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(Cite as: 2009 WL 2169857 (M.D.Fla.))
Only the Westlaw citation is currently available.
United States District Court, M.D. Florida,
Tampa Division.
In the Matter of AGO, Petitioner,
v.
Michael ODU, Respondent.
No. 8:09-cv-976-T-17TBM.
July 20, 2009.
ORDER
ELIZABETH A. KOVACHEVICH, District Judge.
*1 This cause is before the Court on:
Dkt. 32 Report and Recommendation
The Court referred Petitioner's Motion for a Temporary Restraining Order
and Order
to Show Cause Why a Preliminary Injunction Should Not Be Entered Against
Respondent and Incorporated Memorandum of Law (Dkt.3) and Respondent's
Motion to Dismiss for Lack of Subject Matter Jurisdiction (Dkt.13) to
the assigned
Magistrate judge to conduct a hearing and for a Report and
Recommendation.
Magistrate Judge McCoun conducted a hearing on June 29, 2009, and has
issued a
Report and Recommendation in which is recommended that Petitioner's and
Respondent's motions should be denied
The Court has independently reviewed the pleadings. No objections to the
Report
and Recommendation have been filed. After consideration, the Court
adopts the
Report and Recommendation, and incorporates it herein by reference.
Accordingly,
it is
ORDERED that the Report and Recommendation (Dkt.32) is adopted and
incorporated
by
reference. Respondent's Motion to Dismiss for Lack of Subject Matter
Jurisdiction
(Dkt.13) is denied. Petitioner's Motion for a Temporary Restraining
Order and
Order to Show Cause Why a Preliminary Injunction Should Not Be Entered
Against
Respondent and Incorporated Memorandum of Law (Dkt.3) is denied. The
parties shall
have twenty (20) days from this date to notify the Court as to what
other issues
remain to be addressed in this case and to determine when they will be
prepared to
submit a Case Management Report for this case.
DONE and ORDERED.
REPORT AND RECOMMENDATION
THOMAS B. McCOUN III, United States Magistrate Judge.
THIS MATTER is before the court on referral for a Report and
Recommendation on
Petitioner's Motion for a Temporary Restraining Order and Order to Show
Cause Why
a Preliminary Injunction Should Not Be Entered Against Respondent and
Incorporated
Memorandum of Law (Doc. 3) and Respondent's Motion to Dismiss for Lack
of Subject
Matter Jurisdiction (Doc. 13).FN1
FN1. Additionally, the Petitioner filed a Motion in Limine to exclude
the
testimony of the minor, AGO (Doc. 19) to which the Respondent filed his
memorandum in opposition (Doc. 20). For reasons set forth below, the
motion
is denied.
I.
This action was instituted by the filing of a Petition for return of
minor child
by the child's mother, Giovanna Gianesini ("Petitioner" or "mother"),
pursuant to
the Convention on the Civil Aspects of Child Abduction ("Hague
Convention"),
T.I.A.S. No. 11,670, and the International Child Abduction Remedies Act
("ICARA"),
42 U.S.C. s 11601 et seq. (Doc. 1). Petitioner asserts that she and
Respondent,
Michael Odu ("Respondent" or "father"), are the parents of the minor
child, AGO
("AGO" or "child") who was born September 21, 1994, in Daytona Beach,
Florida.FN2
Petitioner, an Italian citizen, alleges that since 2001, AGO's habitual
residence
has been with her in Vicenza, Italy. She alleges that Respondent refused
to allow
AGO to fly home to Italy on August 30, 2008, and that he has been
wrongfully
retained by Respondent since that date.
FN2. At the hearing, the child was referred to as "Andre."
In response, the father, an American citizen, residing in the Middle
District of
Florida, filed a motion challenging the court's subject matter
jurisdiction. (Doc.
13).FN3 Additionally, he filed an Answer and Affirmative Defenses
wherein he
raises four defenses. (Doc. 18). He asserts that AGO was not wrongfully
retained
because the United States is his habitual residence and moreover, the
mother
consented to his remaining in this country. Alternatively, Respondent
argues that
AGO has reached an age of maturity and desires to remain in the United
States with
his father. Lastly, he argues that the child is settled and acclimated
in the
United States, and the mother has unduly delayed in filing her Petition.
FN3. By this motion to dismiss, Respondent essentially argues that
because
the child's habitual residence is in the United States, the court is
without
jurisdiction. However, the motion (Doc. 13) is appropriately denied as
the
court has jurisdiction over the alleged wrongful removal/retention claim
pursuant to 42 U.S.C. s 11603 ("The courts of the States and the United
States district courts shall have concurrent original jurisdiction of
actions arising under the Convention.").
*2 An evidentiary hearing was conducted June 29, 2009. The parties
testified as
did the child.FN4 Following the hearing, the parties submitted proposed
findings
and conclusions. See (Docs.30-31). In a nutshell, Petitioner claims that
Italy is
the habitual residence of AGO because he has attended school at least
70% of the
time in Italy excluding the 2008-2009 school year when he was in school
in Florida
after being wrongfully retained. In Italy are his brother and sister
("the twins")
with whom he is close; friends, cousins, and grandparents; and an active
life
including sports activities such as basketball. After completing middle
school
there, he was scheduled to start high school in Italy before he was
wrongfully
retained. While the child regularly visited Respondent in Florida, his
home is in
Italy. By her contention, the child was wrongfully detained by the
father in
Florida at the end of his summer visit in August 2008.
FN4. Petitioner submitted a composite exhibit containing copies of
matters
purportedly submitted to authorities under the Convention and an English
translation of a September 29, 2008 decree from an Italian court
granting
custody to Petitioner. There appears no question that the matters
submitted
to the authorities in Italy and forwarded to the U.S. under the
Convention
are admissible under the Convention. The English translation of the
September 2008 decree was not part of those documents. It was filed with
the
court June 26, 2009, but was subsequently stricken for Petitioner's
failure
to comply with the redaction requirements of Fed.R.Civ.P. 5.2(a). It is
resubmitted as part of Petitioner's Exhibit 4A. No issue has been raised
as
to the authenticity or accuracy of the translation. Notably, if the
Italian
court(s) entered additional orders on this matter thereafter, they have
not
been submitted for this court's consideration.
