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In Poliero v Centenaro, 2009 WL
2947193 (E.D.N.Y. 2009) the District Court reviewed de novo Magistrate
Judge Pollack's findings (1) that the parties' most recent shared intent
with respect to their children's residence was that they reside in
Italy, and (2) that the evidence did not unequivocally point to the
conclusion that the children had acclimatized to their new location and
thus acquired a new habitual residence--together with Magistrate Judge
Pollak's concomitant holding that the children are "habitually resident"
in Italy for purposes of the Hague Convention and ICARA--the Court
concured with Magistrate Judge Pollak's rulings for the reasons set
forth in her Report and Recommendation. Because (1) the children were
habitually resident in Italy and had been retained in the United States;
(2) the retention was in breach of Petitioner's custody rights under
Italian law; and (3) Petitioner was exercising his rights at the time of
retention, the Court held that Magistrate Judge Pollak properly
recommended that Petitioner prevail on his claim under the Hague
Convention and ICARA. The Report and Recommendation was adopted in its
entirety. Petitioner, a citizen of Italy, married the respondent Barbara
Centenaro, also an Italian citizen, in Brunico, Italy on September 11,
1993. Petitioner was listed with the Italian government as a resident of
Vicenza, Italy. Respondent was listed with the Italian government as a
resident of Brunico, Italy, where she was born. Petitioner was the
director of the Legor Group, the headquarters of which is located in
Vicenza, Italy. Petitioner and respondent were the parents of four minor
children: a son, born October 21, 1995, a daughter, born December 4,
1999, a son, born May 7, 2003, and a daughter, born April 8, 2005 The
children were born in Italy and were Italian citizens. The two oldest
children are registered with the Italian government as residents of
Vicenza, while the two younger ones were registered as residents of
Brunico until May 13, 2009. From March or April 2003 until July 2007,
petitioner, respondent and their children lived in their family home at
Via Del Camodolesi Street, Number 32, Vicenza, Italy. The children have
a large extended family who live nearby. *3 In December 2006, after a
"crisis" in their marriage, petitioner and respondent visited New York
together for four days. During that visit, the couple began discussing
the possibility of moving ro New York for a year. According to
respondent, she wanted to move the family to New York because she no
longer "fe[lt] comfortable in the environment" in which she was living.
She testified that her relationship with her husband had been
deteriorating for some time; she felt he had low empathy for her as a
person, that he controlled her through his control of the family
finances, and that he beat her.. She admitted that in 2006, she had
engaged in an extramarital affair and had considered leaving her
husband. Following the couple's trip to New York in December 2006,
petitioner testified that respondent and he agreed to move their family
to New York for one year, and they agreed to coincide that one year stay
with their children's school schedule and the opening of a branch of the
Legor Group in New York. The couple returned to New York for
approximately six days in March of 2007, in connection with a trade show
attended by the Legor Group. During their visit in March 2007, the
couple located and ultimately decided to rent apartment P3F in the
Avalon Riverview apartments located at 2-01 50th Avenue, Long Island
City, New York. The lease began in April of 2007, and it terminated one
year later. On July 18, 2007, respondent traveled with two of the
children to New York and moved into apartment P3F. Petitioner and the
other two children arrived two days later, moving into the apartment on
July 20, 2007. During the first year, respondent and the children were
residing in New York as non-residents on petitioner's L1 visa. When the
family came back to the United States for a second year, petitioner
obtained El visas for each member of the family, which are good for five
years. On July 20, 2007, petitioner and respondent rented furniture for
the apartment. The lease for the rental furniture expired one year
later. From July 2007 through June 2008, petitioner, respondent and
their four children lived in apartment P3F. During that time, petitioner
opened a New York branch of the Legor Group; the two oldest children
attended the Marconi School, and respondent spent time at home with the
two youngest children. The family continued to maintain the home in
Italy, which contained their furnishings, possessions and automobiles.
