USA – FEDERAL – TABACCHI – 2000 (Return Ordered) (Undertakings) TABACCHI v HARISON. The mother took the child to the United States after several years of fighting, cussing, and alleged physical abuse at the hands of the father. The father applied for the child’s return under the Convention. The District court ruled that the habitual residence was Italy and that there was no grounds for a “grave risk” defense. The court indicated that the Italian court had given the Mother temporary custody and saw no reason why the Italian court could not protect the mother and child form any potential harm. The child was ordered return with undertakings.


Tabacchi v Harison (D. Illinois 2000)No. 99 C 4130.
7 International Abduction (USA 2000)

Gian Andrea TABACCHI, Plaintiff,


Deirdre HARRISON, Defendant.
No. 99 C 4130.
United States District Court
N.D. Illinois, Eastern Division.
10 Feb 2000



001 On June 22, 1999, Gian Andrea Tabacchi (“Petitioner”)
brought this action pursuant to the Hague Convention on the
Civil Aspects of International Child Abduction and the
International Child Abduction Remedies Act (“ICARA”), 42
U.S.C. 11601 et seq. Tabacchi seeks the return of his minor
child, Beatrice Mairead Tabacchi (“Beatrice”), to Italy.

002 Respondent, Deirdre Harrison, who is Beatrice’s
mother, opposes Tabacchi’s petition and seeks to retain
Beatrice in the United States. After several delays
occasioned by the parties’ settlement discussions, a bench
trial was held on November 24, 29, and December 3, 1999. The
court now issues its findings of facts and conclusions of


003 Gian Andrea Tabacchi and Deirdre Harrison met in New
York City in September 1994. At the time, Harrison was
pursuing her career as an actress. Tabacchi was working as a
composer and running a nonprofit orchestra. The two began a
relationship and eventually began living together in
Tabacchi’s apartment in Manhattan in January 1995.

004 A few months later, the couple decided to move to
Tabacchi’s family farm in the Italian countryside for at
least a few years. On July 14, 1995, Tabacchi and Harrison
arrived in Rome, Italy.

005 A few days after their arrival, the couple moved to
Tabacchi’s father’s farm in Palombara Sabina, Italy, which
is about fifteen miles from Rome. The ten acre estate was
run as a commercial farm. There was a farmhouse and a
cottage on the property. Tabacchi and Harrison moved into
the farmhouse. With the help of Tabacchi’s father, Harrison
obtained a fiscal code number (the equivalent of a social
security number in the United States) and a bank account.
She took a job teaching English and continued to take acting

006 In July 1996, Harrison learned that she was pregnant.
In October 1996, Harrison and Tabacchi decided to get
married. They were married in Rome on November 18, 1996.
Their daughter Beatrice was born at the Tabacchi family home
in Palombara Sabina on March 14, 1997.

007 Harrison and Tabacchi had a tumultuous marriage that
at times involved violent arguments. During their arguments
both would frequently yell, swear, and occasionally throw
things. On one occasion, Tabacchi threw a food processor to
the kitchen floor and smashed it. In another of their heated
arguments, Tabacchi threw a coffee cup filled with coffee to
the kitchen floor just as Harrison’s mother, Jennifer Shaw,
was stepping into the room. Tabacchi once pushed over
Harrison’s bookcase in her office and threw her work to the
floor. On another occasion, Tabacchi threw a wine glass on
to the bocce ball court, smashing the glass. Tabacchi once
threw a remote control towards Harrison, breaking the glass
on a painting on the wall about five feet from Harrison.
Harrison also threw things occasionally. In one argument,
she threw a phone book and other office supplies at Tabacchi
and to the floor. No one was injured in any of these
incidents. The only incident Beatrice witnessed was the one
involving the smashed wine glass.

008 The first incident of physical abuse in the parties’
relationship occurred in January 1997, in the bedroom of
their home, when the couple engaged in a heated argument
that resulted in Tabacchi grabbing Harrison’s arm. Harrison
had gone into the hallway to call a friend. They argued over
whether it was too late in the evening for such a call and
struggled over the phone. Harrison began throwing items
from the phone stand. Tabacchi slapped her across the cheek
with his open hand. After a few minutes, Tabacchi approached
Harrison again. At that point, Harrison threw the phone at
him, hitting him in the head. Tabacchi then slapped her
again on the cheek. Harrison grabbed her handbag and keys.
Before she could leave the house, Tabacchi grabbed her bag.
He then locked her out of the house. Harrison managed to get
back into the house after a few minutes. She retrieved her
keys and took the car for a drive. She returned home after a
few hours. The couple talked about the fight and apologized
and reconciled. Harrison did not go to the police about this
incident or seek medical attention.

