Opinion
Index No. EF2023-71302
08-12-2024
In the Matter of Luisa JJ., Petitioner, v. Joseph II., Respondent. (Proceeding No. 1.) In the Matter of JOSEPH II., Petitioner, v. LUISA JJ., Respondent. (Proceeding No. 2.)
Gregory V. Canale, Queensbury, for petitioner-respondent. Green Kaminer Min & Rockmore LLP, New York City (Michael Banuchis of counsel), for respondent-petitioner. Pamela M. Babson, Saratoga Springs, Attorney for the Child.
Unpublished Opinion
The within proceedings were commenced in Warren County. There appears, however, to have been confusion over whether they were venued there or in Washington County. This confusion appears to arise from an error by a prior assigned acting justice of this court who is assigned to Washington County and before whom a related divorce action between the parties was proceeding in Washington County, which resulted in said acting justice captioning this case for Washington County. This error appears to have been perpetuated in later filings and throughout the appellate proceedings via which the case arrived at this court (see Matter of Luisa JJ. V Joseph II., 219 A.D.3d 1628 [3d Dept 2023]). This court has now confirmed that all filings in these proceedings, including the order that was appealed and reversed, is on file with the Warren County Clerk under the above-captioned index number, and that nothing pertaining to these proceedings is on file with the Washington County Clerk.
Gregory V. Canale, Queensbury, for petitioner-respondent.
Green Kaminer Min & Rockmore LLP, New York City (Michael Banuchis of counsel), for respondent-petitioner.
Pamela M. Babson, Saratoga Springs, Attorney for the Child.
Martin D. Auffredou, J.
Petitions (1) by petitioner-respondent Luisa JJ. (hereinafter "the mother") for return of the subject child to Italy pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-a); and (2) by respondent-petitioner Joseph II. (hereinafter "the father"), requesting that this court exercise temporary emergency jurisdiction under Domestic Relations Law § 76-c.
The facts and history of this case are more fully recited in the memorandum and order of the Appellate Division, Third Department, dated and entered September 21, 2023 (see Matter of Luisa JJ. V Joseph II., 219 A.D.3d 1628 [3d Dept 2023], supra). In brief, the parties are the separated parents of a son (born in 2013). Prior to their separation, the parties' predominant place of residence was in New York State. When the parties separated in 2019, the mother took the child to live with her in her home country of Italy under an agreement whereby the child would initially reside primarily in Italy and visit with the father for periods of a couple months during summers and a few weeks around the holidays, but, starting July 1, 2022, would reside for six months of each year with each parent in that parent's home country. Shortly after returning to Italy, however, the mother sought to modify the agreement in order to accommodate the child's schooling, by, in essence, continuing the schedule that had been employed since she and the child moved to Italy. This prompted the father to commence a custody proceeding in this state in June 2020, which proceeding was ultimately dismissed by the Appellate Division, Third Department in November 2021 upon appeal from an order of this court (McKeighan, J.), entered in Washington County, upon said Court's finding that Italy was the child's home state (see Domestic Relations Law § 76 (1) (a); Joseph II. v Luisa JJ., 201 A.D.3d 43, 46-48 [3d Dept 2021]).
Meanwhile, the mother had commenced her own custody proceeding in Italy in June 2020. The claims in that proceeding were ultimately compromised in a custody agreement that the parties filed with the Italian court in November 2022. Under this agreement, the father's parenting time with the child was to continue to be limited to a couple months during summers and a few weeks around the holidays, and was thus substantially less than the six months that he would have enjoyed under the original arrangement. The November 2022 agreement was never finalized in the Italian court, however, due to the events that ensued shortly after its filing.
On December 11, 2022 the child arrived in New York State for the father's ordinary holiday parenting time. The father claims that, shortly after they began their trek from a New York City airport to the father's home in Washington County, the child disclosed to him that, beginning sometime in September 2022, a minor in Italy-later determined to be the nephew of the mother's boyfriend-had been touching the child's intimate parts above and below his clothing while the two were sharing a bed during several weekend sleepovers at the boyfriend's house. Based on this report, the father refused to return the child to Italy in January 2023 as called for under the operative custody agreement.
