In von Meer v Hoselton, 2018 WL 1281949 (D. Arizona, 2018) the
court granted the petition for return to Italy.
Petitioner, a German citizen and resident of Italy, and
Respondent, a United States citizen, were involved in a long term domestic
relationship. Their child (“N.V.”), was born in Germany in late 2002. N.V. held
both German and United States citizenship. Petitioner, Respondent and N.V.
lived together in Germany until early 2004, when the three moved to Italy and
lived there together. In 2006, Petitioner and Respondent ended their domestic
relationship and began maintaining separate households, both in the area of
Florence, Italy. N.V. would alternate living with each parent on a weekly
basis. This arrangement ended in the autumn of 2016, when Respondent relocated
to Arizona for work and to further her education. At that time, N.V. remained
in Italy with Petitioner and continued attending the private school in which
she had previously been enrolled. On December 21, 2016, several months after
Respondent relocated to Arizona, a judge of the Florence Court entered an order
granting Petitioner exclusive custody of N.V. In April 2017, Petitioner bought
a round-trip airline ticket for N.V. to spend the summer with her mother in the
United States. In June 2017, when N.V. had completed her school year in
Florence, Petitioner flew with her from Europe to Las Vegas to meet Respondent.
Petitioner returned to Italy. N.V.’s round-trip ticket bore a return date of
August 16, 2017, shortly before her school would begin the new academic
year. Petitioner had provided N.V. with
a data-enabled cellular telephone. In July 2017, after N.V.’s communications to
her father had diminished and Petitioner was unable to reach her on her phone,
Petitioner’s attorney in Italy, Roberta Ceschini, began communicating with
Respondent via email to communicate Petitioner’s expectation that Respondent
would return N.V. to Italy on the August 16 flight. Ms. Ceschini advised
Respondent that if she did not return N.V. timely, Ceschini would file a
petition under the Hague Convention. Respondent acknowledged in a July 27, 2017
email to Ceschini that “it was my understanding [N.V.] is to return in August
from the get go,” but advised that N.V. did not want to return to Italy, and
that as N. V’s mother, “it is my duty to support and protect her.” N.V. did not
return to Italy on August 16, 2017, or at any time thereafter.
The district court found that both
parties’ testimony, N.V’s round trip airline ticket and the email
communications introduced into evidence all demonstrated that Petitioner and
Respondent had agreed N.V. would stay in Arizona until August 16, 2017, and
thereafter return to Italy. The retention at issue began on August 16, when
Respondent did not return N.V. to Europe as agreed and continues to this day. The Court found that as of
August 16, 2017, the habitual residence of N.V. was Italy. The parties had
lived there with N.V. together from 2004 until their separation in
approximately 2006, and then separately from 2006 until late 2016, when
Respondent relocated to Arizona. N.V. remained in Italy with Petitioner and
continued to attend school there after Respondent moved to Arizona, and neither
party evinced any indication of an intent for N.V. to leave. At the point N.V.
came to Arizona in June 2016 to visit her mother, the parties agreed she would
be returning to Italy on August 16 to begin her next school year. Regardless of
what Respondent may have individually intended to do after N.V. arrived to
visit her, the Court finds that the last shared intent of the parties was for
N.V.’s habitual residence to be Italy. Murphy, 746 F.3d at 1150.
At the hearing, Petitioner introduced an Order of the Florence
Court dated December 21, 2016, granting him exclusive custody of N.V. The Court
concluded that the retention of N.V. as of August 16, 2017, and thereafter
breached Petitioner’s custody rights in that, during the period of wrongful
retention, he lost his ability to communicate with N.V. and participate in the
decision of where and under what circumstances she would live. He also has lost
his ability to parent N.V. or otherwise have physical access to her.
Respondent’s retention of N.V. has breached the custody rights attributed to
Petitioner under the Florence Court Order. The Court found the evidence was
unequivocal that Petitioner was exercising his rights of custody at the time of
N.V.’s retention in Arizona. The Court concluded that Respondent did wrongfully
retain N.V. from returning to Italy, her last habitual residence.
The district court rejected Respondents argument that returning
N.V. to Italy would present a grave risk of physical or psychological harm.
Respondent argued that the school system in Arizona is better equipped to
address N.V.’s dyslexia and similar learning disabilities
than her school in Florence, and the Italian secondary education system
generally. This argument goes to the issue of the best interests of the child
and is properly considered by the family court with jurisdiction to determine
custody issues.
Respondent also presented evidence that N.V. had on one or more
occasions seen Petitioner “smoke weed and hash,” and that she also had seen
Respondent in the car while, or after, drinking alcohol. The Court held that the allegations if true,
especially absent testimony or other evidence that Petitioner put N.V. at risk
of harm while engaged in these acts, did not rise to the level of grave harm
contemplated by Article 13(b) of the Convention.
At the hearing, N.V. testified that she wanted “to live with my
mom and be here in America because I was living in a really sad, miserable
place in Italy with my dad.” N.V. gave as reasons for her desire to live in the
United States with her mother the following: that she was lonely and had only
one good friend in Italy at her school; that her father’s home was isolated and
there were no children her age nearby; that she was bullied at school because
her mother was not present; that she was not learning proper English at the
Italian school; and that her father drank and smoked “weed and hash.” N.V. was
adamant about her desire to remain with Respondent in Arizona. The Court found
that N.V. objected to being returned to Italy, the first element required for
the “wishes of the child” exception to the Convention to apply. It also found
that, at 15, N.V. attained an age and
enough of a degree of maturity that a Court could appropriately take her views
into account.
The Court exercised its discretion not to apply the exception in
this matter for two distinct reasons. First, the Court was persuaded that “in
making its determination [whether to apply the wishes of the child exception],
a court should also consider whether a child’s desire to remain or return to a
place is ‘the product of undue influence,’ in which case the child’s wishes
should not be considered.” Tsai-Yi v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3rd Cir. 2007)(internal
citations omitted). The Court concluded that N.V’s testimony contained many of
the hallmarks of coached or prepared testimony, and thus to an imprecisely
known but significant degree is the product of Respondent’s influence on her.
Much of N.V.’s testimony consisted of answers that she began to provide before
Respondent had even completed her questions, and Respondent also led N.V. in
her questioning, a habit the Court observed multiple times and to which it
sustained Petitioner’s objection on the single occasion Petitioner did object.
The Court concluded, based on the fact that N.V. has been exclusively with
Respondent for the past nine months and the manner in which N.V. testified as
to her desire to stay in the United States and her reasons therefor, that
N.V.’s stated wishes were likely the product of Respondent’s undue influence
during those nine months.
The Court also concluded this was an inappropriate matter in which
to apply the wishes of the child exception and refuse to order N.V.’s return to
Italy for an independent reason. “District courts may decline to apply a
defense where doing so would reward a parent for wrongfully [] retaining the child
[] in violation of a Contracting State’s custody orders.” Custodio v. Samillan, 842 F.3d 1084, 1092 (8th Cir. 2016). The Court
found this to be just such a case. Petitioner produced a lawful order of the
Florence Court, unchallenged by Respondent, awarding exclusive custody to
Petitioner as of December 2016. When Respondent retained N.V. beyond the agreed
upon date of August 16, 2017, she violated the Contracting State’s custody
order. To except application of the Convention on the basis of N.V.’s wishes,
which were in whole or in part the product of feelings she developed during the last seven months while
she was unlawfully retained in Arizona by Respondent, “would allow [Respondent]
to benefit from her own violations of the Convention.” Garcia, 808 F.3d at 1168.
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