In De Lucia v. Castillo, 2019 WL 1905158 (M.D. Georgia, 2019) the district court granted the petition of Roberto De Lucia, an Italian citizen, for the return of his children, R.T.D.L. and N.A.D.L to Italy. The children’s mother, Respondent Rachel Marina Castillo, was a citizen of Italy and Peru who moved with the children from Italy to Georgia in March 2018. De Lucia and Castillo began a relationship in Italy in 2010, although they never married. They had two children: R.T.D.L., who was born in November 2012, and N.A.D.L., who was born in August 2014 (“Children”). Both Children were born in Monza, Italy, and their birth certificates list De Lucia as their father. Castillo’s parents were United States citizens, and De Lucia and Castillo agreed to obtain permanent resident status (“green cards”) for the Children so that they could visit their grandparents easily and ultimately pursue higher education in the United States. When De Lucia agreed to obtain the green cards for the Children, he knew they would have to be present in the United States for some part of each year to maintain the green cards, but he did not agree for them to move to the United States. He believed that the Children would continue to live in Italy until they were old enough to attend college. Each summer, Castillo, A.M.A., and the Children spent approximately two months with Castillo’s parents in Athens, Georgia, then returned to Italy for school.
De Lucia and Castillo separated in December 2016. After De Lucia and Castillo separated, De Lucia and Castillo shared unsupervised custody of the Children, and the Children lived with De Lucia at his parents’ house for part of each week. De Lucia and Castillo did not have a formal, court-ordered custody arrangement. In 2017, Castillo, A.M.A., and the Children visited Castillo’s parents for the summer. In September 2017, Castillo and the Children returned to Italy, but A.M.A. did not. De Lucia told Castillo that he did not want the Children to keep their green cards and that he would not permit the renewal of their passports. De Lucia wanted to require that the Children’s green cards be revoked, and Castillo would not agree to that condition. After De Lucia told Castillo in September 2017 that he did not want the Children to keep their green cards and that he would not permit the renewal of their passports, Castillo filed two police reports against De Lucia. Castillo reported that De Lucia had aggressive and violent attitudes. In November 2017, Castillo returned to the police. She reported that De Lucia raped her in January 2012; that he beat her and put his hands around her neck in May 2012 when she was pregnant with R.T.D.L.; that De Lucia sent her “an endless series” of threatening messages every day; and that when she was in a parking lot to make arrangements for the Children in October 2017, De Lucia pushed her and shut the car door on her finger.
At the hearing, Castillo testified that De Lucia lost control and became physically violent with her, grabbing her by the neck once while she was holding one of the Children and pushing or hitting her on several other occasions, sometimes in front of the Children. Castillo also testified that De Lucia told her several times that he would kill her. Castillo testified that after De Lucia moved out of her apartment in December 2016, De Lucia did not hit her or put his hands on her in an inappropriate way, although he did use threatening words often, at times in front of the Children. Castillo did not produce any of the threatening messages she reported to the police in November 2017.
On March 23, 2018, without notification to De Lucia, Castillo took R.T.D.L. and N.A.D.L. to the United States. Shortly after that, Castillo told De Lucia via WhatsApp that she could not return to Italy right away but planned to return in the summer, and she invited him to come see the Children. In response, De Lucia told Castillo to come back to Italy and that she did not have his consent to take the Children out of Italy. De Lucia later filed an accusation against Castillo for child abduction. At the hearing, De Lucia testified repeatedly that he did not give consent for the Children to travel to the United States.
On March 30, 2018, Castillo’s lawyers filed a custody and maintenance case against De Lucia in Italian civil court. Castillo’s lawyer confirmed that Castillo did not intend to return to Italy with the Children, and on October 23, 2018, the Italian Court granted De Lucia temporary sole custody of the Children until an additional hearing could be held.
The district court found that Italy was the children’s State of habitual residence on March 23, 2018, the day Castillo removed them from Italy. The Eleventh Circuit construe[s] the term’s ‘ordinary meaning as understood in the public law of nations. Citing the High Court of Justice in the United Kingdom, the Eleventh Circuit observed that “a habitual residence is established when ‘the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.’” (quoting In re Bates, No. CA 122.89 at 9-10, High Court of Justice, Fam. Div’n Ct. Royal Court of Justice, United Kingdom (1989)). Castillo contended that both Italy and the United States should be considered the Children’s places of habitual residence. The Court concluded that a child can have only one habitual residence at a time. Most (if not all) U.S. courts share the view that a person has only one habitual residence at a time. See, e.g., Didon v. Castillo, 838 F.3d 313, 316 (3d Cir. 2016) The Eleventh Circuit has offered “insight into the meaning of ‘habitual residency’ ” in “identifying when a child’s habitual residence has been changed.” Pfeiffer, 913 F.3d at 1024. The “two requirements to alter a child’s habitual residence” are “(1) the [people entitled to fix the child’s residence] must share a ‘settled intention’ to leave the old habitual residence behind; and (2) an ‘actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized’ must occur.” Id. (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1252-53 (11th Cir. 2004)) (per curiam). The Court could not find that the United States was the habitual residence of R.T.D.L. and N.A.D.L. on the date of removal, March 23, 2018. The evidence did not demonstrate a shared and settled intention of De Lucia and Castillo to abandon entirely the Children’s habitual residence in Italy and change it to the United States. At most, the evidence showed that De Lucia and Castillo shared a settled intention for the children to live in the United States each summer but live in Italy for the rest of the year. And, regardless of Castillo’s intentions with regard to maintaining the green cards, was clear to the Court that De Lucia did not share those intentions.
