Bobadilla v Cordero, 2014 WL 3869998 (M.D.N.C.) [Mexico] [Now Settled] [Discretion to Order Return] [Petition granted]

In Bobadilla v Cordero, 2014 WL 3869998 (M.D.N.C.)   Ms. Ramos and Mr. Cordero were citizens of Mexico. They never married. Their child, B.F.S.R.,  was born in Cabarrus County, North Carolina, in 2006, and was a citizen of both Mexico and the United States. Neither Ms. Ramos nor Mr. Cordero had legal immigration status in the United  States.   In December 2009, Ms. Ramos and B.F.S.R. moved to Zacatecas, Mexico, where the parties had planned to build a small house on Mr. Cordero's parents' land. Mr. Cordero paid for the airplane tickets. The parties agreed that Mr. Cordero would join Ms. Ramos and the child after he earned more money in North Carolina to fund the construction. Ms. Ramos and the child lived with Mr. Cordero's family, and Ms.Ramos oversaw the construction of the parties' new home, the exterior of which was completed in March or April of 2010. Ms.Ramos and B.F.S.R. travelled to Tijuana to stay with her family. At some point while Ms. Ramos was in Tijuana, the parties ended their romantic relationship because of Mr. Cordero's refusal  to come to Mexico. In August 2010, the parties agreed that B.F.S.R. would travel to North Carolina to stay with Mr. Cordero for a visit. Before B.F.S.R. left Mexico, Mr. Cordero signed a notarized statement agreeing to return B.F.S.R. to Ms. Ramos in Tijuana on January 14, 2011,  and provided the statement to Ms. Ramos. Mr. Cordero paid for B.F.S.R.'s travel expenses.   Mr. Cordero did not return B.F.S.R., despite Ms. Ramos's requests and demands. Since then, B.F.S.R. has lived with Mr. Cordero, Mr. Cordero's brother, and Mr. Cordero's sister, her husband, and her daughter. He attends school in Concord, North Carolina, he plays soccer, and he sees friends and Mr. Cordero's family regularly. Mr. Cordero has allowed only intermittent telephone and internet-video contact between the child and Ms.  Ramos. In September 2011, Ms. Ramos attempted to cross over the United States border using a false passport and was arrested and deported.

In March 2012, Mr. Cordero filed a custody petition in North Carolina district court. That same month, Ms. Ramos filed a Hague application to the Mexican authorities, for which the custody suit was stayed. Petitioner Rosa Ramos Bobadilla sought the return of her minor child, B.F.S.R., to Mexico. Ms. Ramos, who was not employed, searched for an attorney to assist her, eventually obtaining representation pro bono from Legal Aid of North Carolina. She filed this petition on March 11, 2014.
The Court held an evidentiary hearing  at which Mr. Cordero appeared in  person and Ms. Ramos appeared by video feed.  The Court found that B.F.S.R. was habitually residing in Mexico as of January 14, 2011, as the  shared intent of the parents was to settle in Zacatecas. The parties agreed that they would move to Zacatecas and build a house on Mr. Cordero's parents' land. Mr. Cordero purchased one-way tickets for Ms. Ramos and the child. Ms. Ramos and the child traveled to Mr. Cordero's parents' home, and they began building the house, for which Mr. Cordero sent money. Even Mr. Cordero testified that he intended to join Ms. Ramos and the child in Zacatecas. They had no specific plans to return to the United States; indeed, return would have been difficult since neither parent could do so legally. Because Mexico was the habitual residence of the child and the other elements of a prima facie case were 
established without dispute, the Court concluded that Mr. Cordero wrongfully retained B.F.S.R. 
within the meaning of the Hague Convention.

