ITALY – 1996

ITALY – 1996 (Return denied) AUSTIN v SORRENTINO. The mother took the child to Italy without the fathers consent. The court ruled that the habitual residence of the child was the US. However they also ruled that the father was not exercising his custodial rights at the time of the removal, therefore it was not a wrongful removal under the Convention.


Austin v Sorrentino (Italy 1996)Venice Juvenile Court, 27 Jun 1996


The Juvenile Court, in Chambers composed of the following Judges:

Presiding Judge: Lucieno Fiscon
Judge: Valeria Zancan
Judge: Savio Stocco
Judge: Maria Luisa Levi

issued the following


Pursuant to Art. 7 of Law Ro. 64 of January 15, 1994, the Public
Prosecutor of the Venice Juvenile Court has urgently requested
that: “The Juvenile Court give immediate custody of the minor
Austin Joshua Carl, born on February 25, 1993, to the father and
order his immediate return to the State of California”.

The request to obtain the immediate return to California had been
made to the Public Prosecutor, via the Central Authority, by the
minor’s father who, on May 21, 1996, filed the relevant
application with the Central Authority alleging that his wife,
Anna Sorrentino, abducted their minor child from the United States
on December 13, 1995 to take him to Italy without his consent.

The abduction of Joshua was in violation of the father’s custody
rights, as held by the Supreme Court of California, Santa Clara
County, that on April 15, 1996, upon the father’s request, with a
decree that the father has filed In this proceedings, stated: a)
that the State of California was the habitual residence of the
minor, b) that both parents had custody rights over the child; c)
that Joshua’s removal to Italy on December 13, 1995 had been made
without the father’s consent and was therefore wrongful.

Both parents were present at the hearing scheduled for the parties
interrogation. During the discussion the father reiterated the
requests made in his application dated May 21, 1995 before the
Central Authority, and explained the circumstances under which his
son had been abducted from him.

The mother filed a defensive brief with documents attached and

1) the rejection of the application made by the father as the
Hague Convention is not applicable due to the fact that Joshua is
legally residing in Italy, that she be given temporary custody
over the minor, that the the case be assigned to the Padova Court
where the separation proceeding has been filed.

2) to reject the father’s application as:

– he did not effectively have custody over the minor
pursuant to Art. 3(b) of the Hague Convention;

– the minor, if returned, could be exposed to serious
psychological problems pursuant to Art. 13.b of the Hague

– more than one year has passed since the removal of the
child, who in now well integrated in the new environment, pursuant
to Art. 12 of the Hague Convention.

3) that she be given custody of the minor, even in the case the
minor be returned to California.

4) reimbursement of legal expenses from the father.
As far So the investigative activity is concerned, the mother
requested that a psychological appraisal be made by the
appropriate social services department of the Central Authority,
to verify Joshua’s relationship with her.

The Court received and read the report made by the Social services
department of the Central Authority regarding the personal and
family situation of the minor. The Court read the findings of the
parties and the request of the Public Prosecutor that the father’s
application be accepted. The Public Prosecutor pointed out that
the Juvenile Court is only requested to enforce the application,
without examining its merits.

The Court on June 24, 1996, in Chambers, has issued a decree.


First of all the Juvenile Court states that Paul Austin, father of
the minor, did not have custody over the minor as opposed to that
which Paul Austin declared in his application to the Central
Authority. In fact, to date, no Judicial authority has issued a
custody order and the separation of the spouses has yet to be

The above, however, does not exclude the applicability of the
Hague Convention of October 15, 1980 as Art. 3 of such Convention
states that the allegedly violated custody rights of the applicant
can also he established by law in the place of habitual residence.

In this cane, the Supreme Court of the Santa Clara county has
stated: that the habitual residence of the minor prior to the
removal to Italy was California, that according to Californian
law, non separated spouses have equal custody rights over the
children; that, therefore, the consent of both spouses is
necessary to move a child to another country.

This Juvenile Court 1a in agreement with such a statement of the
supreme Court of Santa Clara.

As far as the issue of the habitual residence is concerned, it is
relevant that the child was born in the United States and lived
there until May 1995 with both parents who, at the date of the
alleged wrongful removal, were still married and living in a
marital house from where the minor wee removed. The fact that both
spouses had chosen California to be their family residence is also

On the contrary, is not relevant that on November 22, 1995 (which
is to say prior to the alleged wrongful removal) the Padova
Municipality issued Anna Sorrentino’s certificate of residence and
family certificate, which have been filed in this proceedings, to
show that the minor has already been included in the Italian
family certificates in fact Anna Sorrentino, not having sole
custody over the minor, was not entitled to make her own decisions
as to the minor’s place of residence (see Article 5 of the Hague

The fact that on December 13, 1995 the minor was in California
only ten days, having been in Italy during the past six months, is
not relevant, as the father had not consented to the removal of
the child.

Therefore the Court cannot accept the mother’s request that Italy
be considered the place of habitual residence.

The Court has therefore determined that the Californian law is
applicable and that, according to such law, both parents had
custody rights over the minor. Now, in order to ascertain whether
the removal of the child was wrongful or not, the first problem is
to determine whether the father consented to the child’s

During the interrogation both parents clarified that the transfer
of Anna Sorrentino and Joshua to Italy on December 13, 1995 was
made without the father’s knowledge, and in such a way that he
could not express his opinion with that respect.

Mrs. Sorrentino affirms, however, that the father had consented to
the transfer of the child to Italy in May 1995. It is in fact true
that since May 4, 1995 the child was in Italy with his mother,
with the father’s consent, and that the child returned to Italy
only In the period from 4 to 13 December 1995.