Castillo argued that even if the Children can only have one habitual residence at a time, they had alternating habitual residences such that both Italy and the United States should be considered the Children’s places of habitual residence. She relied on two Ninth Circuit cases, Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), and Valenzuela v. Michel, 736 F.3d 1173 (9th Cir. 2013)in support of this argument, but neither supported finding that the United States was the Children’s place of habitual residence on the date of removal under the facts of this action. The Court concluded that the State of habitual residence for R.T.D.L. and N.A.D.L. immediately before the removal was Italy.
De Lucia established, and Castillo did not dispute, that De Lucia had custody rights under Italian law, that he was exercising those rights at the time of the removal, and that Castillo’s removal of the children to the United States violated De Lucia’s custody rights.
Under Italian Civil Code Article 316, “[b]oth parents are entitled with parental responsibility and they shall exercise it by mutual agreement.” “When both parents have recognized a child who was born out of wedlock, they shall be both entitled to exercise parental responsibility.”. under Article 316, both parents have the right to decide on the children’s residence, even if the parents are not married. To change a child’s habitual residence, both parents must agree on the change or convince a judge to grant one parent sole authority to make this decision. The Court found that Castillo “wrongfully removed” the Children from Italy.
Castillo argued that even if the Children were wrongfully removed from Italy, one of the Convention’s narrow exceptions to return applies. Under the Convention, the Court is not bound to order the return of the Children if Castillo proves that “there is a grave risk that [the Children’s] return would expose the[m] to physical or psychological harm or otherwise place the child[ren] in an intolerable situation.” Convention art. 13. “Castillo “must ‘show that the risk to the child[ren] is grave, not merely serious. In this Circuit, the district court is not required to also find that the home country is unable to protect the child from that grave risk of harm.” *8 A “child’s proximity to actual or threatened violence may pose a grave risk to the child.” Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008); Gomez, 812 F.3d at 1013, 1015. And in Taylor v. Taylor, 502 F. App’x 854 (11th Cir. 2012) Castillo argued that the Children face a grave risk of harm if they are returned to Italy because she had been the victim of domestic violence at the hands of De Lucia; because De Lucia had been sexually inappropriate with the Children; and because the Children would be separated from their primary caretaker if the Children were returned to De Lucia. Castillo presented evidence that De Lucia has a bad temper and has engaged in violent behavior directed at her. But the record also established that the physical violence was isolated, sporadic, and not directed to the Children. Castillo did not testify about any incidents of violence against the Children, and she did not present evidence that she reported any such incidents to the police. And, according to Castillo, De Lucia did not commit any acts of physical violence against her after he moved out of her apartment in December 2016 This evidence suggested that Castillo herself does not believe that De Lucia posed a grave risk of harm to the Children. The Court was not persuaded that Castillo proved by clear and convincing evidence De Lucia posed a grave risk of harm to the Children.
Castillo also contended that De Lucia engaged in inappropriate behavior of a sexual nature with the Children. She pointed to two photos of the Children without clothes, as well as evidence of the “game of the father.” The Court found that the two photos of the Children were inconclusive. Castillo did not present evidence that De Lucia sexually abused either of the Children. The Court also observed that Italy is capable of protecting the Children if they were subjected to serious threats of harm.
Finally, Castillo argued that the Children would be placed in an intolerable situation if they were returned to Italy because they would be cut off from their mother, at least until the Italian court could adjudicate the custody dispute (unless the parties can reach an interim visitation agreement). The Court noted that in every case where a child is returned under the Convention, she may face a risk of psychological harm by being cut off from one parent while the custody dispute is adjudicated. Castillo did not point the Court to any precedent suggesting that this concern merited application of the narrow grave risk of harm exception. Rather, the “intolerable situation” exception has only been applied in a handful of circumstances. The Court concluded that Castillo did not prove by clear and convincing evidence that the grave risk of harm exception to return applied here.
Castillo argued that if the Court ordered return of the Children, the Court should take measures to lessen the risk of harm to the Children. The Court found no grave risks that would justify denial of De Lucia’s petition.
De Lucia asked that Castillo be required to pay his fees and expenses. The Eleventh Circuit has suggested that there are two circumstances under which an award under § 9007(b)(3) is “clearly inappropriate.” The first is when “a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). The second is when “a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified.” In this case, De Lucia was proceeding in forma pauperis, so he paid no court fees. De Lucia was represented by pro bono counsel, so he owed no fees or expenses to his lawyers. The Court declined to make such an award in this case. The Court, however, found that Castillo should be required to help pay for the Children to return.