         Mr. Cordero asserted the "well-settled" affirmative defense. Ms. Ramos did not dispute that she failed to file her Hague petition within one year of the removal, but she contended  that B.F.S.R. was not well-settled in North Carolina. The district court concluded that a preponderance of the evidence did not show that B.F.S.R. was well-settled and that application of this narrow defense was not warranted. Mr. Cordero testified at the hearing in Spanish through an interpreter and the child's report cards from school were sent home in Spanish, establishing that B.F.S.R. lives in a Spanish-speaking household and community. Mr. Cordero also testified that the child's English gets better every day, making it clear that Spanish was his primary language. This indicated both that the child had not completely acclimated to a culture in which English is the predominant language and that a return to Mexico would not cause language problems common in many cases where the "well-settled" defense is applied. The child's life in North Carolina was not so different from his life in Mexico 
that it would be "worse to order the child to be uprooted."     Belay v. Getachew, 272 
F.Supp.2d 553, 562 (D.Md.2003). Moreover, there were significant aspects of the child's life in North Carolina that were not stable.  The child had required therapy in North Carolina to deal with sadness over his parents' separation. Despite this, Mr. Cordero had not allowed the child to have contact with his  maternal grandparents and uncle in Cabarrus County and had not allowed the child to have  regular telephone or video-internet contact with his mother. This interference with family relationships is inherently disruptive and was particularly disruptive here. See  Lozano, ---U.S. at ----, 134 S.Ct. at 1236 (noting with approval that "American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child 'settled' " and citing cases.) This compared negatively to B.F.S.R.'s situation when he resided in Mexico, where he maintained relationships with both parents' families in that country. Finally, Mr. Cordero's immigration status made B.F.S.R.'s living situation tenuous, as his primary caretaker could be arrested and deported to Mexico at any time. See  In re R. V.B., --- F.Supp.2d ----, 2014 WL 3058250 at *12 (E.D.N.Y.July 7, 2014) (noting that "the immigration status of [the abducting parent] is a factor that disfavors finding the Child is settled"). Weighing all of these considerations, the Court found that Mr. Cordero had not established the  "well-settled" defense by a preponderance of the evidence.

          The district court observed that a Federal court retains the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention. (See  Miller, 240 F.3d at 402; England v. England, 234 F.3d 268, 270–71 (5th Cir.2000); Friedrich II, 78 F.3d at 1067 (citing Feder, 63 F.3d at 226) (citing Pub. Notice 957, 51 Fed.Reg. 10494, 10509 (1986)); Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 812 (N.D. Iowa 2003) , the Court  found that equitable justifications warranted the Court's exercise of its discretion even if  B.F.S.R. was well-settled. Ms. Ramos was unable to legally come to the United States for a custody hearing, whereas there were no legal impediments to Mr. Cordero's return to Mexico, where he was a citizen, for participation in a custody hearing there. Mr. Cordero also limited or even prevented opportunities for Ms. Ramos and her family to maintain a relationship with B.F.S.R. after the wrongful abduction. Antunez-Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800, 815 (N.D.Iowa 2003) (considering abducting parent's attempts to sever meaningful relationship with petitioner in exercising discretion to return child).   Ms. Ramos had convincingly shown that her delay in filing the petition should not weigh against her as the Court balances the equities. Ms. Ramos initiated efforts to retrieve B.F.S.R. soon after he was  wrongfully retained and even attempted to illegally re-enter the country so she could see her son. Moreover, Mr. Cordero was financially supporting Ms. Ramos up until their breakup, Ms. Ramos was indigent, and she diligently pursued pro bono representation. Mr. Cordero abducted B.F.S.R. with knowledge that Ms. Ramos did not have the legal or financial means to  enforce her rights. See, e.g .,  Belay 272 F.Supp.2d at 561;cf.  Lozano, — U.S. at ----, 134 S.Ct. at 1236-1240 (Alito, J., concurring) (approving consideration of concealment in exercise of equitable discretion.)

Murphy v Sloan, --- F.3d ----, 2014 WL 4179961 (C.A.9 (Cal.))[Ireland] [Habitual Residence] [Petition Denied]

In Murphy v Sloan, --- F.3d ----, 2014 WL 4179961 (C.A.9 (Cal.))   Sloan, a citizen of the United States, and Murphy, a citizen of Ireland, were married in California in 2000. They lived together in Mill Valley, in California, and had a daughter, E.S., in 2005. In October 2009, Sloan told Murphy that he felt their marriage was at an end, and moved to a different bedroom in their house. In January 2010, Murphy and Sloan enrolled E.S. in a private California preschool for the next fall. These plans changed in the spring of 2010, after Murphy proposed moving to Ireland so that she could get a master's degree in fine arts from University College Cork and so that E.S. "could experience going to school" there. Murphy and Sloan discussed the move to Ireland as a "trial period," and Sloan wrote to both the private preschool and the public school district to inform them of E.S.'s move and the temporary nature of the plan. ("This was very last minute, but we decided to try living in Ireland for a year[.]").

