preponderance of the evidence that the children were settled in their new environment in Rockford, Illinois. The petition was denied.