The opinion of the court was delivered by: William H. Pauley III, United States District Judge.
Petitioner Fabio Armiliato filed this petition pursuant to the Hague
Convention on the Civil Aspects of Child Abduction (the "Convention"), as
implemented by the International Child Abduction Remedies Act ("ICARA"),
42 U.S.C. § 11601 et seq., seeking an order requiring his wife Irena
Zaric-Armiliato to return their child Alessandra to Italy. On February
14, 2001, this Court commenced a plenary hearing to determine whether
Ms. Zaric-Armiliato wrongfully removed Alessandra from Italy.*fn1
For the following reasons, this Court grants the petition.
Mr. Armiliato is a world-renowned opera tenor and an Italian citizen.
He was born in Genoa, Italy and most of his family still resides there.
Since 1996 Mr. Armiliato has maintained a residence for tax purposes in
Monaco. (Tr. 241.)
In 1992, he met Irena Zaric-Armiliato, who is also an opera singer,
while they were performing "Carmen" in Spain. (Hearing Transcript ["Tr."]
444.) They were married a year and one-half later in Genoa, Italy. (Tr.
Alessandra, the couple's only daughter, was born in Genoa, Italy on
March 25, 1994. She is a citizen of Italy and her primary language is
Italian. (Tr. 103, 105.) Like her mother, Alessandra has both Italian and
Serbian passports. Her Italian passport identifies her domicile as
Genoa, Italy and her Serbian passport, which was obtained on February
17, 2000, identifies her domicile as Belgrade, Serbia. (Tr. 517.)
None of the parties or any member of their families is an American
citizen or domiciled in the United States. Mr. Armiliato was the primary
financial provider for the family while Ms. Zaric-Armiliato was the
primary child-care provider. Although Mr. Armiliato's professional
commitments were demanding, he cared for his daughter Alessandra when his
schedule permitted by, among other things, taking her to doctors'
appointments, restaurants, parks and musical performances. (Tr. 203-04.)
Mr. Armiliato's operatic obligations require him to travel frequently
all over the world. Since Alessandra's birth, Mr. Armiliato has rarely
stayed for more than one month in any location. Until Alessandra turned
six and was required by Italian law to attend school, she and Ms.
Zaric-Armiliato often traveled with Mr. Armiliato when he had engagements
of more than a week. Their travels reached a crescendo in 1999.
From March 4th through April 6th of that year, Mr. Armiliato shuttled
between Hamburg, Germany and Genoa, Italy while Ms. Zaric-Armiliato and
Alessandra stayed in Genoa. On April 7th, the family traveled to
Baltimore, Maryland where Mr. Armiliato had an extended engagement. On
May 4th, the family went to New York City where they stayed for five
days. On May 10th, Mr. Armiliato traveled to Montreal, Canada. Ms.
Zaric-Armiliato and Alessandra joined him in Montreal on May 26th where
they remained until June 13th. Then, they flew to Genoa, Italy where Mr.
Armiliato rested for five days before he traveled to Vienna, Austria for
a week. Ms. Zaric-Armiliato and Alessandra remained in Genoa where Mr.
Armiliato rejoined them on June 28th.
Three days later, the family went to Verona, Italy where Mr. Armiliato
performed "Aida" for three weeks. They returned to Genoa for three days at
the end of July before traveling together to Buenos Aires, Argentina
where they remained until August 14th.
On August 15th, the family returned to Genoa for three days. Then, Mr.
Armiliato and Alessandra went to Verona, Italy for several days while
Ms. Zaric-Armiliato traveled to Belgrade, Serbia. The family was reunited
in Genoa on August 27th. (Pet.'s Ex. 9.) Alessandra's repeated return to
Genoa, Italy is the recurring theme throughout her peripatetic
adventures. (Pet.'s Exs. 9 & 10.) Even in her earlier years when
Alessandra traveled less frequently, she spent more time in Genoa than
any where else. (Pet.'s Exs. 9 & 10.)
When the family traveled, both parents tried to maintain continuity in
Alessandra's life. For example, they arranged for her to receive medical
care in each country, and paid for her to attend classes at an
Italian-American school when she was in New York, which her parents paid
for by the week.
In 1994 and 1995, Mr. Armiliato performed several times in New York,
Philadelphia, Palm Beach and San Francisco. (Pet. Ex. 10: Armiliato
itinerary; Tr. 214.) Those performances left him with a financial
windfall which he invested in an apartment in New York City. (Tr. 214.)
Ms. Zaric-Armiliato loaned her husband some of the down payment, but the
apartment is only in Mr. Armiliato's name. (Tr. 216.)
The family stayed in Mr. Armiliato's New York apartment whenever he
performed in New York City. (Tr. 217.) He also periodically rented the
apartment to friends. Although he stated on his mortgage loan that he
would use the property as his principal residence for at least one year,
he did not. (Tr. 273.) Rather, he declared himself a non-resident on his
United States tax returns and the apartment in Genoa as his permanent
residence. (Tr. 230, 233.)
In 1997, the Armiliatos experienced marital difficulties. However,
after seeing a marriage counselor they eventually reconciled. (Tr.
Also that year, Mr. Armiliato's career blossomed in the United States.
He was engaged frequently by the Metropolitan Opera in New York City and
the San Francisco Opera. The opportunity to work more regularly with the
Metropolitan Opera developed at that time. (Tr. 239.) Before he could
perform in the United States Mr. Armiliato had to obtain a work visa for
each engagement, a cumbersome task that was often not completed until the
day of the performance. (Tr. 237.) On the advice of his manager, Mr.
Armiliato decided to apply for a green card for persons with "special
talents." The green card would permit him to live abroad but perform in
the United States without having to apply repeatedly for work visas. Mr.
Armiliato also believed it would decrease his tax liability. However,
Mr. Armiliato never intended to make the United States his permanent
residence. (Tr. 246.) Ms. Zaric-Armiliato did not apply for a green card
independently.*fn3 She understood that if Mr. Armiliato obtained the
green card he could request that similar privileges be extended to his
family. In late 1999, irreconcilable differences again fractured the
Armiliatos' marital relationship.
The following year, Mr. Armiliato indefinitely postponed the requisite
interview with the American government concerning his application for a
green card. The effect was to suspend the processing of his application.
(Tr. 245-46.) By that time, the negotiations with the Metropolitan Opera
had collapsed and Mr. Armiliato's professional focus shifted to Europe.
In late August 2000, petitioner and respondent separated. (Tr. 360.)
Mr. Armiliato ultimately moved into his parent's apartment while Ms.
Zaric-Armiliato resided in ...