  In early 2010, Sloan had purchased a second home in Mill Valley so that E.S.
could live easily with both parents. Sloan and Murphy agreed to store Murphy's belongings there during Murphy's time in Ireland, and to rent, rather than sell, this home during her absence so that she would have a place to live when she returned. Murphy moved with E.S. to Ireland in August, and Sloan paid the rent on that home as well. Sloan filed for divorce in October 2010, and served Murphy shortly thereafter.   Over the next three years, E.S. attended school in Ireland, but returned to the United States each February, April, summer, Halloween and Thanksgiving to spend time with her father and his extended family. Sloan visited Ireland each December to spend Christmas with E.S. and Murphy. Throughout E.S.'s time in Ireland, she continued to receive her medical and dental care in California rather than in Ireland.    In April 2013, without Sloan's knowledge or consent, Murphy took E.S. out of school before the term had ended to visit her boyfriend in the Maldives.  She did not respond to Sloan's inquiries for five days. On May 1, Sloan wrote to Murphy asking when E.S. would return to Ireland to resume school, and stated, "If you do not tell me when you are going to get back to Ireland, I am going to start looking into getting her into school here in California for the remainder of the year, and I will come pick her up if I have to."  Sloan wrote to Murphy twice the following day, still attempting to find out when she planned to return to Ireland and sending her links to furnished rental units near E.S.'s school. Murphy's only response was to ask Sloan to review the draft of a paper she had written for graduate school. She did not return with E.S. to Ireland until May 7, 2013, by which time E.S. had missed nineteen days of school.

  Sloan arrived in Ireland on June 12, 2013, planning to celebrate E.S.'s birthday on June 13, depart on June 16, and return to Ireland on June 26 to bring E.S. back to California for the summer. On the day of Sloan's arrival, Murphy informed him that her landlord had terminated her lease, and that she was planning to leave again for Asia with E.S.   Sloan, concerned about E.S.'s absences from school, objected strenuously and begged Murphy to allow E.S. to finish her last two weeks of school in Ireland, offering to pay for a hotel. When Murphy refused to consider this option, and because Sloan's work commitments prevented him from remaining in Ireland until E.S.'s semester was complete two weeks later, Sloan took E.S. with him to the United States when he left Ireland on June 16. Murphy did not object, and told Sloan she was applying to graduate programs in England and the United States. The next day, Murphy flew to the Maldives, and spent much of the summer there and in Sri Lanka with her boyfriend.

    On June 21, 2013, Sloan told Murphy that he did not intend to return E.S. to Ireland, to which Murphy responded that if E.S. was going to live in the United States, Murphy would move next to him in Mill Valley. Murphy took no action to compel E.S.'s return to Ireland for nearly three months, until September 2013, when she filed the petition for return.   E.S. began third grade in Mill Valley in August 2013. In October 2013, the Marin County Superior Court entered a judgment dissolving the marriage, but left pending the state court action for purposes of issuing further orders regarding child custody, child support and spousal support.

    Murphy brought suit under the Hague Convention to compel E.S.'s return to Ireland, contending that Ireland was E.S.'s "habitual residence." The district court denied Murphy's petition. It determined with a "high degree of conviction" that "Murphy and Sloan never had the shared, settled intent to shift E.S.'s habitual residence from the United States to Ireland," and found that the spring of 2010 was the last time that Sloan and Murphy had a shared, settled intent, which was that E.S. reside in California. The court concluded that "E.S. was, at the time of the alleged wrongful retention, and now remains, a habitual resident of the United States."

The Ninth Circuit affirmed. It  observed that "  To determine a child's habitual residence, we "look for the last shared, settled intent of the parents." Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir.2013). Where a child has a "well-established habitual residence, simple consent to [her] presence in another forum is not usually enough to shift" the habitual residence to the new forum.  Mozes, 239 F.3d at 1081."Rather, the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration."  The parents' intent is not the only factor to consider. As  explained in Mozes, the question is "whether we can 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 life in which its life has developed."