By her testimony, she and the Respondent lived together as husband and
wife in the
United States from 1993 to 2000 but were never lawfully married. Their
child, AGO,
was born in Daytona Beach, Florida, in 1994. While here, she earned a
bachelors
and a masters degree from the University of Central Florida. In 2000,
she moved
back to Italy with AGO, who was six years old at the time, because her
student
visa had expired. She is studying for her Ph.D. and is certified as a
counselor in
Italy. In May 2001, she gave birth in Italy to AGO's siblings ("the
twins"). They
reside in Schio, a town near Vincenza, Italy. She testified that between
2001 and
2006, she and the Respondent regularly agreed to a rotating custody
arrangement
without problems. She claims the agreed plan was for the children to
spend three
months during the summer with the Respondent in the United States and
nine months
with her in Italy. She testified that when AGO was older they followed
this plan
where he would spend the summer with the father. However, when
questioned on cross
examination, she could not be specific as to the actual dates and times
that AGO
lived with her in Italy versus living with the Respondent in Florida,
and upon
further questioning acknowledged that AGO may have in some years lived
up to, but
no more than, a total of six months out of the year in the United
States.
From September 2007 through July 13, 2008, AGO lived continuously with
his family
in Italy and attended the 2007-2008 school year (his last year of middle
school)
in Italy. She agreed to send AGO to visit his father for summer vacation
in July
2008, with the intention that he would start high school in Italy in the
fall of
2008. She testified that AGO had chosen and enrolled, prior to leaving
for
Florida, in an Italian scientific high school for the 2008-2009 school
year. She
and Respondent agreed that when he finished the 2007-2008 school year,
he would
again travel to visit the Respondent and they agreed upon a return date
in August
2008. An e-mail she received from the father indicated AGO would travel
to Florida
on July 13, 2008, and return to Italy August 29, 2008.FN5 On each prior
occasion
that the children visited with the father, the children had been
returned to her.
Thus, she testified that she had no reason to believe that AGO would not
be
returned per the arrangements set forth in the e-mail from Respondent.
FN5. The June 11, 2008 e-mail indicated that the Respondent had arranged
for
airline tickets for the children leaving Venice, Italy on July 13, 2008
with
a return flight from Tampa, Florida on August 29, 2008. An e-mail a week
later suggests that they were still addressing travel dates for the
"vacation" and that the Respondent planned to fly to Italy so he could
accompany the children back to Tampa. Pet'r Exh. 4A.
*3 She received an August 7, 2008, e-mail from Respondent which
indicated that he
intended to keep the children in Florida and had enrolled them in
school.
Ostensibly this was so he could arrange for the twins to obtain
citizenship.FN6
This decision was unilaterally made by the Respondent. Petitioner called
Respondent to tell him the children should be returned to her. School in
Florida
started August 18, 2008. AGO was enrolled in the last year of middle
school, and
the twins were enrolled in first grade, one year behind where they would
have been
enrolled in Italy. She objected to the decision to enroll them in school
in
Florida. She states that she contacted the school to find out how her
children
could be enrolled without her permission. She also contacted the
"Central
Authority," an attorney, and pursued action under the Hague Convention.
She claims
that she contacted the U.S. State Department to ask for its assistance
and that it
sent Respondent a letter, but he still refused to return the children.
FN6. The e-mail, dated August 7, 2008 is also part of Petitioner's Exh.
4A.
Petitioner came to Florida in September 2008. She claims her purpose for
coming
was to retrieve the children and bring them back to Italy although she
acknowledged that she represented to the Respondent only that her
purpose for her
visit was just to see the children. While in Florida, she stayed at
Respondent's
home and accompanied the twins to their school. During her visit, she
attempted to
obtain the voluntary return of the children, and she and the Respondent
argued
about this. The Respondent agreed to let her bring the twins back to
Italy, but
refused as to AGO. After approximately one week, she returned to Italy
with the
twins.
She claims she and AGO discussed his return during this visit and tried
to get him
to return home. Prior to this visit, he had evidenced his desire to
return home in
text messages to her and his friends indicating he missed them. She
claims that
although she tried multiple times to get Respondent to agree to return
the minor
child, she never specifically asked AGO to come back to Italy with her.
Petitioner claims she initiated custody proceedings in Italy before
Respondent
picked up the kids to travel that summer. She testified that she and the
Respondent had previously discussed custody arrangements, and she had
wanted him
to sign a joint custody agreement for filing in the United States, but
Respondent
would not agree. She wanted to regulate all the traveling back and forth
and she
wanted child support. As noted above, she entered into evidence an
English
translation of a September 26, 2008, ex parte decree from the Juvenile
Court in
Venice-Mestre, Italy, which purports to grant her sole custody of AGO
and the
twins, financial support, with restricted rights of visitation in Italy
for the
father. (Pet'r Exh. 4A). She testified that a copy of this was sent to
Respondent,
but he has not abided by it.
In February 2009, Petitioner again traveled to Florida to retrieve AGO.
Before the
trip, she claims that she contacted the authorities in Italy and the
United
States, and she was advised that she could not take AGO back to Italy
without the
father's consent or it could be considered a re-abduction. She had only
limited
access to the child on this visit, but at some point she gave him his
U.S.
Passport and a plane ticket for his return with her to Italy. She denies
asking
the child specifically to do so, but she did attempt to get the
Respondent to
agree to this and he refused. AGO did not return with her.
*4 She adamantly denies ever consenting to allow the child to stay here
after
August 29, 2008.
By Petitioner's account, AGO is intelligent, performs well in school,
and has
received good grades. He has family and friends in Italy. She described
him as of
average maturity for a 14-year old.FN7 She does not believe that AGO
should have
to choose where to stay.
FN7. Petitioner's counsel conceded that the mother was not contesting
AGO's
level of maturity as it relates to his testifying, but rather argues
that
because he has been living consistently with the father since July 13,
2008,
and has had very limited contact with the mother since September 2008,
that
AGO has been subjected to influence or manipulation by Respondent and as
such, any testimony by AGO is tainted and should not be accepted.
