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In Johnson v Johnson, 2011 WL 569876 (S.D.N.Y.) the District Court
denied Petitioner's application for the return of JJ to Italy because
Petitioner had not shown by a preponderance of the evidence that
Vicenza, Italy was JJ's habitual residence pointing out that Petitioner
and his counsel stated in court papers they filed in Florida in December
2010 that JJ was "temporarily" living with Col. Johnson and his wife in
Italy. Moreover, even if such a showing were made, JJ, a mature,
independent, intelligent and clear young man who, in the Court's view,
had not been coached, objected to returning to Italy to live with his
father.
Petitioner contended that wrongful removal occurred on November 6, 2010
when Respondent removed JJ to Monroe, New York from Vicenza, Italy where
the family had been living since August 2008 on a U.S. army base.
Petitioner was a colonel in the U.S. Army and was in combat in
Afghanistan on November 6, 2010. On November 10, 2010, Respondent, an
American citizen, filed a petition in New York State Family Court,
Orange County seeking custody of JJ and obtained, on or about November
16, 2010, an order directing that "the minor child [JJ] shall not be
removed from Orange County"; on or about December 15, 2010, Respondent
also commenced a divorce proceeding in New York State Supreme
Court, Orange County. On December 14, 2010, Petitioner, also an American
citizen filed a divorce proceeding in the Circuit Court of the Twelfth
Judicial Circuit, Sarasota County Florida. In these proceedings
Petitioner's counsel stated: "The child [JJ] had been temporarily living
with Colonel Johnson and his Wife on the American Army base in Vicenza,
Italy from August 2008 through November 6, 2010."
On February 4, 2011, the parties stipulated that Petitioner "had custody
rights under applicable law over the parties' son, JJ, at or about the
time of his removal from Vicenza, Italy, on November 6, 2010"; and that
"those rights of custody were actually being exercised, or would have
been exercised but for the removal of JJ from Vicenza, Italy."
The Court held that Petitioner failed to establish by a preponderance of
the evidence the "habitual residence" element set forth in the Hague
Convention, as interpreted by the Second Circuit in Gitter v Gitter, 396
F.3d at 130-31. The evidence did not show that Vicenza, Italy was JJ's
habitual residence as Petitioner contended. And even if, arguendo,
habitual residence had been shown, the Age and Maturity Exception (and
possibly also the Consent Exception) would warrant denial of the
Petition.
Petitioner argued that Italy was JJ's state of habitual residence." He
contended that "in or about July 2008, our family took as many of our
belongings as we could with us and moved permanently [from Newport,
Rhode Island] to Vicenza, Italy"; JJ was "enrolled in schools [t]here,"
"became involved in social and
extra-curricular activities [t]here," "has friends [t]here"; and "JJ did
not spend any significant periods of time outside Italy" in the last two
years (i.e., prior to November 2010). Respondent countered that
Petitioner's transfer "to Vicenza for a tour of duty ... was anticipated
to last for a period of only two years," i.e., that the Petitioner and
Respondent's shared intent was not that Vicenza was their son's habitual
residence; the Johnsons, including JJ, retained significant U.S.
contacts and had no shared intent to abandon the U.S.; a child such as
JJ "does not acclimatize to [foreign] life [on a military base] because
he spen[ds] the vast majority of his time (including his schooling) on
the base"; "for the last 20 years [the family] resided in assigned
quarters on [U.S.] military posts [in the United States]"; Petitioner's
"successor as a brigade commander was named in April 2010, so we knew
then that our stay in Italy would not extend beyond July
2011, and as late as October 2010 we discussed where his next assignment
would likely be"; and "Petitioner instituted divorce and custody
proceedings in America . [Florida]."
The Court held that Petitioner had not shown that the parties' shared
intent was that Vicenza, Italy was JJ's habitual residence. Nor had
Petitioner shown that JJ had acclimatized to Italy. It listed a series
of factors that militate against a finding that Vicenza, Italy was JJ's
habitual residence. The court concluded that the case law supported the
conclusion that Vicenza, Italy was not JJ's habitual residence. (Citing
e.g., Daunis v. Daunis, No. 06 Civ. 710 (D.Ct. July 6, 2006) (where
petitioner, a Navy technician based in Italy, claimed that his
children's habitual residence was a military base in Naples, Italy,
filed divorce and custody
proceedings in the United States, and issued "early return" orders for
family (all U.S. citizens) to return to U.S.); Holder v. Holder, 392
F.3d 1009, 1011 (9th Cir.2004) (a family's short term residence on an
American military base in Germany did not render Germany the children's
habitual residence where father made
contradictory sworn statements in state proceedings); Heydt-Benjamin v.
Heydt-Benjamin, No. 10 Civ. 881 (S.D.N.Y. Mar. 15, 2010); Ordonez v.
Tacuri, No. 09 Civ. 1571, 2009 WL 2928903, at *5 (E.D.N.Y. Sep. 10,
2009.
Because the Court dismissed Petitioner's claim under the Hague
Convention, it declined to exercise supplemental jurisdiction under 28
U.S.C. 1367 to consider any claims brought under the New York Domestic
Relations Law. (Citing e.g., Cave v. E. Meadow Union Free Sch. Dist.,
514 F.3d 240, 250 (2d Cir.2008).
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