The Court declined to accept Murphy’s argument that the Court should adopt a habitual residence standard that would focus on the subjective experiences of the child. It noted that  nearly every circuit has adopted its view of the proper standard for habitual residence, which takes into account the shared, settled intent of the parents and then asks whether there has been sufficient acclimatization of the child to trump this intent. (citing Darin v.  Olivero-Huffman, 746 F.3d 1, 11 (1st Cir.2014);  Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir.2005);  Karkkainen v. Kovalchuk, 445 F.3d 280, 292 (3d Cir.2006); Maxwell v. Maxwell, 588 F.3d 245, 253-54 (4th Cir.2009);  Larbie v. Larbie, 690 F.3d 295, 310-11 (5th Cir.2012);  Koch v. Koch, 450 F.3d 703, 717-18 (7th Cir.2006);  Ruiz v. Tenorio, 392 F.3d 1247, 1252-54 (11th Cir.2004) (per curiam).  But see  Robert v. Tesson, 507 F.3d 981, 991 (6th Cir.2007) (focusing "solely on the past experiences of the child, not the intentions of the parents").

    Murphy argued that in foreign courts, parental intent is "only one of the factors that may be relevant" to the habitual residence inquiry. She pointed to decisions of courts other countries which placed a greater emphasis on a child's surroundings or "actual centre of interests" in determining habitual residence. The Court held that in this  regard, its decision in Mozes, by which it was bound, was not inconsistent with recent decisions of international courts. It was not persuaded that there had been a worldwide sea change since Mozes, let alone a new worldwide consensus, that would warrant a suggestion to reconsider its decision.

The Ninth Circuit found that it was undisputed that before she left for Ireland, E.S.'s habitual residence was the United States. In concluding that "the parties never had a 'shared settled intent' that E.S.'s habitual residence would be Ireland," and that "E.S. never abandoned her habitual residence in the United States," the district court made a number of factual findings. These included the finding that the last "shared, settled intent regarding E.S.'s habitual residence" was in the spring of 2010 (United States); that "Murphy's move to Ireland with E.S. was intended as a 'trial period,' and that E.S. never abandoned her habitual residence in the United States"; that E.S. retained strong ties to community and family in California and elsewhere in the United States; that Murphy had no fixed residence in Ireland as of the date of the wrongful retention; that many of Murphy's and E.S.'s possessions remained in California; and that E.S. was continuing to spend part of the year in California with Sloan. The district court further noted that E.S. retained both U.S. and Irish citizenship; that Murphy had a California driver's license, but not an Irish one; and that Murphy had no permanent home or longer-term lease or means of support in Ireland, and no longer had any attachment to Ireland in terms of work or schooling after she completed her master's degree in October 2013.

  The Court noted that in cases in which parents "have shared a settled mutual intent that [a] stay [abroad] last indefinitely,""we can reasonably infer a mutual abandonment of the child's prior habitual residence." Mozes, 239 F.3d at 1077. But this was not such a case. This case fell in the alternative category identified in Mozes: one in which the "circumstances are such that, even though the exact length of the [child's] stay was left open to negotiation, the court is able to find no settled mutual intent from which abandonment can be inferred." There was never any discussion, let alone agreement, that the stay abroad would be indefinite. As the district court expressly found, the move to Ireland was "intended as a 'trial period,' " not as a permanent relocation. The facts did not evince a shared, settled intent to abandon the United States as E.S.'s residence. Instead, they pointed  to the opposite conclusion. Sloan never intended that the stay in Ireland be anything but a "trial period." Murphy, moreover, did not have a settled intent to remain in Ireland, either alone or with E.S., as in the last two years she had applied or had considered applying to graduate schools outside of Ireland, including in the United States, and had not enrolled E.S. in school in Ireland for the fall of 2013. When Sloan took E.S. back to California and told Murphy that E.S. would be enrolling in school in Mill Valley, Murphy did not object, and instead stated "th[at] she was applying to graduate programs."Murphy told Sloan on June 21, 2013 that if E.S. was moving back to the United States, she would move next to him in Mill Valley. The Ninth Circuit found that the district court's factual findings were not clearly erroneous, nor do it disagree with its conclusion that E.S. never abandoned her habitual residence in the United States.

