In Armiliato v. Zaric-Armiliato, 169 F.Supp.2d 230 (S. D. N. Y.
2001), the court held that for purposes of Hague Convention the question
of whether a person is or is not a habitual resident in a specified
country is a question of fact to be decided by reference to all the
circumstances of any particular case. After the mother removed child to
New York, the child's "habitual residence" was Genoa, Italy rather than
New York, though the child had traveled extensively with her parents to
New York and other cities due to the father's operatic performance engagements; the child continually returned to
Genoa for months at a time and attended half of the school year there.
The child's primary language was Italian, the father's family lived in
Genoa, the father's engagements in New York were temporary, and the
mother and child were in New York only temporarily on visa waiver
program.
The mother's unilateral removal of the six-year-old child from Italy
without the father's consent breached the father's rights of custody
under Italian law. Italian law stated that the child was subject to the
authority of the parents until majority, and that such authority was
exercised by both parents through mutual agreement.
The father was exercising his custody rights under Italian law when
the mother unilaterally removed the child from Italy and took her to New
York without the father's consent. Though the mother was the child's
primary care-taker at the time of removal; the father was the sole means
of the child's financial support, was in constant contact with the child
and visited her regularly, took care of her medical needs, and
participated in decisions about her education.
