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Emiliano Ermini v. Viviana Vittori

April 19, 2013

EMILIANO ERMINI, PLAINTIFF,
v.
VIVIANA VITTORI, DEFENDANT.



The opinion of the court was delivered by: Laura Taylor Swain United States District Judge

MEMORANDUM OPINION AND ORDER

Emiliano Ermini ("Petitioner"), an Italian citizen, petitions the Court, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. ("ICARA"), seeking the return of his two sons to Italy. The Court has jurisdiction of this matter pursuant to 42 U.S.C. § 11603(b). Petitioner alleges that the two boys, E.E., age 9, and D.E. age 7,*fn1 who are Italian citizens, have been retained in the United States by their mother, Respondent Viviana Vittori ("Respondent"), also an Italian citizen, without Petitioner's consent since approximately April 2012.

Petitioner filed this petition on August 9, 2012, expedited discovery and trial preparation took place in December 2012 and January 2013, and the Court conducted a bench trial in this case from January 28, 2013 until January 30, 2013. Petitioner testified and called six witnesses during his case-in-chief: Respondent; Mario Russodivito (the owner of an Italian restaurant in Suffern, New York in which Petitioner had considered investing); Dr. Nicola Antonucci (a psychiatrist who has treated D.E. in Italy); E.E.; Enzo Ermini (Petitioner's father); and Eloisa Ermini (Petitioner's sister). Respondent testified during her case-in-chief and called two other witnesses: John Tempesta (Respondent's first cousin and a family friend) and Dr. Carol Fiorile (an American board-certified behavior analyst and expert in treating and educating autistic children). The Court interviewed E.E. in camera and on the record, but outside the presence of the parties and their respective counsel.

Following the bench trial, both parties submitted proposed findings of fact and conclusions of law and replies to each other's submissions. The Court has considered carefully the parties' submissions and arguments. In accordance with Federal Rule of Civil Procedure 52(a), this Opinion constitutes the Court's findings of fact and conclusions of law. To the extent any finding of fact includes conclusions of law it is deemed a conclusion of law, and vice versa. For the following reasons, the petition is denied.

FINDINGS OF FACT

Petitioner and Respondent, the parents of E.E. and D.E., began co-habiting in 2001, and were married in Italy in July 2011. (Tr. 25:6-11). Respondent has initiated divorce proceedings in Italy and the parties are now legally separated. In Italy, Petitioner worked as an Administrative Manager for a company called T-Line SRL until September 2011 (Tr. 257:24-258:25), while Respondent worked for IKEA in Rome, Italy (Tr. 33:18-34:5). Respondent is still an employee of IKEA's Rome facility, although she was on paid family leave at the time of trial. (Tr. 34:2-5.) E.E. attended public school in Italy up until the second grade (Tr. 27:8-11), while D.E. attended day care and preschool in Italy. (Tr. 28:4-5; 29:1-2). The family came to the United States in August 2011 in connection with efforts to secure effective medical and rehabilitative treatment for D.E., who is autistic.

D.E.'s Autism and Treatment

D.E. was diagnosed with autism on March 14, 2008, when he was approximately two years old. (Tr. 352:11-15.) Petitioner and Respondent were both committed to helping D.E. and took him to various doctors in Italy as well as abroad in Scotland for medical treatment. (Tr. 155:24-156:5; 356:11-25.) Petitioner even considered relocating to Edinburgh. (Tr. 156:2-5.) When Petitioner and Respondent's own resources were inadequate to pay for the treatments, they solicited donations through a website and a blog about D.E. (Tr. 264:1-14.) Dr. Antonucci was D.E.'s primary treating professional in Italy from December of 2008 until May of 2010. (Tr. 139:17-21.) One of the treatments that Dr. Antonucci recommended for D.E. was hyperbaric oxygen therapy, which was eventually administered in a hyperbaric chamber installed in the family home in Velletri, Italy. (Tr. 123:4-5; 64:23-25.) He also treated D.E. for gut inflammation, heavy metal intoxication and viral issues believed to be underlying physical causes of autism. (Tr. 122:4-123:11.)