The Ninth Circuit noted that shared parental intent is not always dispositive. Certain circumstances related to a child's residence and socialization in another country, a process called "acclimatization", may change the calculus. To infer abandonment of a habitual residence by acclimatization, the "objective facts [must] point unequivocally to [the child's] ordinary or habitual residence being in [the new country]." Mozes, 239 F.3d at 1081. It has cautioned that "courts should be slow to infer from ... contacts [with the new country] that an earlier habitual residence has been abandoned,", both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purposes of the Convention.
Determinations regarding acclimatization are highly fact-bound, and there is no bright line as to the temporal limits for such adjustment. Nor should "acclimatization ... be confused with acculturation."  It agreed with the  district court that the facts here did not point "unequivocally" to the conclusion that Ireland had become E.S.'s habitual residence. Although E.S. developed strong ties to Ireland through school, extracurricular activities, and contacts with Murphy's family, she also maintained broad and deep "family, cultural, and developmental ties to the United States,"
spent Halloween, Thanksgiving, Easter and summers in the United States while living in Ireland, "maintain[ed] a relationship with Sloan's extended family,""maintain[ed] a community in Mill Valley" and "receive[d] her dental and medical care in California" while living overseas. The district court characterized her ties to the United States as "robust." In light of these substantial ties to the United States and our traditional caution about inferring abandonment, E.S.'s time in Ireland, though significant, did not "unequivocally" establish that she had abandoned the United States as her habitual residence. It agreed with the district court's finding that E.S.'s attachments to Ireland "did not shift the locus of [E.S.'s] development[,] and ... any acclimatization did not overcome the absence of a shared settled intention by the parents to abandon the United States as a habitual residence."

Ermani v Vittori, --- F.3d ----, 2014 WL 3056360 (C.A.2) [Italy] [Grave Risk of Harm] [Petition Denied]

In Ermani v Vittori, --- F.3d ----, 2014 WL 3056360 (C.A.2) the Second Circuit held that the psychological and physical harm arising from separating a child from autism therapy  can be sufficiently grave to trigger the Convention’s exceptions, and affirmed the denial of the appellant's petition. It also held as a matter of first impression, the district court's decision to  deny the petition without prejudice to renewal was error, and amended the judgment to deny the petition with prejudice.

Emiliano Ermini and Viviana Vittori were Italian citizens. They were married in 2011. The couple had two children: Emanuele, who was 10, and Daniele, who was 9. Daniele was autistic. In the midst of a  custody dispute, Ermini petitioned the district court pursuant to the Hague Convention seeking the return to Italy of his two sons, who were then, and today remain, in the United States.  Ermini filed his petition in August of 2012, and the district court conducted a bench trial in January of 2013. The district court found that the family had moved to the United States in August of 2011 in connection with its longstanding efforts to find appropriate treatment for Daniele, who had been diagnosed with autism in March of 2008, and the couple sought unsuccessfully to find adequate Applied Behavioral Analysis ("ABA") therapy for Daniele in Italy. In Spring of 2010, in Italy, they met Dr. Giuseppina Feingold, an Italian-speaking doctor with a practice in Suffern, New York.  In August of 2010, they traveled to New York so that Dr. Feingold could more fully assess and begin treating Daniele.  The parents were impressed with the treatment options presented by Dr. Feingold, and began to plan a move to Suffern, at first for a period of two-three years, but with the potential of a permanent relocation in mind, depending on the success of Daniele's treatment.  The family returned to New York in August of 2011, and promptly signed a one-year lease on a house.  The children were enrolled in public schools, and Daniele's therapy began soon after. The parents put their home in Italy on the market, prepared to open a business in the United States, and made arrangements to send their belongings here.  Ermini, who had remained employed in Italy, traveled back and forth between the United States and Italy. During a December of 2011 return to America, a "violent altercation" occurred, with Ermini physically abusing Vittori in the kitchen of their Suffern, New York home. During this altercation Ermini had, among other acts, hit Vittori's head against a kitchen cabinet, and attempted to "suffocate" and "strangle" her.  The district court determined this incident was part of a history of physical violence by Ermini.  The court found that Ermini "expresses anger verbally and physically," had hit Vittori at least ten times during the course of their relationship, and was "in the habit of striking the children."   In response to the December of 2011 incident,  Vittori obtained a temporary order of protection from the Suffern Court of Justice for herself and the children . The order, among other things, granted her temporary custody of the children through May 9, 2012. 