On cross, Petitioner had difficulty remembering dates, but she conceded
that the
child rotated between living in Italy and the U.S. She admitted a
meeting in 2007
between Respondent and her brother, Marco, an attorney in Italy. She
denied that
it was there decided that the child would be allowed to choose where he
would
attend high school. Her visit to Florida in September 2008 was prompted
by her
concern for the children. She went to school with the twins but not AGO.
She
insisted that while she did not ask AGO to return with her, she did ask
the
Respondent repeatedly. She claims she was warned by Central Authorities
not to use
force to recover AGO. She admitted a text message to AGO in November
2008 which
stated "... You are done with me, you never treated me right and not
even your
brothers. You make your choice and we make ours...." (Resp.Exh. 1).
However, she
denied sending other similar text messages to her son. When she returned
in
February 2009, she admitted she spent some time alone with AGO, but she
reiterated
that she did not ask him to return with her; she only asked Respondent.
The Respondent introduced evidence of school records from Hillsborough
County for
2002 through 2009. (Resp.Exh. 2). These records are not disputed and
reflect that
AGO attended elementary school in Hillsborough County from August 7,
2002 through
November 23, 2004; middle school in August through November 2005 and
February
through May 2007; and high school from August 2008 through May 2009. Id.
In
response to the court's question, Petitioner acknowledged that they want
AGO to be
bi-lingual, which is why he was sent to school here. The child is a good
student,
he gets excellent grades, he suffers no mental deficiencies. He is of
average
maturity. The meeting with her brother was about money-child support.
Mr. Odu testified that he has lived in Brandon, Florida since August
2002. He and
Petitioner lived together as a couple from 1993 to 2002. In 2001,
Petitioner moved
to Italy for the birth of the twins and AGO stayed with Respondent in
Florida.
Respondent traveled to Italy for the birth of the twins in May 2001.
Respondent
and AGO returned to the U.S. so he could start second grade. In October
2001, he
returned to Italy until he finished second grade in May 2002. From May
to December
2002, AGO lived with Respondent in Florida. By his account, Respondent
would
travel each May to Italy for the twins' birthday, stay through Memorial
weekend,
and return with all the children to Florida. While the twins would
typically stay
only for the summer, AGO would spend up to half of the school year with
him in
Florida. Respondent testified that 2007 was different because in
February 2007, he
received a message from Petitioner telling him to come get AGO because
she was
done with him. That year, AGO spent February through July in Florida.
AGO got a
dog and decided he did not want to go back to Italy. When Respondent
traveled to
Italy in May 2007 for the twins' birthday, AGO did not want to go and
instead
stayed in Florida with Respondent's brother. In the summer of 2007,
Petitioner and
Respondent vacationed together with their three children in the U.S. and
then to
Greece. Respondent testified that in August of that year, Petitioner
would not let
AGO return to the U.S. She wanted him to complete middle school in
Italy. They
argued over where AGO should go to school during 2007-2008. The
Petitioner wanted
AGO to finish his middle school year in Italy. Respondent testified that
the child
had struggled each year transitioning back into school in Italy under
the existing
arrangement, and he wanted AGO to go to school in Florida where he did
well.
Petitioner and Respondent agreed to meet with a third person to discuss
the
situation, and Petitioner's brother, an Italian lawyer, agreed to act as
mediator.
According to Respondent, it was agreed that AGO would attend the
2007-2008 school
year in Italy, following which the child could then decide where he
wanted to
attend high school. Additionally, an agreement was reached regarding
child support
whereby Respondent would pay one thousand Euro per month to Petitioner.
Respondent
acknowledged that in the year immediately preceding AGO's trip to
Florida in July
2008, AGO lived continuously in Italy, but that was as a result of the
agreement
reached at the meeting with Petitioner's brother. He testified that the
agreement
was communicated to AGO.
*5 Shortly after coming to Florida in July 2008, AGO made the decision
to stay in
Florida and called his mother and grandmother to communicate that. While
Respondent would characterize AGO's habitual residence from 2002 to 2006
as
"rotating," he urges that since 2007, the United States is AGO's
habitual
residence. Specifically, since February 2007, AGO considered Florida his
home.
After coming in the summer 2008, AGO belonged to the Brandon YMCA where
he
attends
leadership meetings and plays basketball. AGO attends church and is
involved in
community activities, such as the Leukemia Walk, with his father. He is
a member
of the honor society and the math club. AGO is settled in the United
States and
has friendships that were in place before the summer of 2008. AGO now
has two dogs
in Florida and wants to become a veterinarian when he gets older.
Respondent testified that AGO had difficulty socially in Italy, was
teased, and
had problems adjusting to school. He claims that the eleven months AGO
spent in
Italy during the 2007-2008 school year were terrible; he was sick for
several
months and could not wait to return to Florida. When AGO returned to
Florida in
the summer of 2008, he was expecting to stay as he brought more of his
personal
belongings than he had in the past. He had a 3.9 grade point average for
his
freshman year (2008-2009) which he attended in Florida.
Respondent described AGO as suffering from a congenital condition
(imperforated
anus) which causes him some problems with his clothing, but he is
otherwise fine
socially. In Italy, he was teased about his condition. He is smart,
analytical,
logical, reasonable, and he has feelings. He is on the same maturity
level as his
peers. He has friends in the community.
Respondent testified that when Petitioner came to Florida in September
2008, she
came to help the children transition to school. Flying her to Florida
from Italy
was a surprise birthday present for AGO. She spoke several times with
AGO during
her trip. Respondent claims he only wants to do what AGO wants in this
matter. If
AGO had indicated he wished to return to Italy, Respondent would not
have
prevented this. AGO could have returned to Italy with her if he had
wanted, but he
chose to remain in Florida. By his account, Petitioner sought to go to a
Ph.D.
program here, but that did not work out.
When the mother returned to Florida in February 2009, she said that she
wanted AGO
to go back with her to Italy. He arranged to have AGO and his mother
meet as often
as he could. After one meeting, AGO was provided an airplane ticket to
Italy and
his U.S. passport.
He dates AGO's habitual residence in the U.S. to February 2007, when his
mother
said to come pick him up despite his returning to Italy for the
2007-2008 school
year.
