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Guzzo v. Cristofano

United States Court of Appeals, Second Circuit

June 11, 2013

Gerardo Guzzo, Petitioner-Appellant,
v.
Luisa Maria Cristofano, Respondent-Appellee.

Submitted: January 28, 2013

The Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"), opened for signature Oct. 25, 1980, T.I.A.S. No. 11, 670, and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq., generally require courts in the United States to order children returned to their countries of "habitual residence" if those children have been wrongfully removed to, or retained in, the United States. See Chafin v. Chafin, 133 S.Ct. 1017, 1021 (2013). This appeal asks whether a child was "habitually resident" in Italy within the meaning of the Hague Convention and ICARA. As we explain, the Hague Convention uses the terms "habitual residence" and "habitually resident" in a practical way, referring to the country where a child usually or customarily lives. The term is not equivalent to the American legal concept of "domicile, " which relies principally on intent. Nonetheless, when parents move temporarily to another country, without agreeing to change the child's principal place of residence, a petitioner claiming that the new location has become the child's "habitual residence" must show that the child has "acclimated" to that country. Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005). The petitioner in this case failed to show that the parents agreed to settle in Italy, and he did not attempt to show that the child had acclimated there. Accordingly, the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) properly denied the petition for return of the child.

Gerardo Guzzo, pro se, Scario, Italy, for Petitioner-Appellant.

Jeremy D. Morley, Law Offices of Jeremy D. Morley, New York, NY, for Respondent-Appellee.

Before: Cabranes, Wesley, and Livingston, Circuit Judges.

José A. Cabranes, Circuit Judge:

The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or "Convention"), opened for signature Oct. 25, 1980, T.I.A.S. No. 11, 670, and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq., [1] generally require courts in the United States to order children returned to their countries of "habitual residence" if those children have been wrongfully removed to, or retained in, the United States. See Chafin v. Chafin, 133 S.Ct. 1017, 1021 (2013). This appeal asks whether a child was "habitually resident" in Italy within the meaning of the Hague Convention and ICARA. As we explain, the Hague Convention uses the terms "habitual residence" and "habitually resident" in a practical way, referring to the country where a child usually or customarily lives. The term is not equivalent to the American legal concept of "domicile, " which relies principally on intent. See note 5, post. Nonetheless, when parents move temporarily to another country, without agreeing to change the child's principal place of residence, a petitioner claiming that the new location has become the child's "habitual residence" must show that the child has "acclimated" to that country.[2] Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005). The petitioner in this case failed to show that the parents agreed to settle in Italy, and he did not attempt to show that the child had acclimated there. Accordingly, the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) properly denied the petition for return of the child.

BACKGROUND

i.

Petitioner-appellant Gerardo Guzzo (the "Father") is an Italian citizen and resident of Scario, Italy, and respondent-appellee Luisa Maria Cristofano (the "Mother") is a United States citizen and resident of New York. They met in September 2005 onboard a flight from New York to Italy and began visiting each other regularly and discussing the prospect of marriage. In January 2006, the Mother discovered that she was pregnant. She soon visited the Father in Italy, where they resumed discussions about whether to get married in New York or Italy. The Father and Mother eventually agreed to marry in New York while maintaining their respective residences in Italy and New York.

In September 2006, their child was born. Based on the evidence presented at trial, the District Court found that from 2006 to 2007 the parties maintained their "bi-continental marriage, " each parent visiting the other on numerous occasions, and in December 2007 the parties agreed that the Mother and the child would live primarily in Italy with the Father but return periodically to New York. During this time, however, the parents' relationship became increasingly tumultuous. In February 2009, the Mother took the child to New York and told the Father that she wanted a separation.

Over the next few months, the parents negotiated a separation agreement (the "Separation Agreement"), which the Mother signed in English on May 20, 2009, and which the Father signed in Italian on June 10, 2009. As relevant here, the Separation Agreement provided that the parents would "'continue to live separate and apart, '" that the Mother would "'have custody[ ] of the minor child, '" and that the child would attend school at the Good Counsel Academy in White Plains, New York. Guzzo v. Cristofano, No. 11 Civ. 7394 (RJS), 2011 WL 6934108, at *2 (S.D.N.Y. Dec. 30, 2011) (quoting the Separation Agreement). The Separation Agreement also established a visitation schedule, which provided that the child would spend at least two months each year in Italy with the Father.

Soon after signing the Separation Agreement, the Mother returned to Italy with the child. As the District Court explained, the Mother "testified that her trip to Italy was undertaken as an attempt at reconciliation with [the Father], but that she was only willing to make the attempt because she had the protection of the Separation Agreement." Id. at *3. The Mother 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." Id. With only intermittent vacations, including several trips to New York, the child continued to live in Italy, where he attended nursery school.

In November 2010, the Mother took the child to New York with the intention of not returning to Italy. The following month, the parents agreed to make another attempt at reconciliation, and the Mother moved back to Italy in January 2011 with the child. The effort was unsuccessful. In August 2011, the Mother returned with the child to New York, where they have lived ever since. The Mother also initiated divorce proceedings in Westchester County, New York.

ii.

The Father initiated this action under the Hague Convention in October 2011, alleging that the Mother had wrongfully removed the child from Italy in August 2011. The District Court held a three-day bench trial in November 2011. The next month, the District Court denied the petition, concluding that the Father had not proved by a preponderance of the evidence that Italy, rather than the United States, was the child's country of "habitual residence." Guzzo, 2011 WL 6934108, at *4.

The District Court began by restating our two-part test for determining a child's habitual residence. Id. at *5 (citing Gitter, 396 F.3d at 134). Under that test, a court must first "inquire into the shared intent of those entitled to fix the child's residence . . . at the [last] time that their intent was shared." Gitter, 396 F.3d at 134. If a court concludes that the parents did not intend to change a child's habitual residence, it then must assess "whether the evidence unequivocally points to the conclusion" that the child has acclimated to the new location, notwithstanding the parents' intentions. Id. The District Court noted that the Father had rested his petition entirely on the first prong, arguing that the parents had agreed to ...


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