The mother, therefore, commenced proceeding number one herein, claiming that the child was wrongfully retained in New York State in violation of the Hague Convention on the Civil Aspects of International Child Abduction (1343 UNTS 89, TIAS No. 11670 [1980] [hereinafter "the Hague Convention"]). The father responded by asserting, as relevant here, two affirmative defenses, setting forth exceptions to the Hague Convention's general requirement that the child be promptly returned to his country of habitual residence-that "there is a grave risk that [the child's] return would expose [him] to physical or psychological harm or otherwise place [him] in an intolerable situation" and that "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [his] views" (Hague Convention art 13, 13 [b], 1343 UNTS at 101). The father also cross-petitioned in proceeding number two herein seeking the relief noted above. Supreme Court (Michelini, J.) determined the petitions without a hearing and, in an order that lacked findings of fact and conclusions of law, ordered that the child be returned to the jurisdiction of the Italian court in which the mother's custody proceeding was pending, without addressing the father's defenses/exceptions. On appeal, the Appellate Division, Third Department confirmed Supreme Court's implicit finding that Italy was the child's country of habitual residence but nonetheless reversed the order, finding that it was error to reject the father's defenses/exceptions without a hearing. The Court remitted the matter for a hearing on those exceptions and, after the immediately prior assigned acting justice recused himself from further proceedings, this court undertook to adjudicate the matter.
The court heard the matter over eight days of trial-conducted both in person and virtually in order to accommodate witnesses appearing remotely from Italy-on October 4, 2023, October 17, 2023, November 6, 2023, December 6, 2023, December 7, 2023, December 8, 2023, December 18, 2023 and December 19, 2023. The court conducted an in-camera interview with the subject child on January 4, 2024, and heard the oral summations of the parties on January 5, 2023. The parties and Attorney for the Child (AFC) also provided the court with written posttrial submissions, consisting of a Post-Trial Brief for Petitioner, dated April 1, 2024; Respondent's Proposed Findings of Fact and Conclusions of Law, dated April 1, 2024; the AFC's Trial Closing Statement, filed April 2, 2024; a Rebuttal Brief for Petitioner, dated April 8, 2024; and Respondent's Brief in Reply to Petitioner's Post Trial Brief, dated April 8, 2024. Upon consideration of the foregoing and upon all pleadings and proceedings heretofore had herein, decision upon the issues that are subject to adjudication pursuant to the Third Department's remittal of these proceedings to this court is hereby rendered as follows.
As the Third Department observed, "[t]he Hague Convention's 'core premise [is] that the interests of children in matters relating to their custody are best served when custody decisions are made in the child's country of habitual residence'" (Matter of Luisa JJ., 219 A.D.3d at 1631-1632, quoting Monasky v Taglieri, 589 U.S. 68, 72 [2020] [ellipsis and internal quotation marks omitted]; accord Hague Convention preamble, 1343 UNTS at 98; see Abbott v Abbott, 560 U.S. 1, 20 [2010]). As such, the Hague Convention compels the prompt return of a child to his or her country of habitual residence if he or she has been wrongfully removed or retained in another country (see Matter of Luisa JJ., 219 A.D.3d at 1632).
There are, however, certain exceptions to this requirement, and the father has pleaded two such exceptions, as previously noted herein. "The exceptions are construed narrowly so their application does not undermine 'the express purposes of the Convention'" (Tsai-Yi Yang v Fu-Chiang Tsui, 499 F.3d 259, 278 [3d Cir 2007], quoting Feder v Evans-Feder, 63 F.3d 217, 226 [3d Cir 1995]). "Additionally, even if the respondent meets his or her burden of proving the affirmative defense, the court retains the discretion 'to order the return of the child if it would further the aim of the Convention which is to provide for the return of a wrongfully removed child'" (Tsai-Yi Yang, 499 F.3d at 278, quoting de Silva v Pitts, 481 F.3d 1279, 1285 [10th Cir 2007] [internal citations omitted]).
Turning first to the so-called "grave risk exception," the father bore the burden at trial to establish, by clear and convincing evidence, that "there is a grave risk that [the child's] return would expose [him] to physical or psychological harm or otherwise place the child in an intolerable situation" (Hague Convention art 13 [b], 1343 UNTS at 101; see Matter Luisa JJ., 219 A.D.3d at 1631). In this country, sexual abuse is viewed as an intolerable situation to which returning a child would present a grave risk of psychological harm (see Matter of Luisa JJ., 219 A.D.3d at 1633). In considering the gravity of a risk presented by a child's repatriation, the court must consider "'not only the probability of harm, but also the magnitude of the harm if the probability materializes'" (id., quoting Van De Sande v Van De Sande, 431 F.3d 567, 572 [7th Cir 2005]).