On cross-examination, he conceded that the agreement for AGO to be able
to choose
which school he would attend for high school was never reduced to
writing. He also
conceded that during the 2007-2008 school year, AGO did not visit in the
U.S. He
agreed that AGO had friends and family in Italy and he played sports in
Italy, but
he urges that it is not the same as in the U.S. He denies that AGO did
as well in
school in Italy. Respondent believes AGO transitioned better in school
when he
came to the U.S. Respondent was made aware of the custody proceedings in
Italy,
and he participated in writing but not in person. After AGO started to
complain
about his mother's text messages to him, Respondent has had his son
speak English
with his mother. He insists that he and Petitioner agreed that AGO would
complete
middle school in Italy and then AGO could choose where he would attend
high
school.
*6 As noted above, Petitioner also filed a motion in limine to prohibit
testimony
from the minor child. (Doc. 29). At the hearing, the court conducted an
informal
hearing in Chambers with AGO, counsel for both parties, and a court
reporter.
Based on the discussion with the minor child, the court was satisfied
that AGO was
capable of understanding the oath and evidenced the intellect and
maturity to
warrant consideration of his views. Petitioner argued only that the
child has been
subjected to undue influence by the father for nearly a year, and thus
his
testimony is tainted. In denying the motion, the court indicated it was
necessary
to consider the whole of his testimony before deciding the weight to be
given to
the same. Accordingly, the motion in limine was denied, and AGO was
permitted to
testify.
AGO testified that he has lived in Brandon, Florida for the past four
years. He
estimated that he spent approximately half of the year in Florida and
half of the
year in Italy during middle school. In 2007, he was in Florida more than
half of
the year, but was in Italy for the 2007-2008 school year. He testified
that he was
not present during the meeting in 2007, between his parents and his
Uncle Marco,
but that he spoke to them about it and based on the communications from
his uncle,
he was under the impression that he would be given a choice where he
would attend
high school. He testified that he has not heard his mother state that he
would
have that choice, but he believed she would let him choose. According to
AGO, he
made up his mind to stay in the U.S. even before he came here in July
2008. He did
not tell his mother this, and in fact he told her he would return in
order to get
her to agree to let him come to the U.S. His father's neighborhood is
nice; he has
friends there; and there are places to play.
Since the Fall of 2008, AGO exchanged e-mails and text messages with his
mother.
The mother has accused him of betraying her and the twins' trust. He
stopped
calling her on the telephone approximately a month ago because she was
not
listening to him. He testified that she has tried several times to
convince him to
come to Italy. He has told her that he wants to stay here. He described
her visit
in September 2008 as "tense." She did not understand why he wanted to
stay here.
He did not go back with the twins because he wanted to stay here. The
visit in
February 2009 was very "uncomfortable." She did not ask him to return,
but they
spoke about why he wanted to stay, the pros and cons of the U.S. and
Italy. He
concluded by telling her he wanted to stay in the U.S. His father has
never asked
him to stay, nor has his father told him he did not want AGO to return
to Italy.
AGO testified that he is more comfortable here in the United States; has
more
space; and his mom does not understand him that well. He chose his words
carefully
in testifying that he is not choosing a parent, but rather he chooses to
live in
the United States over Italy.
*7 On cross-examination, he said he never heard his mother say he would
have a
choice about where he would go to high school. This is what he heard his
uncle
say. When asked about the eleven months he was in Italy preceding the
summer of
2008, he stated he attended school there and played basketball part of
the time.
He failed a class. He has cousins and family in Italy and testified that
he misses
them. He lived in the same house there for several years. For schooling
purposes,
he advanced year to year in Italy. It was not until September 2008, that
AGO sent
his mother a text message telling her that he wanted to stay in the
United States.
He had previously made the decision. At no time did he want to pick a
parent, but
he made the decision to stay in the U.S. He is aware of the custody
decree in
Italy. He has not gone home because he did not think he could return to
the U.S.
He misses the twins and his friends in Italy. Before coming in July
2008, he had
signed up for school in Italy. Based on a series of text messages from
his mother,
AGO believed that she eventually agreed with him staying in the U.S.,
and that
this was over.
II.
A.
The Hague Convention on the Civil Aspects of International Child
Abduction,
T.I.A.S. No. 11,670,FN8 to which Italy and the United States are
signatories, was
adopted in 1980 "to protect children internationally from the harmful
effects of
their wrongful removal or retention and to establish procedures to
ensure their
prompt return to the State of their habitual residence." The rationale
underlying
the Convention is that a child's country of habitual residence is the
place where
decisions relating to custody and access are best decided. Bocquet v.
Ouzid, 225
F.Supp.2d 1337, 1340 (S.D.Fla.2002). The United States implemented the
Convention
through the International Child Abduction Remedies Act, 42 U.S.C. ss
11601 et seq.
, which entitles a person whose child has been wrongfully removed to, or
wrongfully retained in, the United States to petition a federal court to
order the
child returned.FN9 42 U.S.C. s 11603(b). Courts considering an ICARA
petition have
jurisdiction to decide the merits only of the wrongful removal or
retention claim,
not of any underlying custody dispute. Lops v. Lops, 140 F.3d 927, 936
(11th
Cir.1998); see also Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th
Cir.1996).
FN8. The Convention is reprinted in 51 Fed.Reg. 10,494 (Mar. 26, 1986).
FN9. The United States ratified the Convention in November 1986 and, in
November 1988, President Reagan issued a Proclamation that the
Convention
had entered into force for the United States on July 1, 1988, and that
it
must be observed and fulfilled in good faith by the United States and
its
citizens thereafter. ICARA was enacted during the same year to implement
the
Convention.
The Petitioner bears the initial burden of proving by a preponderance of
the
evidence "that the child has been wrongfully removed or retained within
the
meaning of the Convention." 42 U.S.C. s 11603(e)(1)(A); see also Ruiz v.
Tenorio,
392 F.3d 1247, 1251 (11th Cir.2004). To establish a case of wrongful
removal or
retention, the Petitioner must establish by the preponderance of the
evidence
that: (1) AGO was a "habitual resident" of Italy immediately before the
date
retained by the Respondent; (2) the retention was in breach of the
Petitioner's
custody rights under the law of Italy; (3) Petitioner had been actually
exercising
or would have been exercising custody rights concerning AGO at the time
of AGO's
retention; and (4) the child has not attained the age of 16. See
Convention, art.