D.E.'s "support teacher" at his school in Italy did not know any specific techniques for treating children with autism. On their own initiative, Petitioner and Respondent attended training in Applied Behavioral Analysis ("ABA") techniques at a private institution, Pianeta Autismo, and Respondent attended three additional courses. (Tr. 353:20-354:5.) With the permission of the principal of D.E.'s school, Respondent spent two hours each day at D.E.'s school, instructing the support teacher in the ABA techniques. (Tr. 357:11-358:2.) Petitioner and Respondent also consulted with another doctor in Italy, Dr. Claudia Lerz, to develop an ABA treatment plan for D.E. (Tr. 355:7-17.) According to Respondent's expert, Dr. Fiorile, ABA therapy is "the most common treatment" for children with autism in the United States (Tr. 389:10-11) and it can have an enormous impact on the life of an autistic child (Tr. 389:13-19). Dr. Antonucci also endorses ABA treatment. (Tr. 118:21-119:8.) Respondent estimates that she personally provided 70-80% of D.E.'s thirty to forty weekly hours of ABA treatment while the family were living in Italy. Professional ABA treatment would have been preferable but very expensive. (Tr 353:2-355:6.) The Italian national health care system covered 90 minutes a week of psychomotility therapy for D. E. for the first year after his autism diagnosis, with an extra 90 minutes of speech therapy during the second year, but did not pay for other types of treatment or therapy for D.E. (Tr. 352:20-353:5.)

Both Respondent and Petitioner were unhappy with the options for D.E.'s schooling and therapy in Italy as they did not see results in D.E.'s developmental progress.*fn2

They began to look elsewhere for treatment options, and in October of 2009, the family traveled to Florida for a week, at the recommendation of Dr. Antonucci, to consult with an American doctor about therapies available for D.E. in the United States. (Tr. 38:1-8; 124:16-21, 155:2.) Exploration of Treatment Options in the United States

In April or May of 2010, Petitioner and Respondent met Dr. Giuseppina Feingold in Italy. (Tr. 357:7-17.) Dr. Feingold is an Italian-speaking pediatrician with a practice in Suffern, New York, who focuses on children with special needs. In August of 2010, Petitioner and Respondent traveled with E.E. and D.E. to Suffern, New York, so that Dr. Feingold could assess and begin treating D.E. (Tr. 209:7-10; 302:20-303:2.) The family stayed with Respondent's first cousins, John and Patricia Tempesta, at their home in Ridgefield, Connecticut. (Tr. 300:15-24.) During that August 2010 visit, they met other parents at Dr. Feingold's clinic, who told them about provisions for special needs children at the local schools in the Suffern area. (Tr 358:23-359:5.) Both Respondent and Petitioner were impressed by the treatment options available for D.E. in the United States. (See, e.g., Tr. 328:24-329:2.)

Around this time, Petitioner and Respondent began to formulate a plan for the family to move to the United States for two or three years, during which time Petitioner and Respondent could decide if it would be possible and appropriate to make a permanent move to the United States. (See Tr. 328:18-21(Respondent) ("we had planned to stay three years in the United States. But we also discussed that if we felt comfortable here and if the children felt comfortable here, and especially [D.E.], that we might stay permanently"); Trial Ex. C. (Oct. 4, 2010, Email from Petitioner to Mr. Tempesta) ("[t]he most important years for [D.E.] are the next 2-3 years and in them I would like to successfully try all possible treatments. . . . For the time being, plans would be to stay for 2-3 years, but I think that if we succeed in coming, and we're able to stay 3 years I don't think we'll leave afterwards, but it is too early to decide this").) Petitioner asked Mr. Tempesta to send Petitioner's curriculum vitae out to one of Mr. Tempesta's associates to see what positions might be available in the United States and to look into a place to live for the family. (Tr. 306:11-14; 307:23-308:18.) Petitioner also asked Mr. Tempesta about schools for E.E. and D.E. (Trial Ex. B.; Tr. 310:18-311:9) and about various visa options, including potentially applying for a green card (Tr. 315:1-12). In December of 2010, the family returned to the United States so that D.E. could undergo additional treatment with Dr. Feingold and again stayed with the Tempestas. (Tr. 41:6-8; 209:7-10.) Petitioner returned to Italy after three weeks and Respondent returned with the children another two or three weeks after that. (Tr. 155:11-18; Tr. 313:5-7.)