Respondent denied that at the time the family came to New York she had
an agreement that she would return to live in Italy at the expiration of
the lease. In December of 2007, the family flew back to Italy to spend
their Christmas vacation at their family home in Vincenza. In February
or March of 2008, petitioner and respondent agreed to extend their
family's stay in New York for one more year. On June 10, 2008, at the
expiration of the one-year lease, the family moved out of apartment P3F,
spent two weeks on vacation in Connecticut and then returned to Italy to
spend the remainder of the children's summer vacation at their family
home in Vincenza. Neither petitioner nor respondent maintained another
residence in New York during that time. In mid-August 2008, she found
and rented an apartment in the same building in which the family had
been previously living, apartment 26B in the Avalon Riverview apartments
located at 2-01 50th Avenue, Long Island City, New York 11101. This time
they entered into a ten-month lease agreement which began on September
12, 2008 and ended on July 1, 2009. According to respondent, the reason
that they entered into a ten-month lease was because the school year
ended in June. Petitioner, respondent and the children came back to New
York at the end of the summer and occupied apartment 26B in September of
2008. Thereafter, petitioner had to return to Italy for work, so he
lived separately from his family. Petitioner planned to return to New
York once a month to be with his family. Petitioner claims that
respondent agreed that she and the children would return to Italy on
July 1, 2009, when the lease expired. Respondent and the children
remained in New York from September of 2008 until December 2008, when
they returned to Italy for Christmas vacation. On January 20, 2009,
petitioner registered his three youngest children for the international
school in Rosa and paid twenty percent of the tuition as a deposit.
Respondent contended that she had never seen this exhibit before, nor
did she know as of January 20, 2009, that he had actually registered the
children in school in Italy. On February 8, 2009, respondent sent
petitioner an e-mail which petitioner claims was an instruction to him
to enroll their oldest child in the Quadri School. On March 29, 2009,
despite respondent's now expressed desire to remain in New York,
respondent sent an e-mail to Randy Iorizzo, an employee of Avalon
Riverview, with a copy sent to petitioner, indicating that she and the
children would "leave the unit 26B on July 1st 2009, as signend [sic] in
the contract." Thereafter, on April 14, 2009, petitioner received a
certified letter from Manuela Tirini, an attorney in Bologna, Italy,
purporting to represent respondent. The letter indicated that respondent
wanted to work out a "reasonable solution" to the "discord and tension"
in their marriage, without going through a formal separation. According
to petitioner, petitioner's attorney conducted discussions with
respondent's attorney, but discussions ceased when respondent fired her
Italian attorney. On June 6, 2009, at John F. Kennedy International
Airport, petitioner was served with an action for divorce and custody in
the State of New York. On June 23, 2009, petitioner filed his Hague
Convention Petition. On July 1, 2009, respondent did not return to Italy
with the children. On July 21, 2009, the Honorable Sidney F. Strauss
dismissed the divorce and custody action in New York Supreme Court.
The Referee noted that respondent did not claim
that the case fell within one of the four exceptions set forth in the
Hague Convention. The Referee found that petitioner satisfied his burden
of proving by a preponderance of the evidence that his children were
wrongfully retained in the United States. Petitioner alleged that his
custody rights arise by operation of Italian law, pursuant to Article
155 of the Italian Civil Code, 1970 Divorce Act. Under Article 155 of
the Italian Civil Code, 1970 Divorce Act, both parents are entitled to
rights of custody and parental authority. Similarly, given that
petitioner and respondent were still legally married and there was no
legal determination on divorce or custody rights, petitioner would also
have custody rights under United States law. See Gitter v. Gitter, 396
F.3d at 130. The Court held that given that the children lived with both
of their parents in Italy until July 2007 and in New York until at least
September 2008, and that both parents are and continue to be actively
involved in making custodial decisions for the children, such as where
they will live and the schools the children should attend, regardless of
whether the Court determines that Italy or New York is the "habitual
residence" of the children, petitioner would clearly have custody rights
under either Italian or New York law that can be enforced by the Hague
Convention. Petitioner credibly testified that he did not consent to the
children staying in New York past July 1, 2009. The evidence established
that petitioner was exercising his custody rights up until the time when
the children were retained in the United States. While petitioner had
not been living with respondent and the children for the past months
because he had to return to Italy for work, he was involved in all
decisions regarding their primary care, including where they would live
and what schools they would attend. He visited multiple times throughout
the year, provided them with financial support, and regularly
communicated with the respondent about their care and well-being.