3, T.I.A.S. No. 11,670 at 2; Ruiz, 392 F.3d at 1251; Lops, 140 F.3d at
936
(citing 42 U.S.C. s 11603). If this burden is met, the child must be
promptly
returned unless Respondent can establish that one of the Convention's
enumerated
defenses applies. Lops, 140 F.3d at 945.
B.
*8 The interpretation of "habitual residence" is important to the
Convention
because it will dictate the arbiter of the custody dispute. However,
neither the
Convention nor ICARA actually define the term "habitual residence" and
the courts
have had some difficulty in doing so as well. Ruiz, 392 F.3d at 1252.
Quoting the
High Court of Justice in the United Kingdom, the Ruiz court stated "the
notion [of
habitual residence is] free from technical rules, .... The facts and
circumstances
of each case should continue to be assessed without resort to
presumptions ....
All that is necessary is that the purpose of living where one does has a
sufficient degree of continuity to be properly described as settled."
Id. Thus, in
concept, a child's habitual residence depends on the intentions of the
parties and
their residence at a particular locale for a sufficient period of time
to reveal a
settled intent. In this circuit, the controlling intent is that of the
parents
rather than the child. Ruiz, at 1253.
Ruiz sets forth the analytical framework for determining a new habitual
residence.
"The first step toward acquiring a new habitual residence is forming a
settled
intention to abandon the one left behind." Ruiz, 392 F.3d at 1252
(citing Mozes
v. Mozes, 239 F.3d 1067, 1075 (9th Cir.2001)). "[W]hen an alleged
abandonment of a
clearly established habitual residence for a new home is at issue, the
court must
determine not only whether the child was settled in his new home, but
whether the
prior habitual residence was abandoned, and the new home has supplanted
the old
'as the locus of the [child's] family and social development.' " Small
v. Clark,
No. 5:06-CV-125-OC10GRJ, 2006 WL 2024955, at *4 (M.D.Fla. July 17, 2006)
(unpublished opinion) (quoting Mozes, 239 F.3d at 1084). "It is not
necessary to
have this settled intention at the time of departure, as it could
develop during
the course of a stay originally intended to be temporary." Ruiz, 392
F.3d at 1252
(citing Mozes, at 1075). The determination of this "subjective" settled
intent is
important "because there can be no bright line rule with respect to the
length of
an absence." Id. at 1253. " 'All that is necessary is that the purpose
of living
where one does has a sufficient degree of continuity to be properly
described as
settled.' " Id. at 1252. However, settled intentions alone do not
transform the
habitual residence. "In addition there must be an actual change in
geography and
the passage of a sufficient length of time for the child to have become
acclimatized." Ruiz, at 1253 (citing Mozes, 239 F.3d at 1078).FN10 In
this
circuit, it is the intentions of the parents (rather than the child)
which affect
the length of time necessary for a child to become habitually resident.
Ruiz at
1254 (citing Mozes, at 1079-80). When there is no shared settled intent
on the
part of the parents to abandon the child's prior habitual residence, "a
court
should find a change in habitual residence if the objective facts point
unequivocally to a new habitual residence, or if the court could 'say
with
confidence that the child's relative attachments to the two countries
have changed
to the point where requiring a 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.' " Id. (citing Mozes, at 1081).
FN10. Courts look to the following factors in determining whether a
child is
settled in a new environment: "(1) the age of the child; (2) the
stability
of the child's new residence; (3) whether the child attends school or
daycare consistently; (4) whether the child attends church regularly;
(5)
the stability of the [parent's] employment; and (6) whether the child
has
friends and relatives in the new area." Lopez v. Alcala, 547 F.Supp.2d
1255, 1259 (M.D.Fla.2008).
C.
*9 The determination by the court that a child was wrongfully retained
"does not
automatically mean that the child must be returned to his or her
habitual
residence. Rather, once the petitioner has proven his or her case, "the
burden
shifts to the respondent to prove an affirmative defense against the
return of the
child to the country of habitual residence." Yang, 499 at 271. If a
respondent
proves one of the enumerated exceptions as an affirmative defense, a
district
court has the discretion to refuse to order the child be returned to his
habitual
residence. Id. at 278. Of the six exceptions under the Convention, two
have
application here:
- the person having care of the child had consented to or subsequently
acquiesced in the removal or retention of the child; and
- the child objects to being returned and has attained an age and degree
of
maturity at which it is appropriate to take account of its views.
Hague Convention, art. 13, 42 U.S.C. s 11603(e)(2).FN11 However, in
order to
effect the purpose and intent of the Convention, courts shall construe
and apply
the exceptions narrowly. See Yang, 499 F.3d at 278.
FN11. Respondent also affirmatively states that "a sufficient amount of
time
has passed and AGO has acclimated to the United States" ... and "AGO's
mother delayed filing under the Hague Convention unduly." (Doc. 18 at
3).
There is an exception in the Hague Convention where the child is
well-settled in the new environment but it requires a showing of a delay
in
filing judicial proceedings for more than one year from the wrongful
removal
or retention. See Hague Convention, art. 12. Here, judicial proceedings
were
instituted within one year of the wrongful removal or retention, thus
the
argument supports only the claim that the child's habitual residence was
the
U.S. at the time of the wrongful retention.
III.
As set forth above, to establish a case of wrongful removal or
retention, the
Petitioner must establish by the preponderance of the evidence that: (1)
AGO was a
"habitual resident" of Italy immediately before the date retained by the
Respondent; (2) the retention was in breach of the Petitioner's custody
rights
under the law of Italy; (3) Petitioner had been actually exercising or
would have
been exercising custody rights concerning AGO at the time of AGO's
retention; and
(4) the child has not attained the age of 16.