The court finds that the father has not made the requisite showing that the child would be returned to a situation in which he is subjected to continued sexual abuse at the hands of the minor in Italy and would, thus, be returned to an intolerable situation there. Central to the father's claim is the allegation that the child told the mother about the abuse but she ignored him and caused him to continue to sleep in the same bed with the Italian minor, subjecting him to the minor's abuse. The mother testified in contradiction to this claim, emphatically maintaining that she had no idea what was transpiring between the child and the Italian minor, would have acted to protect the child had she known and, now that she knows, will not again place the child in a situation conducive to his being touched by the Italian minor.
Notwithstanding the child's claim that he informed the mother about the abuse, the court credits the mother's testimony on this point based upon her demeanor on the stand and because her testimony flowed logically and reasonably, was strongly corroborated by many others who testified at trial, including the father, and was not meaningfully contradicted. The mother was shown to have been extremely attentive to the child. The child's Italian school teachers described her as very involved. The father's stepmother described the mother as a "helicopter mom" who routinely placed the child's wants and needs above all else. There is compelling evidence, in the form of the father's text messages to the mother, that shows that the breakdown of their relationship was occasioned in large part by the father's perception that the mother paid too much attention to the child and not enough attention to him. The notion that the mother would ignore her son's pleas for help and knowingly return him to a situation in which he was being sexually abused is incompatible with the overwhelming credible evidence of her deep regard for the child and her highly attentive parenting approach. Indeed, the father, himself, testified at trial that he felt "pretty confident that [the child is] not going to sleep in the same bed again with" the Italian minor (Dec. 8, 2023 tr at 51).
That the mother continues to date her boyfriend, regards the Italian minor as a "sweet boy" and occasionally spends time with him does not compel a contrary conclusion. Nor does the court agree with the father that permitting two young boys to share a bed during a sleepover constitutes "dangerously poor judgment."
The court therefore finds that the child would not return to a per se intolerable situation in Italy. The factual basis for this finding also compels the conclusion that the probability that this harm will materialize is low. The court further observes that there is substantial indication in the record that, if the harm were to materialize, it would not be of great magnitude, insofar as whatever has already transpired between these two children-about which there remains some question-does not appear to have occasioned the child much harm. The child speaks freely about his desire to return to Italy, albeit on a custody and visitation schedule that appears to align with the father's desires, and even of his expectation that he will still see and play with the Italian minor, who was his fast friend before he left in December 2022. A court-ordered psychological evaluation of the child-the report of which was entered into evidence in trial-found that the child does not meet the criteria for post-traumatic stress disorder, and that he was more upset about the fact that he has been unable to spend equal time with his parents and his having lied about something-about what has yet to be disclosed-that he associates with his custody arrangement and the court proceedings surrounding it. The mother presented the court with photographic and audio-video evidence showing the two children playing together and interacting normally after the abuse was alleged to have begun. A psychological evaluation of the Italian minor that was commissioned by his mother through the Italian courts when word of her son's alleged conduct reached her and those courts concluded in so many words that his character and personality are not such as would indicate his propensity to harm others or engage in the type of conduct that he is alleged to have engaged in with the child.
In sum, while there is evidence of some sort of sexual encounter between the child and the Italian minor-to wit, the child's report-proof that the child would be returned to a situation in which it was probable that the encounters would recur, that they would be gravely harmful if they did and, in turn, that the situation to which the child would be returned in Italy would be intolerable fell short of the clear and convincing standard. Indeed, as noted, what exactly transpired between these two children remains largely unestablished and, in that regard, the court is troubled by the inconsistency between the father's claims as to the gravity of what occurred and the harm that was occasioned, on the one hand, and his conduct upon hearing the child's disclosure, on the other. The father's explanation for his four-day delay in reporting the abuse to authorities-needing to "allow [the child] to homogenize or come to equilibrium" after traveling; and needing to research "what's fact or fiction," which research involved his contacting his girlfriend, his "buddies" and his "lawyers" but tellingly did not involve asking the mother what she might have known about the situation-was uncompelling. Further, his contumacious refusal to heed the orders of the Italian courts, to the jurisdiction of which he had submitted himself, that required him to return the child to Italy, temporarily and in his custody, for evaluation in the context of the litigation pending there, combined with this lackluster efforts to obtain and maintain counseling for the child in the United States, tend to undermine the court's confidence in his position and willingness to credit his claims.
Turning next to the so-called "mature child exception," a court may order that a child not be returned to his country of habitual residence if "'the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [the child's] views'" (Matter of Luisa JJ., 219 A.D.3d at 1631, quoting Hague Convention art 13, 1343 UNTS at 101). Indicia of maturity include "'the child's age... [and] ability to express mixed feelings[ ] and... plan past obstacles"' (Matter of Luisa JJ., 219 A.D.3d at 1634, quoting Romero v Bahamonde, 857 F Appx 576, 583 [11th Cir 2021]).