    Ermini returned to Italy and instituted divorce proceedings.  Vittori went
back to Italy for those proceedings in April of 2012, by which time the children's
American visas had expired.   In September of 2012, Ermini petitioned an Italian court in Velletri for an order directing Vittori to return with the children to Italy.  The court in
Velletri granted Ermini's petition, ordering Vittori to return with the children, and making various rulings granting shared parental authority between Ermini and Vittori and assigning visitation rights.   In April of 2013 the Court of Appeals in Rome issued an order vacating several provisions of the Velletri court's order. The Court of Appeals granted Vittori exclusive custody of the children, did not require her to return to Italy with the children, and explicitly fashioned its order to comport with the orders of protection issued in the United States arising from the December of 2011 domestic abuse incident.  

The district court found that Daniele had "significantly progressed" with his therapy in the United States.  He was engaged in a Comprehensive Application of Behavioral Analysis to Schooling ("CABAS") program in Stony Point, New York, which, according to Vittori's expert, Dr. Carole Fiorile, offered the best ABA curriculum then available to autistic children. The program involved one-on-one instruction with an educational team, including a special educational teacher, an occupational therapist, a speech and language therapist, several classroom assistants, and a full-time one-on-one teaching assistant.   The district court noted that Dr. Fiorile had stated that Daniele required such a program to continue to make meaningful progress in, among other things, cognition, language, and social and emotional skills. Dr. Fiorile had also testified that while the United States has over 4,000 board certified ABA practitioners, there were, to her knowledge, fewer than twenty in Italy.   The district court, weighing Dr. Fiorile's opinion about the CABAS program, concluded that separating [Daniele] from  the CABAS program ... would put him in an intolerable situation due to the grave  risk of deterioration of his condition and denial of needed rehabilitation. The district court found that Daniele and Emanuele have a close, loving relationship, and that the children and Vittori had overstayed their visas and had applications for renewal pending. The district court held that Ermini had proved by a preponderance of the evidence: (1) that the children were habitual residents of Italy, and were being retained in the United States by Vittori; (2) that the retention was in breach of Ermini's custody rights under the law of Italy; and (3) that Ermini was exercising those rights at the time of the children's retention in the United States. The district court ruled in Vittori's favor that return to Italy posed a "grave risk" of harm to Daniele, pursuant to Hague Convention, Article 13(b), which precludes repatriation of a child where there "is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The record, according to the district court, established that, because Daniele was severely autistic, he would face a grave risk of harm if he had to return to Italy, as the return would "severely disrupt and impair his development. The court further concluded that Daniele would face "significant regression" if his CABAS program was interrupted and held that the predicted deterioration in Daniele's cognition, social skills and self-care if Daniele was separated from the CABAS program ... constitutes psychological and physical harm sufficient to establish the 'grave risk of harm' affirmative defense . The court also determined that because Emanuele and Daniele had a loving and close relationship, separation would be harmful to both siblings, and that avoiding such a separation met the requirements of the Hague Convention.  The court denied Ermini's petition for return to Italy as to both children, but did so "without prejudice to renewal if [Daniele] is no longer able
to participate in the CABAS program and the Italian court system issues a final
order requiring the return of the children to Italy."

The Second Circuit observed that the district court found that the children's habitual residence was Italy, since the parents' last shared intention was to move the family to the United States only for a period of two-three years, and potentially to stay permanently if Daniele's therapy was successful. The Court of Appeals  stressed that the period of time of a move is not the only relevant factor in the analysis. It noted that  sister signatories have clarified that a habitual residence may be established even when a move is for a "limited period" and indeed "indefinit[e]." It emphasized that the time period attached to a move is but one factor in determining, in a fact-intensive manner, what the settled intent among the parents was in making the move. It believed that the issue at hand was, at the very least, a closer call than it was framed as being by the district court. In this case, the family's move, though indefinite, was not "of a trial nature" or for a "trial period" as in Gitter, nor was akin to a summer sojourn; the move indeed evinces a good degree of "settled purpose" and continuity. As the district court found, Ermini and Vittori leased a house in the United States and put their house in Italy on the market; enrolled the children in school and extracurricular activities in the United States; planned to open a business in the United States; prepared to move all of their belongings to the United States; and shifted Daniele's all-important medical care and treatment to the United States.  This was a move shared in the parents' minds not only as one of duration, stretching into years, but also formed with an understanding that the duration could become permanent if Daniele's treatment was succeeding.  The facts found by the district court established, at a minimum, that the family intended to shift the locus of their family life to the United States for a span of years. And, given these circumstances, the Court stated “...we are left uncomfortable with the district court's conclusion that the family's habitual residence did not change.” Nor, was it clear that Vittori breached Ermini's custody rights. However, because other grounds existed to affirm the district court's denial of Ermini's petition, it did not determine this issue.
                                       