Although custody of the child has rotated between the mother in Italy
and the
father in the U.S. for much of the child's life, I am satisfied from a
preponderance of the evidence, that the parties had the shared settled
intention
that the child's habitual residence be with his mother in Italy, at
least through
his completion of middle school in May 2008. Italy is where he did most
of his
schooling and while he undoubtedly had friends and relatives and other
ties in
both locales and his custody was rotated with some regularity over the
years, the
parties' descriptions of all this leave me believing that Italy is
properly
considered his habitual residence. This conclusion is not altered by the
mother's
cry for relief in February 2007, resulting in the father bringing the
child here
for the balance of that school year. While Respondent proposes that the
child's
habitual residence was in the U.S. at least since that date, the
objective
evidence is that he was returned to Italy thereafter for completion of
middle
school during the 2007-2008 school year. FN12 Before leaving for the
U.S. in July
2008, the child was enrolled in a scientific high school in Italy for
the
2008-2009 school year. While claiming a different subjective intent, the
child
promised his mother he would return to Italy at the end of the summer.
FN12. Respondent urges that the family traveled together during the
summer
in 2007 and while the child did return to school in Italy for the
2007-2008
school year, this was part of an agreement with Petitioner that after
middle
school, the child would have the choice of where to attend high school.
This
purported agreement is entirely disputed by Petitioner but even if there
was
such agreement, the habitual residence of the child at that time was
Italy.
*10 Respondent may properly claim that the child maintained continuous
and close
ties with him in Florida including living here for months at a time
while
attending school in Hillsborough County schools. While here, it appears
that he
acclimated easily and well. Nonetheless, the greater concentration of
his life and
activities was in Italy. It is apparent that the relationship between
Petitioner
and the child was strained to the breaking point in February 2007, but
by the end
of that summer, the child was again at his home in Italy. There can be
only one
habitual residence in this context and despite Respondent's claims to
the
contrary, I find a shared intent by the parties that the child's primary
and
habitual residence be with his mother in Italy, at least through his
completion of
middle school in about May 2008.
After completion of middle school, as was fairly the routine, the
parties made
arrangements for the child and the twins to spend the summer of 2008
with
Respondent. Correspondence referencing the travel arrangements suggest
that the
child's stay in the U.S. was temporary, intended to end August 29, 2008.
It is
apparent that the child again quickly became acclimated to his
surroundings,
taking up activities in his Brandon, Florida neighborhood. By the
child's account,
he already knew he did not want to return to Italy. Respondent claims
that such
reflects that the child was fully acclimatized to this new life by the
end of the
summer and thus an habitual resident, if not so earlier in time. Both
the
Respondent and the child testified that by the end of August 2008, the
child was
fully settled on residing in Brandon and there attending high school. He
urges
that even if his habitual residence was Italy theretofore, by the end of
August
his new habitual residence was in the U.S.
As set forth above, the first step in acquiring a new habitual residence
is
forming a settled intention to abandon the one left behind. Such an
intention can
be formed even during a stay originally intended to be temporary.
However, in this
circuit, the person(s) whose intent is relevant in this inquiry " 'is
that of the
person or persons entitled to fix the place of the child's residence.' "
Ruiz,
392 F.3d at 1253 (citing Mozes at 1076) (quoting from E.M. Clive, The
Concept of
Habitual Residence, 1997 Jurid. Rev. 137, 144). FN13 Here, it is the
parents who
shared the child's custody. Clearly, Petitioner never intended that the
child
abandon his habitual residence in Italy for a new one in the U.S. While
the child
has convinced me that he developed a settled intent to remain in the
U.S. at the
end of the summer, his view is not controlling. In the given
circumstances, the
Respondent could not unilaterally act to change the habitual residence.
Thus, I
decline in the first instance to conclude that the habitual residence in
Italy was
abandoned by those entitled to fix the child's residence. While, there
is
demonstrated evidence that the child did well once he settled in to the
home in
Brandon in July, given that such positive contacts alone are not
sufficient in
this circuit to prove acclimatization and the court must look again to
the
parents' intentions in measuring the time necessary for a child to
become
habitually resident, I conclude there is insufficient showing that the
child had
become so acclimatized by the end of August 2008 that he was then
habitually
resident in the U .S. As the court in Ruiz stated, " '[d]espite the
superficial
appeal of focusing primarily on the child's contacts in the new country,
..., we
conclude that, in the absence of settled parental intent, courts should
be slow to
infer from such contacts that an earlier habitual residence has been
abandoned.' "
Ruiz, at 1253-54 (quoting Mozes, at 1079). As discussed below, while I
conclude
that the child sincerely wished to remain in the U.S. at least by August
2008,
here I find the objective facts do not point unequivocally to a new
habitual
residence by the end of August 2008.
FN13. In the foot note to this citation, the Ruiz court found
unpersuasive a
different approach adopted in the Sixth Circuit which rejected the use
of
parental intent as the standard and looked to the child's intent. Ruiz,
392
F.3d at 1253 n. 3.
*11 As for the remaining elements, it is undisputed that Respondent
determined to
keep all the children with him at the end of August 2008 without any
prior
discussions with the Petitioner. While there was no custody order in
place at that
time, such retention was nonetheless improper. The parties had evidenced
a clear
intent that custody of the child was joint, shifting back and forth by
agreement
or necessity. Here, the objective evidence indicates the parties'
agreement was
that custody would return to the mother at the end of August. In these
circumstances, Petitioner could properly complain under the Convention
when the
children were not returned despite the lack of a formal custody order.
See Van
Driessche v. Ohio-Esezeoboh, 466 F.Supp.2d 828, 844-45
(S.D.Tex.2006).FN14 While
I
conclude that there had been discussions in the summer of 2007 about
letting AGO
choose which high school he would attend, such discussions were not
reduced to a
firm agreement such that Respondent can claim that the custody
arrangement had
been altered. Here, the objective evidence reveals that the Petitioner
expected
the child to return in August 2008, to begin school and she was prepared
to
exercise her custody rights over the child at that time. She was
prevented from
doing so when the Respondent failed to return the child as agreed. Given
the age
of the child at that time, Petitioner has established each of the
elements on her
claim of wrongful retention.
FN14. Children who are wrongfully removed or retained prior to the entry
of
a custody order are protected under the Convention. See 51 Fed.Reg. s
10,505. Nor must parents in such circumstances first obtain a custody
order
in the State of the child's habitual residence as a prerequisite to
invoking
the Convention's return provisions. Id. at s 10,506. It appears that
under
Italian law, the Petitioner, in these circumstances, has primary
authority
over the child residing with her. See Pet'r Exh. 4A. Under U.S. law,
both
parents generally have equal custody rights to their children prior to
the
issuance of a court order allocating rights between them. Thus,
Petitioner
could seek relief under the Convention even in the absence of a prior
custody decree.
