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Sunday, August 7, 2016
Pennacchia v Hayes, 2016 WL 4059246 (D. Idaho,2016) [Italy] [Habitual residence] [Petition denied]
In Pennacchia v Hayes, 2016 WL 4059246 (D. Idaho,2016) SAPH was born in Seattle, Washington on August 24, 2010. In October of 2010, after SAPH’s birth, the parties decided that Ms. Hayes and SAPH would travel with Mr. Pennacchia to his home in Anagni, Italy to try and live as a family. Petitioner argued the parties’ intention was to move to and live in Italy as a family and, therefore, SAPH’s habitual residence was Italy because that is where she had lived from the time she was two months old, attended preschool, and is where the locus of her family and social environment had developed for the majority of her life. Respondent argued that she agreed to live with the Petitioner in Italy during her year of maternity leave but that it was a “trial basis” and a “conditional stay” that could be terminated if the parties’ relationship did not work out. The District Court denied the petition finding that Seattle was the childs habitual residence. In Mozes, 239 F.3d at 1074 the Ninth Circuit instructs that where, as here, the child at issue has “not yet reached a stage in their development where they are deemed capable of autonomous decisions as to their residence,” the appropriate inquiry is the subjective intent of the parents. Thus, the Court will “look for the last shared, settled intent of the parents.” After taking into account the shared, settled intent of the parents, the Court then asks whether there has been sufficient acclimatization of the child in the new country to trump that intent. Mozes, 239 F.3d at 1074. Before traveling to Italy in October of 2010, Ms. Hayes made several arrangements and executed many documents evidencing her intention was that SAPH’s habitual residence was the United States. Following SAPH’s birth, Ms. Hayes executed a will and opened a college savings plan for SAPH under Section 529 of the Internal Revenue Code. Ms. Hayes prepared paperwork to appoint guardians for SAPH in the United States. Ms. Hayes presented the document to Mr. Pennacchia who agreed to and signed the paperwork appointing the United States guardians. Ms. Hayes also obtained a United States passport for SAPH, private United States medical insurance, a Social Security account, and listed SAPH as her dependent on her United States taxes. The Respondent took other actions that demonstrate her own intention was to remain a resident of the United States. She consistently maintained a home, vehicle, bank accounts, credit cards, driver’s license, and health care all in the United States. In addition, the Respondent paid taxes and voted in the United States and traveled on a United States passport. These actions only established the Respondent’s residence, not SAPH’s. However, they were indicative of the Respondent’s intentions concerning her own permanent residence and, naturally, her intentions as to SAPH’s place of habitual residence. It is reasonable to infer the Respondent’s intention was for her infant child to be a habitual resident of the same country that she too called home. The Court found Petitioner failed to prove, that the parties’ intention was for SAPH’s habitual residence to be Italy. Instead, the Court finds the evidence proves that SAPH’s habitual residence was and is the United States. cases where there is no shared, “settled intention,” a country may be deemed a child’s habitual residence if unequivocal and objective facts prove the child has acclimatized to the new country to a degree that the Court could “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child ‘out of the family and social environment in which its life has developed.’ The Court found the evidence did not show that SAPH has acclimated to Italy such that her habitual residence has changed from the United States. Petitioner offered only very limited evidence of SAPH’s Italian influences or her acclimatization. The Respondent came forward with compelling, credible evidence that SAPH’s habitual residence was, and remained, the United States during their time in Italy. While in Italy, SAPH attended a trilingual school where she was known as the “American Girl,” celebrated the Fourth of July and, for nine months, had an American-English speaking nanny. SAPH traveled to the United States frequently and for extended stays with her American family and friends. These strong cultural ties to the United States demonstrated that despite her residing in Italy for large portions of the year, she retained her original habitual residence in the United States.