           The Second Circuit agreed with the district court that the risk of harm Daniele faced if removed from his therapy and returned to Italy was grave enough to meet the Hague Convention's standards. It also held, contrary to the district court, that
Ermini's history of domestic violence towards Vittori and the children was itself
sufficient to establish the Hague Convention's "grave risk" of harm defense. The Court observed that it has stressed that a grave risk of harm exists when repatriation would make the child face a real risk of being hurt, physically or psychologically. The potential harm "must be severe," and there must be a "probability that the harm will materialize." Souratgar v. Lee, 720 F.3d 96,103 (2d Cir.2013). Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a "sustained pattern of physical abuse and/or a propensity for violent abuse." . And it had  concluded that a "grave risk" of harm from abuse had been established where the petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question. Spousal violence, in certain circumstances, can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child. It has allso been careful to note that sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.

    The district court found that Ermini "expresse[d] anger verbally and physically," and that he struck Vittori and frequently hit the children. The district court determined that Ermini was "in the habit of striking the children." The district court construed some of the hitting as disciplinary, but it did not, and could not, conclude that the hitting was "sporadic or isolated." The court also found that Vittori testified credibly that Ermini "had hit her at least 10 times during the course of their relationship."  On the question of abuse, the district court's findings about the "violent altercation" in the kitchen of their Suffern residence on December 28, 2011 were particularly troubling.  The court credited both Vittori's account of having her head "shoved" into the kitchen cabinets while Ermini attempted to "suffocate" and "strangle" her, and Emanuele's parallel account of the events, which both he and Daniele observed. The district court also credited Emanuele's testimony that he generally feared his father.  The Second Circuit believed that these findings by the district court manifestly established that Ermini engaged in a "sustained pattern of physical abuse," directed at Vittori and the children: Vittori was repeatedly struck; as were the children, whom Ermini was "in the habit" of hitting; and Emanuele testified to being fearful of his father on the basis of this physical and verbal abuse. These findings evinced a "propensity" for violence and physical abuse and a resulting fear in the children. It therefore held that the facts found by the district court were sufficient to meet the Hague Convention's requirement, by clear and convincing evidence, that the children faced a "grave risk" of harm because of Ermini's physical abuse.

   The district court also held that Daniele faced a grave risk of harm if removed from his current therapy and returned to Italy.  In light of its factual findings it held that the district court's conclusion of law was correct. The Court noted that Article 13(b) explicitly lists "psychological" harm and "physical" harm as appropriate harms for triggering the Convention's affirmative defenses, both of which are implicated by a developmental disorder such as autism. And it held that the facts as found by the district court lend themselves straightforwardly to the conclusion that the risk of harm was grave.   First, the district court's findings established there was a probability that the harm would materialize.  Second, the court's finding that Daniele would lose the ability to develop cognitive, emotional, and relational skills, and potentially lead an independent life, if removed from his current therapy and repatriated, establishes harm of a "severe" magnitude manifestly sufficient to satisfy the exception. Considering the unrebutted testimony before the district court concerning the risk of harm Daniele faced if he were returned to Italy, there was no reason to disturb its factual findings.   Moreover, in light of the children's close relationship to each other, and, significantly, the conclusion it reached with respect to abuse, it determined as well that it was not error for the district court to decline to separate the children.

The Second Circuit observed that by denying the petition without prejudice to renewal, the district court allowed the parties to call upon future events and engage in prospective modifications in light of changed facts in precisely the way the Convention intended to prohibit. As the Explanatory Report shows, the Convention is concerned with events at a particular moment: it either requires return or, in light of the risks of harm or other circumstances, it does not. Once a determination properly applying the Convention to the facts at hand has been made, all other issues leave the realm of the treaty's domain. The Convention is not, and cannot be, a treaty to enforce
future foreign custody orders, nor to predict future harms or their dissipation. It concluded that the Convention did not permit denial of the petition without prejudice.