Accordingly, petitioner established that respondent's retention of the
children constitutes a breach of his parental rights of custody.
The main dispute between the parties centered
on the habitual residence of the children. The Referee noted that the
Second Circuit has set forth the following standard for determining a
child's habitual residence: "First, the court should inquire into the
shared intent of those entitled to fix the child's residence (usually
the parents) at the latest time that their intent was shared. In making
this determination the court should look, as always in determining
intent, at actions as well as declarations. Normally the shared intent
of the parents should control the habitual residence of the child.
Second, the court should inquire whether the evidence unequivocally
points to the conclusion that the child has acclimatized to the new
location and thus has acquired a new habitual residence, notwithstanding
any conflict with the parents' latest shared intent. Gitter v. Gitter,
396 F.3d at 134; see also Villegas Duran v. Arribada Beaumont, 534 F.3d
142, 147 (2d Cir.2008); Aguirre v. Calle, No. 08 CV 2613, 2008 WL
4461931, at *4 (E.D.N.Y. Oct.3, 2008). To determine if a child has
acclimatized to a new location, courts "must consider if requiring
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." Daunis v. Daunis, 222 Fed. Appx. 32, 34 (2d Cir.2007)
(internal citations omitted). However, it is only in "relatively rare
circumstances" that a child's acclimatization will "be so complete that
serious harm to the child can be expected to result from compelling his
return to the family's intended residence." Id. (internal citations
omitted). The Second Circuit has cautioned that courts "should be slow
to infer that the child's acclimatization trumps the parents' shared
intent." Gitter v. Gitter, 396 F.3d at 134 (internal citations omitted);
id. at 133 (noting that the Second Circuit would be "hard pressed to
conclude ... that a child who has spent fifteen years abroad in the same
State is not habitually resident there").
The Court noted that the family never severed
their ties in Italy. Both parties agreed that the original concept was
to come to New York for a year, while petitioner opened the New York
office. Respondent conceded that at the time they originally came from
Italy, she did not know what life for the family would be like here.
Petitioner and respondent made no effort to sell the family home, left
their furnishings and automobiles in Italy, and did not purchase a new
home here, choosing instead to rent apartments and furniture on a short
term basis. Although petitioner had temporary employment here in the
United States while he opened the New York branch, neither he nor
respondent obtained permanent employment here. Petitioner had to return
to Italy during the second year respondent was living here because of
his job. Similarly, while the older children may have been enrolled in
the same school here in New York for two years, they were not currently
enrolled in any school in the United States for the upcoming year;
rather, they were enrolled in schools in Italy. Having considered the
testimony of both parties and weighing their credibility in light of all
of the circumstances, the Court foundthat overall, the evidence shows
that petitioner's and respondent's last shared intent was to come to the
United States only on a temporary basis and to keep Italy as the
children's place of habitual residence until they were able to determine
whether New York would be a suitable environment for the family. The
Court credited the honesty of respondent who conceded that when they
first arrived in New York, they were here only on a temporary basis
which is why they rented the apartment for a short period of time.
Petitioner's testimony was unequivocal that he intended to return the
family to Italy. In January, he purchased airline tickets for their
return in July, and he enrolled the children in Italian schools.