Meanwhile, Petitioner began meeting with Marcello Russodivito, to whom he had been introduced through one of Mr. Tempesta's contacts, about potentially investing in Mr. Russodivito's restaurant so that he could obtain a business visa for himself and derivative ones for his family, which would allow them to pursue treatment for D.E. in the United States. (Tr. 88:22-89:4, 97:23-98:14.) Mr. Russodivito understood that Petitioner planned to fund the restaurant investment by selling the family's house in Italy. (Tr: 102:8-13.)

The Court finds, based on the credible testimony, that Petitioner and Respondent intended to move to the United States as a family for a period of two to three years, during which time medical and rehabilitative treatments would be pursued for D.E., and also agreed that it was possible that the move would be made permanent at the end of the three-year period, circumstances permitting. Notwithstanding the plan to sell their house in Italy to fund the restaurant investment, there was no agreement to abandon the family's ties to Italy.

The Move to the United States

The family returned to the United States in August 2011 and, on September 2, 2011, Petitioner and Respondent co-signed a one-year lease for a house near Mr. Russodivito's restaurant. (Tr. 336:20-23; 341:2-11.) On September 15, 2011, Respondent, E.E. and D.E. moved into that house. (Tr. 341:11-14.) In October, Mr. Russodivito arranged for one of his employees, Pasquale Ruggiero, to share the house with them. (Tr. 341:12-22.) In September and November, E.E. and D.E. were enrolled in the local public schools. (Tr. 348:21-349:2; 358:12-14.)

Petitioner returned to Italy in September 2011 and gave notice that he was leaving his job. It was not clear from the testimony at trial whether he planned to quit his job permanently or to return after spending some time in the United States. In an email to Respondent at the time, Petitioner said that they should ship "books, clothing, any furniture we can't sell, ornaments, dishes, sheets, blankets" in a cargo container from Italy to the United States (Ex. N (Sept. 8, 2011, Email from Petitioner to Respondent)). Petitioner also researched the cost of shipping D.E.'s hyperbaric oxygen chamber. (Tr. 316:20-317:11, 252:21-23). On September 13, 2011, Petitioner wrote to the U.S. Consulate in Rome to apply for visas for himself and his family for the purpose of "explor[ing] the possibilities of entering into a business partnership with Mr. Marcello Russodivito who already owns an established Italian restaurant in the city of Suffern, NY. I also wish to request a B-2 visa for my wife and 2 children, who will accompany me in this trip to the United States." (Tr. Ex. 23 (Petitioner's Visa Application).) Respondent traveled with the two children to Italy to renew their United States visas in November 2011 and then the children and Respondent returned to Suffern, while Petitioner went to Italy to finish settling the family's affairs. Petitioner did not return to the United States until December 2011. (Tr. 345:4-5.) Petitioner again left for Italy in early January 2012, following an altercation with Respondent (see infra).

The two children have not left the United States since November of 2011, but Respondent left the country again in April 2012, to attend court proceedings in Italy. (Tr. 345:6-16.) On December 1, 2012, Respondent and the two children moved to their current residence in Suffern with Mr. Ruggiero. (341:17.) Petitioner never relocated to the United States.

Marital Problems and Domestic Violence Allegations; Court Proceedings

Petitioner returned to the United States in December 2011. The personal relationship between Petitioner and Respondent has been tempestuous for some time, and Petitioner expresses anger verbally and physically. Respondent and E.E. testified credibly that Petitioner has on many occasions been verbally abusive to Respondent and to the children, and that Petitioner is in the habit of striking the children on the back of the head, sometimes in what he believes is a playful manner and sometimes for discipline. According to Respondent, Petitioner would address E.E. as "[l]ittle turd, little piece of shit, you are a failure." (Tr. 351:3- 9). E.E. also testified that Petitioner would "yell" at and "insult" him and D.E. about "twice a day, every day." (Tr. 178:12-179:1.)