The parents report different and inconsistent explanations as to
the reasons justifying the long period during which the minor was
away from his father.

The father said that, certainly, he consented to the May 1995 trip
for the sole purpose and duration strictly necessary to process
the application directed at obtaining the Green Card: as a result,
Mr. Austin intended the wife’s return to Italy as a definitive
return to marital life.

On the other hand, the mother affirms that even prior to May 1995
she had realized the deterioration of her marriage with Paul
Austin, and had informed her husband that she intended to return
to Italy to divorce and obtain the Green Card which she did not
manage to obtain in the United States. According to Mrs.
Sorrentino, the husband’s consent to the May 1995 trip was
intended to expressly authorize that the child remain in Italy
with the mother, while the return to the USA in December 1995 was
for the sole purpose of finally clarifying the relationship with
the husband and to collect her personal effects.

The Court has no possibility of determining the actual extent of
the consent given by Paul Austin to the May trip to Italy in May
1995. Therefore, the Court can only stipulate that the lack of
communication between the spouses has caused a misunderstanding as
to the nature of the May 1995 trip to Italy. Such misunderstanding
had, however, been clarified on November 11, 1995 when the father
sent a letter to Mrs. Sorrentino saying that he did not intend to
continue with the marital relationship.

On December 13, 1995, there was no doubt that Joshua’s parents
were in a conflict and that both intended to divorce.

According to the above circumstances, notwithstanding the father’s
consent to the May 1995 trip, the return of the child to Italy
should have been decided Jointly by both parents and not only by
the mother.

The Court therefore held that on December 13, 1995, according to
article 1, paragraph one of the Hague Convention, Anna Sorrentino
removed the minor child to Italy in violation of the father’s
custody rights pursuant to Californian law.

Art. 3 of said Convention on child abduction, however, demands a
further requirement to determine that the removal was wrongful:
the custody rights had to be effectively exercised at the time in
which the removal took place [Art. 3(b)].

Based on the foregoing, the Court believes that Paul Austin in May
1995 did not effectively exercise his custody rights over the
child, not because he was deprived of said rights by the mother,
but because he had, for months, accepted to take no direct care of
the child and had consented that the child remain with the mother
in Italy. Mr. Austin visited the child only once in August 1995
and only because the mother had instated, during such period he
had basically not financially contributed to the child’s
maintenance, so accepting that the mother took complete care of
the child during that six month period. Such a period,
considering the child’s youth, in very significant in order to
determine who effectively exercised custody rights.

The 1980 Hague Convention is aimed at protecting the factual
situations. Therefore the effective exercise of custody rights is
to be considered in its actuality, regardless of the situation
according to the law.

There in no doubt that the fact that Mr. Austin lived with the
minor In the marital house for ten days in the USA, does not have
any influence on the factual situation which was already in place,
as the spouses were in a conflict.

Based on the foregoing the Court held that Anna Sorrentino’s
behaviour was unjust and is to be censured, as it was made in
violation of the rules on custody over the minor child. However,
such behaviour done not constitute a wrongful removal of the minor
to Italy pursuant to Art. 3 of the Hague Convention as the father
wee not effectively exercising the custody rights at the time in
which the removal took place.

As to the other requests, the Court believes that Art. 12 and 13
of the Convention are not applicable to the subject case.

Article 12, paragraph 2, is not applicable as it is not true that
more than one year had passed from the date of the wrongful
removal (December 13, 1995) to the date of filing of the Hague
application (May 21, 1996). The fact that more than one year had
passed from the transfer to Italy, made on May 4, 1995, in not
relevant, as the father had not contested the legitimacy of said

Art. 13 paragraph b, which provides for cases in which it is
possible to not order the immediate return of the child pursuant
to Art. 12 paragraph 1, 4s not applicable. In fact, such rule
requires that the removal be wrongful, while the Court held that
it was not.

Even had the Court believed that the father effectively exercised
custody rights of Joshua at the time in which the child was
abducted and that the abduction made by the mother was wrongful,
the Court held that, should the child be returned to California,
there was the grounded danger that he could be exposed to
psychological problems.

Joshua’s sudden separation from his mother, and from the family
and environment in which he is now perfectly established, would be
an extremely disheartening situation for a three year old child
and could have negative psychological influences. This is even
truer if we consider that Joshua has not seen his father for more
than one year and would find himself in a totally different
environment without being prepared.

Such reflections must not effect the custody issue. What is deemed
to be dangerous to the psychological status of the child is only
the immediate return to California, according to the present
family situation. The Court does not intend to express an opinion
on the respective parent’s educational and custodial capacities.

Any further request of the mother is to be rejected.

This Court is not competent to make a decision on the custody
issue. There are other judicial proceedings pending in this

The Count dome not deem it necessary to order that an appraisal be
run on the present psychological status of the child, as this is
not deemed necessary for the current purpose of the Juvenile
Court. In addition, the report made by the Central Authority and
the father’s declarations exclude the necessity of such further

The legal expenses for such proceedings remain assigned to each


pursuant to Art. 7 of law 64/94 and 3, 12, 13 of Hague convention
dated October 25, 1980 the Court


the application made by the Public Prosecutor


that the return of the minor AUSTIN JOSHUA CARL, born on February
25, 1993, to the father’s house must not be ordered,


to not be competent to render any decision as to the temporary
custody of the minor.


any other requests.

To be communicated to the parents, the Public Prosecutor and to
the Central Authority.

Venice, June 24, 1996

The Presiding Judge
Lucieno Fiscon

The Judge
Valeria Zancan

The Clerk
Sandro Bianchi

Filed on June 27, 1996 in Venice

The Clerk
Sandro Bianchi