Guzzo v. Cristofano

• Decision Date: 11 June 2013
• Docket Number: Docket No. 12–74–cv.
• Citation: 719 F.3d 100
• Parties: Gerardo GUZZO, Petitioner–Appellant, v. Luisa Maria CRISTOFANO, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

719 F.3d 100

Gerardo GUZZO, Petitioner–Appellant,

v.Luisa Maria CRISTOFANO, Respondent–Appellee.

Docket No. 12–74–cv.

United States Court of Appeals, Second Circuit.

Submitted: Jan. 28, 2013.

Decided: June 11, 2013.

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, ––– U.S. ––––, 133 S.Ct. 1017, 1021, 185 L.Ed.2d 1 (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.²Gitter 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 change the child's habitual residence to Italy; he had explicitly abandoned any argument that the child had acclimated to life in Italy. See Guzzo, 2011 WL 6934108, at *5 n. 2.

Based on the evidence presented at trial, the District Court determined that the parents' Settlement Agreement in 2009 exhibited their last shared intent regarding the child's usual residence. Although the Mother had moved to Italy with the child after signing the agreement, and had attempted to reconcile with the Father, the Court found “no evidence that the attempted reconciliation, in and of itself, altered the [Settlement] [A]greement in any way.” Id. at *6. The Court also found the Father's testimony that the parents reconciled in June 2009 and formed a new shared opinion that the child would live in Italy to be “not credible.” Id. at *7. As the Court explained:

[The Father] made no mention of the alleged conversations in which the parties reached a new agreement about where the child should be educated in any of his pretrial affidavits, memoranda of law, or proposed findings of facts and conclusions of law. Indeed, [the Father] has put forward no evidence of any kind to corroborate his testimony on this issue, despite the abundance of e-mails and letters between the parties that were produced. Put simply, the Court finds [the Father's] assertion of a new “mutually shared intent” to educate the child in Italy to be a wholesale fabrication designed to meet the legal standard established by the Second Circuit in Gitter.

Id. The Court further concluded that “[d]espite the parties' apparently sincere attempts at reconciliation, the evidence demonstrates that [the Mother] never contemplated spending her life in Italy or having the child attend Italian schools following preschool.” Id.

With respect to the child's attendance at nursery school in Italy, the Court found that the Mother had “testified credibly that, regardless of the outcome of the attempted reconciliation, she intended to send the child to kindergarten in New York.” Id. For instance, the Mother home-schooled the child in English “in order to prepare him for school in the United States.” Id. She also retained ties to New York, by keeping her property there, and by “continu [ing] to perform work for New York clients and [to] collaborate with attorneys in New York.” Id. at *8. The Mother also refused to register her marriage with Italian authorities, which would have enabled her to obtain Italian public health insurance. And the child “did not have Italian medical insurance, but rather was insured through Medicaid and received his primary medical treatment in the United States.” Id. After reviewing the relevant case law, the Court concluded that “the evidence overwhelmingly demonstrates that, following the execution of the Separation Agreement, the parties never shared an intention to make Italy the child's habitual residence.” Id. at *9. Accordingly, the District Court held that the Father had not established that the child's habitual residence was Italy, and denied the petition for return of the child.

This appeal followed.

DISCUSSION

A. Legal Framework

i.

“The Hague Convention on the Civil Aspects of International Child Abduction generally requires courts in the United States to order children returned to their countries of habitual residence, if the courts find that the children have been wrongfully removed...