Respondent raises two affirmative defenses which he urges are
applicable. First,
he contends that the mother consented to AGO remaining in the United
States and
second he contends that AGO has reached an age of maturity that his
objections to
being returned should be heeded.
As set forth above, Article 13(a) of the Convention permits a court to
refuse to
order the return of children, despite a wrongful removal or retention,
if
Respondent proves by a preponderance of the evidence that Petitioner
"had
consented to or subsequently acquiesced in the removal or retention."
Hague
Convention, art. 13(a). "The consent defense involves the petitioner's
conduct
prior to the contested removal or retention, while acquiescence
addresses whether
the petitioner subsequently agreed to or accepted the removal or
retention."
Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.2005) (citations omitted).
On this
defense, Respondent suggests that a number of events demonstrate consent
on the
mother's part.FN15 In February 2007, the mother sent a message to the
father
saying that she was done with AGO and that the father should come pick
him up. In
response, Respondent traveled to Italy, bringing AGO back to the U.S.
for
completion of the 2006-2007 school year. According to Respondent,
following their
travels together as a family in summer 2007, Petitioner and Respondent
met with
the Petitioner's brother, an Italian lawyer, to reach an agreement about
certain
matters regarding child support and AGO's schooling with the ultimate
decision
being that AGO would spend the 2007-2008 school year in Italy and that
AGO would
then decide at that point whether he wanted to attend high school in
Italy or the
United States. Such is denied by the Petitioner, but I am satisfied that
a meeting
took place with the uncle in which this was discussed. However, no firm
agreement
has been demonstrated such that the court can comfortably conclude from
this that
Petitioner consented in the summer of 2007 to allowing her child alone
to
determine where he would attend high school and thereby determine where
he would
reside after the 2007-2008 school year.
FN15. Although Respondent's Proposed Findings and Conclusions (Doc. 30)
raise the defense of "consent," he argues the mother's conduct in 2007,
as
well as her conduct subsequent to the alleged wrongful retention, and
thus
the court addresses the argument as one based on consent and/or
acquiescence.
*12 Respondent also urges that when Petitioner returned to Italy
following her
visit in September 2008, she left the country without AGO, but took his
U.S.
passport, thereby evidencing her acquiescence in his remaining in the
U.S. FN16
Additionally, Respondent argues that a text message sent by the
Petitioner to AGO
in November 2008 stating "... you are done with me, you never treated me
right and
not even your brothers. You make your choice, we will make ours ..."
demonstrates
her acceptance of his decision to remain in the United States. While
Petitioner
acknowledges sending the text, she adamantly denies consenting or
acquiescing in
AGO's remaining in the U.S. Further, she testified that she was in
repeated
contact with the authorities regarding obtaining his return, and she was
actively
pursuing custody in the Italian court system at the time, all of which
point to a
lack of consent or acquiescence on her part. The court agrees and finds
that this
sequence of events is also insufficient to demonstrate that Petitioner
consented
to or subsequently acquiesced in the child's retention, and thus that
exception
would not apply in the instant matter to prevent return of the child to
Italy.
This affirmative defense is not established.FN17
FN16. The child holds both a U.S. and an Italian passport and had
traveled
to the U.S. in July on his Italian passport. The U.S. Passport was left
with
the child along with an airline ticket in February 2009. I cannot
conclude
that the circumstances reflect consent or acquiescence.
FN17. On the other hand, this statement by the mother does reflect that
AGO
had firmly communicated to her his desire to stay in the U.S. with his
father.
Finally, while Respondent firmly contends that the U.S. is and has been
AGO's
habitual residence, he nonetheless argues that even given a finding of
Italy as
the habitual residence at the time of the wrongful retention, the court
has
discretion to refuse to order the child to be returned to Italy where,
as here,
"the child objects to being returned and has attained an age and degree
of
maturity at which it is appropriate to take account of its views." Hague
Convention, Art. 13; 42 U.S.C. s 11603(e)(2)(B). If proven by a
preponderance of
the evidence, this exception provides a separate and independent basis
for a court
to refuse to return a child to the country of habitual residency.
Blondin v.
Dubois, 238 F.3d 153, 166 (2d Cir.2001). However, like other exceptions,
it is to
be narrowly applied. England, 234 F.3d at 272.
The Hague Convention does not set a specific age at which a child is
automatically
considered to be sufficiently mature, and courts must make the
determination on a
case-bycase basis. Yang, 499 F.3d at 279. Professor Elisa Perez-Vera,
the official
Hague Convention reporter, authored an explanatory report that is
recognized as
"the official history and commentary on the Convention and is a source
of
background on the meaning of the provisions of the Convention available
to all
States becoming parties to it." Hague International Child Abduction
Convention:
Text and Legal Analysis, 51 Fed.Reg. 10,494-01 at 10,503 (Mar. 26,
1986).
Perez-Vera offers this insight into the child objection exception set
forth in
Article 13:
[T]he Convention also provides that the child's views concerning the
essential
question of its return or retention may be conclusive, provided it has,
according to competent authorities, attained an age and degree of
maturity
sufficient for its views to be taken into account. In this way, the
Convention
gives children the possibility of interpreting their own interests. Of
course,
this provision could prove dangerous if it were applied by means of the
direct
questioning of young people who admittedly have a clear grasp of the
situation
but who may also suffer serious psychological harm if they think they
are being
forced to choose between two parents. However, such a provision is
absolutely
necessary given the fact the Convention applies, ratione personae, to
all
children under the age of sixteen; the fact must be acknowledged that it
would
be very difficult to accept that a child of, for example, fifteen years
of age,
should be returned against its will.
*13 The Perez-Vera Report, Actes et documents de la Quatorzieme Session,
6 au
octobre 1980, Tome III, Enlevement d'enfants at 433, P 30, available at
http://hcch.evision.nl/upload/expl28.pdf. Several courts have
interpreted this
language to acknowledge that "a court may refuse repatriation solely on
the basis
of a considered objection to returning by a sufficiently mature child."
