In this internationally flavored divorce and custody matter, a number of interesting and novel issues are presented for resolution.
Jeffrey Koons, the plaintiff, is an internationally recognized American artist whose work has been described as "rooted in the pop-minimal-conceptual tradition." In June 1991, in Budapest, Hungary, Koons married Ilona Staller, an Italian national who, under the stage name La Cicciolina, was a star of pornographic movies and books and sexually explicit shows. Her name and photograph are still used in connection with the advertising of pornographic pay-per-call telephone services, and she recently performed at a show in Ecuador, scantily clad and singing sexually explicit lyrics. In 1987 she was elected to serve as a member of the Italian Parliament.
Before the marriage in early 1991, Koons and Staller collaborated on a series of sexually explicit photographs of the couple used by Koons to create sexually graphic works of art which were displayed in museums and galleries. Notwithstanding their mutual participation in creating such artwork, Koons states that as a condition to the June 1991 marriage Staller swore that "she would never again engage in pornography or participate in the commercial sex industry."
Staller had difficulty obtaining a visa to enter the United States because of her professional activities, and the parties resided in Munich, Germany, during the first year of the marriage. Just prior to the birth of their son, Staller obtained a non-immigrant visa (this type of visa is temporary and does not allow an alien to remain in the United States indefinitely). The parties' son, Ludwig Maximilian Koons, was born in New York City on November 29, 1992. They live in Koons' three-story 13-room townhouse on Manhattan's East Side, and have travelled in the United States and to Europe.
The parties' three-year marriage was tumultuous, marked by a pattern of marital disagreements and separations. On two occasions, in March 1992 and January 1993, Staller left their residence in Munich, Germany and returned to her apartment in Rome, Italy. She states that her departure on those occasions was precipitated by arguments during which Koons physically or verbally abused her. Each time they subsequently reconciled.
In October 1993, Staller again left New York for Italy. Her departure was not surreptitious. She explains,
Renovation work was needed on my apartment there, and I hoped that perhaps, with distance, plaintiff and I could sort out our problems.
As she had done on one previous separation, she returned the keys to the apartment to Koons. After she left, Koons wrote and asked her to return to New York with Ludwig. She declined, explaining that the renovation work was proceeding slowly, and asked him to join them in Rome.
Koons states that in December 1993, he learned that Staller had left Rome to appear in Ecuador, South America as La Cicciolina, and that Ludwig had been left in the care of a babysitter/housekeeper. Koons flew to Rome and when the housekeeper refused to allow him to leave Staller's house with Ludwig, he called the Italian police. On December 22, 1993, an ex parte petition was filed by his Italian counsel with the Minor's Tribunal of Rome, alleging that Ludwig had been left in the care of a "foreign girl." That petition contained many of the same allegations set out in the complaint in this proceeding, i.e., that Ludwig was exposed to pornographic objects and pictures, and that individuals who were part of the Italian pornography industry were frequent visitors to the apartment. It described Ludwig as being "in a condition of medical and moral abandonment" as a result of his mother's actions. Koons requested temporary custody of Ludwig.
On December 23, 1993 the Minor's Tribunal issued its decision. Finding no basis to grant Koons temporary custody because there was "no evidence of any immediate risk," the Minor's Tribunal ordered an investigation into the allegations. Koons was, however, granted visitation. The Minor's Tribunal ordered that Ludwig's passport not be used and enjoined Koons from taking him out of Rome.
After this decision, Koons went to Staller's apartment and asked to take Ludwig to his hotel. Staller (who had by then returned from Argentina) called the police and was assured that the decree was in order. She allowed Koons to leave with Ludwig. Koons, using a duplicate passport for Ludwig, obtained by stating that the original was "lost," took him to New York in clear violation of the decree issued by the Minor's Tribunal.
Koons then immediately commenced this divorce action and moved for an order granting him ...