C. v C. (S.) (Italy 1996) WMH FN1Trieste Juvenile Court: Chronological No xxx
Docket Number xxx
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Chronological No. xxx Docket No. xxx
TRIESTE JUVENILE COURT
THE TRIESTE JUVENILE COURT IN CHAMBERS, PRESENT THE FOLLOWING
JUDGES:
Dr. Alessandra Bottan Griselli President
Dr. Anna Maria Assanti Referring Judge
Dr. Franca Ammione Honorary Judge
Dr. Andrea de Manzini Honorary Judge
upon reading the documents regarding the minors, C. C.
and A. C., born in New York respectively
on 1993 and 1994, residing at NY;
issued the following
DECREE
Upon reading the Juvenile Court decree dated 8 May 1996 which
temporarily prohibited M. C. from visiting the minor
children, with the purpose of verifying the mother’s statements;
Upon reading the request and attached documents filed by the
father M. C., in order to obtain the return of the
minor children, forwarded through the U.S. Central Authority of
the Ministry of Justice, Central Office for Juvenile Justice;
Upon reading the request of the Public Prosecutor to schedule an
hearing pursuant to article 7, paragraph III of Law No. 64 dated
15 January 1994 which ratified the Hague Convention on
International Aspects of Child Abduction; WMH FN2
Upon hearing the minors’ parents at today’s hearing;
WHEREAS
M. C. deposited a brief at today’s hearing in which he
explained to have married B. S. on 12 March 1993 in New
York; that the marriage soon turned out to be troublesome due to
the fact that the wife was extremely disturbed by the difficult
conditions of her family of origin; that Mrs. S. had several
times attempted to leave the marital house abducting the children;
that on 4 April 1996 a particularly serious dispute took place
during which the wife assaulted the husband, scratched him and
then called the Police and had him arrested; following such a
dispute, the wife had abandoned the marital house moving to Italy
with the minors; that subsequently, Mr. C. had been
dismissed from any charge relating to the above-mentioned dispute;
that on 12 April 1996 the New York Family Court ordered that the
minors not be removed from the jurisdiction of the Suffolk County
and that a subsequent order dated 28 May 1996, granted to the
father full custody of the minors. Based on the foregoing, Mr.
C. insisted that the children be immediately returned to
the U.S. and requested interim custody of the children until the
dates of the decision or, as a subordinate option, that the
children be given to the care of social services, to avoid the
mother possibly removing them from Italian jurisdiction. WMH FN3
During the interrogation, Mrs. B. S. mentioned that the
marriage with Mr. C. deteriorated as a result of the
husband’s continual abuses and as a result of an ancient
educational model imposed by the minor’s father and grandparents
who had already caused terrible consequences on the children; that
during the violent dispute of 4 April 1996 she had been seriously
hurt by her husband; that the husband had been prohibited to
contact the marital house unless accompanied by the police; that
she had not contacted the U.S. authorities as she was illegal in
the U.S. and was concerned about being expelled from the country;
that she had not been notified of the hearing scheduled in the
U.S. to discuss the minors’ custody, as she was already in Italy
at that time.
The Public Prosecutor has given his opinion which is favorable to
the father’s claims.
Considering that the minors were living with both parents who had
joint custody; that the mother was not allowed to remove them from
New York State without the husband’s consent or without a judicial
order granting her full custody; that on 28 May 1996 the New York
Family Court entrusted the father with full custody over the
children and that the father, M. C., has started
divorce proceedings;
considering that the father’s request has been regularly and duly
filed (Art. 12 of the Convention);
considering that the mother arbitrarily abducted the minors from
the father who at the time of the removal had full custody; that
the mother could not provide any evidence of the situations
mentioned in Art. 13 of the Convention and that she has not
provided evidences that the children could suffer any prejudice if
returned to U.S.;
considering that the Court believes that there are no sufficient
grounds to adopt interim measures; in fact there are no support
evidences of the father’s concern that the mother could leave
Italian jurisdiction (as Mrs. S. lives in Aviano where she is
also working); WMH FN4
for the above reasoning
joining the Public Prosecutor request:
pursuant to article 7 and following of Law No. 64 dated 15 January
1994 which ratified the Hague Convention on the International
Aspects of Child Abduction
ORDERS
that the minors C. C. and A. C., born
in New York (U.S.A.), respectively on 1993 and
1994, be immediately returned to the U.S.A. deliver
the file to the Public Prosecutor for the enforcement of the
decree pursuant to art. 7 of Law 64/94 and immediately informs the
Central Authority accordingly.
Service of process care of the Court Clerk.
Trieste, 18 September, 1996
(signed) The President
Filed with the Court Clerk on September 24, 1996
Copy certified as true on September 24, 1996
FOOTNOTES BY WM. M. HILTON
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1. Contributed by Roberta Ceschini, of Sinisi Ceschini Mancini
& Partners in Rome, Italy. Ms. Ceschini made the
following comment: “The difference with respect to the
Austin Case (BBS ID: AUSTIN.ITL) was definitively in the
Court Judges: the Judges in Trieste made a very through
and objective analysis of the case and appeared to be aware
of how The Convention works. On the contrary, the Venice
Judges in the Austin case did not have any idea of the real
purpose of The Convention and made a decision based on
feelings received during the parties interrogation.”
2. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The
Convention]
3. This would be similar to requesting a Warrant in Lieu of a
Writ of Habeas Corpus. (BBS ID WARLUWRT.HAG)
4. The issues raised by the mother are those that are typical
of a “Best Interest” hearing and are best heard in the
place where there is evidence of the alleged issues, here
New York. This decision follows the rulings of the
majority of the Contracting States in refusing to hear the
“Best Interest” arguments and refers them back to the
children’s Habitual Residence. See the Explanatory Report
by E. Perez-Vera, Hague Conference on Private International
Law, Actes et documents de la Quatorzieme session, vol.
III, 1980, p. 426 (Perez-Vera Report, paragraph 34.