Respondent further testified that Petitioner "would hit [E.E.] on the nape, both when he deemed it to be just but also to just kid around . . ." (Tr. 351:10-16). E.E. confirmed that "[i]n Italy, when my father was in the house, I was tense because he, he like, whenever, I did something wrong or dropped a glass on the table, he would yell at me. And sometimes he would slap me like this for no reason [gesturing towards the back of his head]" (Tr. 177:5-8), and that the slap hurt at a pain range of "eight and a half" on a scale of one to ten. (Tr. 179:4-14). The contact caused pain to E.E. but there is no indication of lasting physical injury. Both Respondent and E.E. testified that Petitioner had also spanked D.E (Tr. 360:4-7), although E.E. said that this was infrequent and happened "almost never, once, twice, maybe like three times a month" (Tr. 194:10-12). Respondent testified credibly that Petitioner had hit her at least 10 times during the course of their relationship, and proffered somewhat vague testimony that one of the incidents had resulted in a medical diagnosis of the fracture of her finger. E.E. testified to having twice seen a bruise on his mother after incidents in which Petitioner had hit Respondent during fights in Italy, and that he had never seen his mother hit his father. (Tr. 196:10-197:1 Arguments between the two were frequent while the family was living in Italy.

The couple had a violent altercation in the kitchen of their Suffern residence on December 28, 2011. Respondent testified that Petitioner "grabbed" Respondent and "shoved [her] head on the kitchen cabinets" (Tr. 345:24-25) and then Petitioner tried to "suffocate [her] with [her] shirt" and "to strangle [her]." (Tr. 346:1-4.) This incident occurred in front of the children. E.E. testified credibly that he saw his father hold his mother's head and "bump it into a cabinet." E.E. "felt scared." (Tr. 194:15.) According to Respondent, Petitioner also "shut the two doors that led to the outside, and he said that if this had to be over, it was best if we all died" and "went towards the gas outlet to switch the gas on." (Tr. 346:7-10.) Respondent testified that she "had some bruises and some scratching around [her] neck and on [her] arms" and her "head hurt" as a result of this incident. (Tr. 73:5-7.) Petitioner denied at trial that he smashed Respondent's head against the cabinet, but did admit that he had a fight with Respondent on December 28, 2011, in Suffern. (Tr. 162:19-20.) After this incident, Respondent spent December 28 and December 29, 2011, in a nearby hotel, leaving the children at the house with Petitioner for that time (Tr. 368:10-17), and Petitioner left the United States to return to Italy alone on January 4, 2012. (Tr. 160:24-161:2.)

On February 6, 2012, Respondent reported the December 28, 2011, incident to the Suffern Court of Justice. Respondent testified credibly that she delayed making the complaint because she was worried and wanted to wait until Petitioner returned to Italy and because, based on Petitioner's threats in the past, she was concerned that Petitioner would stop providing financial support for Respondent and the children if she were to leave Respondent. (346:11-21.) On February 9, 2012, Respondent obtained a temporary order of protection from the local court for herself and the children, which ordered Petitioner to "stay away" from Respondent and the children and to refrain from communication, assault or other forms of physical abuse and also awarded Respondent temporary custody of the children through May 9, 2012. (Tr. 347:11, Ex. U, Family Court of Rockland County Temporary Order of Protection.) In February 2012, Petitioner received notice of this temporary order (Tr. 276:1-6) and, according to Respondent, began asking for the children to be returned to Italy (Tr. 347:9-19). Petitioner also stopped providing money to Respondent and the children. (Tr. 375:13-16.)

Petitioner testified at trial that he thought that the children were coming back with Respondent to Italy after they had finished school for that year, which was when their visas expired, but around April 2012, he realized that they were not returning. (Tr. 163:23-164:1.) This was confirmed on April 23, 2012, when Respondent came to Italy for the divorce proceedings and did not bring the ...


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