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Wednesday, March 21, 2018

von Meer v Hoselton, 2018 WL 1281949 (D. Arizona, 2018)[Italy] [Grave risk of harm] [age and maturity defense] [Petition granted]

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.

          The court also found that Respondent did not establish the ‘age and maturity” defense.

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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