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Guzzo v Cristofano, 2011 WL 6934108 (S.D.N.Y.)[Italy] [Habitual Residence]

In July 2008, Respondent became pregnant again. The parties again argued over whether the child should be born in Italy or New York. In August 2008, however, Respondent miscarried. (Id.) For the remainder of 2008, Respondent and the child spent the vast majority of their time in Italy. In November 2008, Respondent became pregnant once again. Shortly thereafter, the parties' relationship became quite tumultuous. They argued often, and, ultimately, Respondent had another miscarriage.

In February 2009, Respondent took the child back to New York and told Petitioner that she wanted a separation. Over the next several months, the parties and their counsel negotiated a separation agreement, which was executed in English by Respondent on May 20, 2009, and in Italian by Petitioner on June 10, 2009. The Separation Agreement provided, among other things, that: (i) "[t]he parties shall continue to live separate and apart"; (ii) "[t]he Wife shall have custody[ ] of the minor child of the parties"; (iii) "the Husband shall pay child support to the Wife for the benefit of the minor child of the parties in the amount of Euro 500 per month"; and (iv) Petitioner "consents to [the child's] current registration in the Good Counsel Academy" in White Plains, New York. The Separation Agreement also provided for Petitioner's visitation rights as follows:

The husband and wife may agree to any reasonable periods of visitation of the child by the husband at any time, subject to reasonable notice and final approval by the wife as to the location and length of such visitation. In view of the international aspect of this issue, however, the husband shall have the absolute and uncompromisable right of visitation during the months of July and August of each year in Italy, or such other two month (or 60-day period) as shall be agreed upon by husband and wife with two months prior notice by either. The husband shall also have the absolute right of visitation with respect to Christmas and Easter in alternating years.  When visitation occurs in Italy and until the child is 16 years of age, the wife shall accompany [the child] who will live with his father. At the husband's absolute and unreviewable discretion, the wife may live with the child during the 2-month period of visitation throughout the year; however, the wife shall have the right to find and live at her own apartment at her expense.... When [the child] shall become 16 years of age, he shall be able to travel alone and can go to Italy to visit his father who will pay for his international travel and his stay.  When visitation occurs in the USA, the husband may reside in the basement  apartment at the wife's house at 34 Read Street, Tuckahoe, NY, at his discretion and rent free.

After the Separation Agreement was signed by both parties, Respondent returned to Italy with the child. Respondent testified that her trip to Italy was undertaken as an attempt at reconciliation with Petitioner, but that she was only willing to make the attempt because she had the protection of the Separation Agreement. Respondent also testified that, regardless of the reconciliation attempt, she never intended to have the child attend primary school in Italy and that she always planned to live with the child in New York once he was in kindergarten. Respondent spent most of the summer of 2009 in Scario, and, after a brief stay in New York, Respondent returned to Scario in November 2009 and the child began attending nursery school there. At the end of 2009, Respondent purchased a small cottage in the hills outside Scario for 30,000 Euros. Respondent testified that she purchased the house because the Separation Agreement required her to bring the child to Scario each summer for two months for Petitioner's visitation.

In 2010, Respondent and the child spent the vast majority of the year in Scario, but periodically made trips to New York. In September 2010, Respondent became pregnant yet again, but miscarried shortly thereafter. Around this time, the parties were arguing frequently, and in November 2010, Respondent took the child back to New York with the intention of not returning to Italy.

In late December 2010, Petitioner visited Respondent in New York and the parties agreed to make another attempt at reconciliation. Respondent and the child returned to Italy with Petitioner on January 10, 2011. Over the next several months, however, the parties' relationship became tumultuous once again and, in August 2011, Respondent returned to New York with the child, where they remained. Respondent enrolled the child at Good Counsel Academy in White Plains and initiated a divorce proceeding in Westchester County.

Petitioner initiated this action on October 12, 2011, by filing a writ of habeas corpus in Supreme Court, Bronx County, pursuant to the Hague Convention and the International Child Abduction Remedies Act. On October 19, 2011, Respondent removed the action to the District Court.

The District Court found that Petitioner failed to demonstrate by a preponderance of the evidence that Italy, rather than New York, was the child's habitual residence. It observed that in Gitter, the Second Circuit set forth a two-part test for ascertaining a child's habitual residence pursuant to the Hague Convention: 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, 396 F.3d at 134.

The Court found that the Separation Agreement, pursuant to which the parties agreed that Respondent would have custody of the child, live with the child in New York, and send the child to school in New York, constituted the last shared intent of the parties. The terms of the Separation Agreement were consistent with the nature of the parties' relationship leading up to the execution of the document. From the time the parties met in 2005, they engaged in a "bi-continental" relationship in which "[Respondent] would live in New York, [Petitioner] would live in Italy, and [the parties] would go back and forth. If anything, the parties' actions prior to the Separation Agreement suggest that Petitioner-and not Respondent- was open to relocating permanently. Petitioner argued that, even if the Separation Agreement represented the intent of the parties at the time it was executed, the parties' subsequent actions demonstrate a changed shared intent that the child should be raised in Italy. Petitioner testified that, after the agreement was signed and Respondent went with the child to visit Petitioner in Italy, the parties "started to live as if the agreement had never existed." Petitioner, for example, testified that Respondent made no effort to enforce the child support provisions of the Separation Agreement. Indeed, according to Petitioner:

Petitioner testified that, after this purported reconciliation, the parties developed a new "mutually shared opinion that [the child] would start the ... first five years of primary school and the following three years of middle school" in Italy before moving to the United States to continue his secondary education. With respect to this assertion, the Court found that Petitioner's testimony was not credible. Moreover, it was belied by the other evidence presented at trial. On the other hand, Respondent's conduct following the execution of the Separation Agreement, when viewed as a whole, was thoroughly consistent with her stated intention to educate the child in New York once it became time to enroll him in kindergarten. Despite the parties' apparently sincere attempts at reconciliation, the evidence demonstrated that Respondent never contemplated spending her life in Italy or having the child attend Italian schools following preschool.

Moreover, the evidence demonstrates that Respondent retained her New York real estate-another fact consistent with her stated intention to have the child attend school in New York. Additionally, and of particular significance, Respondent repeatedly refused to register the parties' marriage in Italy, which would have entitled her to state funded health insurance while there. The Court's finding that New York was the child's place of habitual residence was consistent with recent Second Circuit case law on this issue. Gitter, 396 F.3d at 128; Poliero v. Centenaro, 373 F. App'x 102 (2d Cir.2010)

The Court found that taken as a whole, the evidence presented that Respondent did not intend to make Italy the child's habitual residence was more compelling than that cited by the Gitter and Poliero courts. First, and most significantly, the parties documented their shared intention in a Separation Agreement, which expressly contemplated that the child would live and attend school in New York with Respondent. Second, Respondent testified credibly that, after executing the Separation Agreement, her willingness to attempt a reconciliation in Italy was clearly premised on the understanding that, should the reconciliation prove unsuccessful, the parties would continue to abide by the terms of the agreement. Third, the evidence suggested that, even if the parties were to reconcile, Respondent still intended to send the child to kindergarten in New York. Finally, even during Respondent's time in Italy following the Separation Agreement, Respondent retained numerous connections to New York. Respondent maintained real estate and a law practice in New York. Additionally, she had only a New York drivers license and bank account. Respondent also kept the majority of her possessions in New York, including furniture, books, and clothing.

Neither Respondent nor the child had Italian passports and, on every trip to Italy, entered as tourists on 90-day visas. Thus, the evidence overwhelmingly demonstrated that, following the execution of the Separation Agreement, the parties never shared an intention to make Italy the child's habitual residence.