See de
Silva v. Pitts, 481 F.3d 1279, 1286 (10th Cir.2007) (quoting Blondin,
238 F.3d at
166); see also Leites v. Mendiburu, No. 6:07-cv-2004-Orl-19DAB, 2008 WL
114954,
at *6 (M.D.Fla. Jan.9, 2008) (court exercised its discretion in denying
petition
for return of a thirteen-year-old child who expressed affection for both
parents
and acknowledged missing family and friends in Argentina but
nevertheless gave
credible, independent reasons for her objection to being returned to
Argentina and
court found the minor to be bright, mature, and articulate in her
reasoning);
Laguna v. Avila, No. 07-CV5136 (ENV), 2008 WL 1986253, at *11 (E.D.N.Y.
May 7,
2008) (finding thirteen-year-old child's objection to being returned to
Columbia
to be the "product of independent reasoning and thoughtful
consideration" and not
the product of his parents' influence, and determining the child of an
age and
maturity that it was appropriate to take account of his views and "meets
the
narrow exception created by the Hague Convention's unnumbered defense to
repatriation"); McManus v. McManus, 354 F.Supp.2d 62, 71 (D.Mass.2005)
(court
concluded that fourteen-year-olds' objections to being returned to
Ireland were
thoughtfully, and not reflexively, reached and ought to be honored).
Indeed, the
"Convention clearly contemplates that the objections of a mature child
should be
taken account of and can be relied on to override the return that would
otherwise
be mandated." Id. at 72.
At the time of the hearing and the court's in camera interview of AGO,
he was
fourteen years old and due to turn fifteen in less than three months. By
his
parents' account, he is intelligent and does well in school. The court
found him
to be bright and more than adequately articulate, brief but thoughtful
in his
responses. Neither Petitioner nor Respondent dispute that he possesses
appropriate
maturity for a person of his age, and the court found him to demonstrate
a serious
understanding of the proceedings and that which he was being called upon
to
address.FN18 He understood the oath and was permitted to testify. By his
account,
he does not want to be returned to Italy and he wishes to remain in the
U.S. I
credit his testimony that even before coming to the U.S. in July 2008,
he had
determined he wished to stay here despite what he told his mother. He
believes
there was an agreement that would permit him to choose where he would
attend high
school and by his choice he wishes to continue at Brandon High School.
There is no
reason presented to doubt the child's sincerity nor any doubt that he
honestly
desires to stay in the U.S., while at the same time missing his family
and friends
in Italy. Other objective evidence supports this conclusion. In
September 2008 and
in February 2009, AGO had time alone with his mother to discuss his
reasons for
wanting to live in the U.S. They often exchanged e-mails. There is no
credible
evidence that the father sought to interfere with the discussions or
communications between the mother and child. The child accompanied his
mother to
the airport on both occasions when she left and could have returned to
Italy had
he desired to do so. He affirmatively chose to stay in the U.S. after
telling his
mother why. As noted above, the mother's frustrated text message to the
child in
November 2008 also suggests that the child was firm in his conviction
not to
return to Italy.
FN18. As noted above, while not disputing his intelligence or maturity,
Petitioner argues that the passage of time and the father's undue
influence
prohibits the court from taking into account the child's views.
Petitioner
is correct that "[a] child's objection to being returned may be accorded
little if any weight if [for example] the court believes that the
child's
preference is the product of the abductor parent's undue influence over
the
child." Department of State, Hague International Child Abduction
Convention,
text and Legal Analysis, Pub. Notice 957, 51 Fed.Reg. 10,494, 10,509
(1986).
I have carefully considered this contention.
*14 The Court is unpersuaded by Petitioner's reliance on Yang v. Tsui,
499 F.3d
259 (3d Cir.2007) wherein that court found the minor child was not of
sufficient
age or maturity for her views to be considered.FN19 Although ten years
of age when
interviewed by the court, the child was only six years old when
wrongfully
detained and had been with the father only a few weeks before the
wrongful
retention occurred. Here, AGO had lived with his father in Florida on
multiple
occasions prior to the summer 2008, at times up to six months out of a
year. He
had developed friendships and connections to Florida before returning in
summer
2008. He had acquired a dog to which he was returning. When he returned
in July
2008, he brought additional personal belongings, and it did not take him
long to
acclimate to his life in the U.S. Thus, the court finds that AGO. has
attained an
age and degree of maturity at which it is appropriate to take account of
his
views, and he has clearly expressed his desire to remain in the United
States and
objects to his return to Italy.
FN19. The court has also considered In re Robinson, 983 F.Supp. 1339
(D.Col.1997) and Giampaolo v. Erneta, 390 F.Supp.2d 1269 (N.D.Ga.),
relied
upon by Petitioner, but finds those cases involving ten-year-old
children
whose objections to return were either rejected or discounted due to a
finding of undue influence to be factually distinguishable from the
instant
matter.
Undue influence by the Respondent is not demonstrated. While it would be
naive to
assume that the child has not been influenced in many ways by his
positive
relationship with his father during the past year, and the sometimes
uncomfortable
relationship with his mother brought on by the circumstances, it is not
demonstrated that such affected his decision in August 2008 that he
remain in the
U.S. for high school.
I conclude that the child's objections to returning to Italy are real
and
heartfelt. As he sees it, life is better here and he is more comfortable
in his
surroundings. This is not a choice of parents but as he sees it a choice
of
country. Both parents appear loving and caring toward the child and both
are
capable of doing so. While the court does not condone the unilateral
actions of
the father in failing to assure the return of the child as agreed in
August 2008,
I do believe that such was equally the desire of the child that he not
be
returned. I am persuaded that the child's objection to being returned to
Italy
should be accepted and the Petitioner's request for relief be denied.
IV.
Accordingly, it is recommended that Respondent's Motion to Dismiss for
Lack of
Subject Matter Jurisdiction (Doc. 13) be DENIED and Petitioner's Motion
for a
Temporary Restraining Order and Order to Show Cause Why a Preliminary
Injunction
Should Not Be Entered Against Respondent and Incorporated Memorandum of
Law
(Doc.
3) be DENIED.
Recommended in Tampa, Florida, this 10th day of July 2009.
M.D.Fla.,2009.
Ago v. Odu
Slip Copy, 2009 WL 2169857 (M.D.Fla.)
END OF DOCUMENT
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