The court finds that the father failed to carry his burden to establish this exception by a preponderance of the evidence. The court finds that the child is not mature enough that this court should take account of his views. To be sure, the child was described by his current teacher as slightly more mature than other kids his age and the psychologist who evaluated him also said that he acted older than his age, but even a mature 11 year old may not be sufficiently mature for the application of the exception (see Tsai-Yi Yang, 499 F.3d at 279). Moreover, many other witnesses-including his Italian teachers and his father's stepmother-testified that the child is of average maturity for his age. The mother testified credibly that the child was not mature enough to make major life decisions. While the father testified to the contrary, he also testified that he would not allow the child to have a choice whether to attend sexual abuse counseling, and the court found his testimony to be generally less than credible, in any event.
The court looks further to the child's inability to plan past obstacles. First, the court notes the child's failure to recognize that his stated desire to spend six months of each year in New York and six months of each year in Italy would present a serious-potentially insurmountable-impediment to his schooling. Most striking, though, is the recorded call that the child made to the mother shortly after the father learned of the filing of her Hague Convention petition to advocate for his stated desire to remain in New York. The child's tactics included shouting at his mother in a manner uncharacteristic of himself; calling her a liar; demanding that she, essentially, drop her case; and issuing ultimatums to that effect to her. This is immature conduct, to say the least, and does not reflect any planning of his effort to further his stated desire to remain in New York.
Moreover, to the extent that the child has stated "'particularized objections to returning to the former country of residence,'" the factual basis for them was contradicted by other evidence at trial (Matter of Luisa JJ., 219 A.D.3d at 1634, quoting Vasconcelos v Batista, 512 Fed.Appx 403, 407 [5th Cir 2013] [internal quotation marks omitted]; accord see Tsai-Yi Yang, 499 F.3d at 279). His claims that he did not learn well at school in Italy, and his mother did not help him with homework and was not otherwise involved in his school were contradicted by Italian teachers, who testified to his mother's involvement, that the child did well and completed all his homework; and by the child's ability to seamlessly enter his New York school at the same grade in which he was placed in Italy. His claims to the effect that he had few friends and nothing to do were also controverted. His stated fear that the mother cannot keep him safe was contradicted by evidence demonstrating that he is happy and loving in her presence and, for the reasons stated above, the court does not believe that the mother will not protect him, so expects that any fear that he harbors in that regard should be quickly assuaged after his return. Indeed, his statement that he fears that he would be unsafe in Italy is contradicted by his own stated desire to live there for six months out of the year.
At bottom, the child does not, in fact, object to returning to Italy, though, as the evaluating psychologist noted, he does appear to object to the custodial arrangement to which he is subject. The Hague Convention requires that these interests be vindicated in the Italian courts (see Tsai-Yi Yang, 499 F.3d at 278). For the foregoing reasons-and cognizant of the indicia, as detailed in petitioner's posttrial submissions, that the child's claims are in some measure the product of the father's undue influence over him and not his own free and unencumbered mind-the court declines to exercise its discretion to retain him in New York State.
The relief sought in the father's cross-petition received no treatment in the parties' papers, at the hearing or in the proceedings that led up to it. The court declines, however, to declare that the petition was abandoned, insofar as it seems that the parties' proof and arguments respecting the Hague Convention exceptions are also applicable to the father's emergency jurisdiction application. That is, if the court were to have authorized the child's continued retention in New York State, it would then arguably be appropriate to authorize New York's courts to exercise jurisdiction over the issues of the parties' custody of and visitation with the child; and, conversely, since the court is ordering the child's return to Italy, it must follow that a New York court's exercise of emergency jurisdiction is unwarranted. The court therefore finds it more appropriate to deny the father's petition on the merits, rather than dismiss it on a theory of abandonment. It is therefore
ORDERED that the petition of petitioner-respondent Luisa JJ. is granted; and it is further
ORDERED that the cross-petition of respondent-petitioner Joseph II. is denied; and it is further
ORDERED that the father shall return the child to Italy forthwith; and in no event later than August 21, 2024; and it is further
ORDERED that the cost of the child's travel shall be borne by the party obligated to bear it under the provisions of the currently-operative Italian custody order, and if such order contains no such provision then such cost shall be borne by the father, or as the parties may otherwise agree.
The within constitutes the decision and order of this court.