Although he discussed in the March 15, 2009 email to his wife looking
into the possibility of relocating to New York in an effort to keep the
family together, it was clear that at that time, he was concerned about
his ability to support the family financially and the need to discuss
this move with the family firm in Italy. As of this period of time,
there was no joint meeting of the minds to remain either in New York or
to return to Italy. Thus, considering the last moment when it is clear
the parties agreed, it appeared that there was an intention to return to
Italy. At the request of respondent, this Court conducted interviews on
August 11, 2009, with the two oldest children of petitioner and
respondent in an effort to obtain additional factual information
relating to the acclimatization of the children. These interviews were
conducted in camera and without the presence of either of the parents or
counsel. Petitioner took the position that the evidence did not
"unequivocally point to the conclusion" that the children have
acclimated to their location in the United States. The children spent
less than two years in the United States in total. They spent holidays
and extensive vacations of several months in Italy. Respondent cited
Feder and another Third Circuit case, Karkkainen v. Kovalchuk, 445 F.3d
280, 292 (3d Cir.2006) (holding that the child who had been in the
United States for only three months had become acclimated to her new
home, had strong English skills, and had registered in the same private
school for both the summer and fall semesters), to argue that because
periods of six months and three months are sufficient to establish
acclimatization, the children in the instant case are clearly
acclimatized. The two older ones have attended the same school for the
past two years, developed strong friendships, participated in
extracurricular activities, traveled extensively throughout the United
States, and speak English well. The two younger ones have similarly been
involved in the community--the younger boy attended public school for
kindergarten, and the younger daughter has attended "Little Ones"
nursery school three times a week.
The Court concluded that while the children
adjusted well to their new lives in New York and hae been successful in
pursuing their school work and other activities, the Court was hard
pressed to find that they are so acclimatized that either their
adjustment trumps the parents' shared intent or that returning them to
Italy would "be tantamount to taking the child out of the family and
social environment in which its life has developed." Daunis v. Daunis,
222 Fed. Appx. 32, 34 (2d Cir.2007) (internal citations omitted). See
also Lachman v. Lachman, 2008 WL 5054198, at *6 (finding that there is
no evidence "unequivocally point[ing] to the conclusion that the child
has acclimatized to her new location in the United States,
notwithstanding her parents' intentions. At most, the child has spent
the better part of two years in the United States since her removal from
the United Kingdom") (internal citations omitted); Aguirre v. Calle,
2008 WL 4461931, at *4 (finding no evidence that child had acclimatized
to the United States despite her presence there for more than one year);
cf. Gitter v. Gitter, 396 F.3d at 133 (noting that the Second Circuit
would be "hard pressed to conclude ... that a child who has spent
fifteen years abroad in the same State is not habitually resident
there"). Based upon these interviews, the Court found that while the
children were articulate and thoughtful for their age, they had not
attained an age and degree of maturity at which it is appropriate to
refuse repatriation solely on the basis of a considered objection. The
Court considered their requests as part of a broader analysis, but did
not give their preferences definitive weight. Petitioner requested that
respondent pay petitioner's legal costs and fees pursuant to 42 U.S.C.
11607. ICARA provides that any court that orders the return of a child
under the Hague Convention shall also "order the respondent to pay
necessary expenses incurred by or on behalf of the petitioner, including
court costs, [and] legal fees ... unless the respondent establishes that
such order would be clearly inappropriate." 42 U.S.C. 11607(b)(3).
Petitioner brought this action pursuant to 42 U.S.C. 11603 seeking the
return of his four children. The Court ordered the children returned to
Italy. Thus, petitioner was entitled to an award of necessary expenses
including court costs and legal fees unless respondent established that
such an award "would be clearly inappropriate." See 42 U.S.C.11607.
Here, respondent established that an award of legal fees and expenses
would be clearly inappropriate and unjust, given that petitioner
controled all of the finances, and that respondent had no appreciable
assets of her own, is not employed, and lived on the money that
petitioner transfered to her bank account. The Court recommended that
petitioner's request for attorneys' fees be denied. |