009 The second incident occurred in September 1997, when
Harrison, Tabacchi, and Beatrice were out driving. Harrison
was driving and Tabacchi was sitting in the back seat.
Harrison missed a turn. The couple began arguing again; both
were yelling and swearing at each other. Tabacchi put his
hands on Harrison’s neck. Harrison testified that Tabacchi
was trying to choke her. Tabacchi testified that he had
merely put his hands on Harrison’s shoulders to try to calm
her. Harrison pulled the car over and ordered him out of the
car. Tabacchi got out after a few minutes. Harrison then
asked Tabacchi to get back into the car, but he refused.
Harrison drove away with Beatrice.

010 Later that day or a few days later at their home, the
couple got into an argument about their altercation in the
car. As Harrison walked out of the room, Tabacchi hit her
with his fist on the back of her head, just above the nape
of her neck. Harrison fell to the floor. She got back on
her feet and went to get Beatrice who was in a room across
the hall. She took Beatrice and went to the cottage behind
the house. She locked herself in and called her mother.

011 In February 1998, the couple had yet another
explosive argument at their home in Palombara Sabina.
Tabacchi testified that Harrison became angry with him,
shouting that he cared more about his musical instruments
than he cared about her. Harrison threatened to throw
Tabacchi’s instruments out the window, went into the bedroom
and began throwing things outside. Tabacchi followed her
into the room and grabbed at her waist. Harrison’s shirt
ripped and she fell backward, landing on her buttocks.
Harrison got back up, took off her shirt, and threw it out
the window to show others, she testified, how Tabacchi was
treating her.

012 In November 1998, an argument again escalated to
violence. Harrison and Tabacchi were arguing in the living
room of their home. Tabacchi stood up, put two hands on
Harrison’s chest, and pushed her down. Tabacchi then
clenched his fists together and hit Harrison on the top of
her head. Harrison called Tabacchi’s father, Giunio, who
lived in the cottage on the property. She told him that she
wanted Tabacchi out of the house. Giunio attempted to
mediate and they agreed that Tabacchi would stay in the
cottage. However, Tabacchi continued to stay in the house.

013 In December 1998, Harrison’s mother, Jennifer Shaw,
came to stay at the home in Palombara Sabina. On January 13,
1999, Tabacchi engaged in an argument with Shaw, in which he
told her that she should be locked up or tied up. Shaw
retreated to her bedroom. Harrison called Tabacchi’s
father, Giunio, and left him a message telling him to get
Tabacchi out of the house immediately. Harrison told
Tabacchi that if he did not go elsewhere she would take
Beatrice away for good. Tabacchi spent that evening and the
next in the cottage.

014 On the morning of January 15, 1999, Harrison packed
some clothing and documents to take to the home of her
neighbor, Josephine Campbell, where she was going to stay
with Beatrice and Shaw. When Harrison was packing the items
into the car, Tabacchi came from the cottage to the house to
get a screwdriver. He saw Harrison and grabbed the keys
from the car. He questioned her about where she was going.
The two began arguing.

015 Harrison’s mother came outside and took Beatrice from
Harrison. Campbell and another neighbor, Ugo Laurenti,
arrived. They both talked to Tabacchi. Finally, Tabacchi
consented to allow Harrison and Beatrice to go to Campbell’s
house, which they did.

016 Later that day, Ugo relayed a message from Tabacchi
to Harrison that Harrison could pick up her belongings from
the house while he was out. Ugo told Harrison that Tabacchi
agreed that Harrison could take Beatrice to the United
States for three months if she signed something. Harrison
then drove to the house with Ugo. Tabacchi came into the
house and asked Harrison what her intentions were. She told
him that she was going to the United States to stay with her
family. Tabacchi said he was going to the police and
Harrison said she would too.

017 Tabacchi drove to Campbell’s house to get Beatrice.
Tabacchi went inside Campbell’s house where Campbell and
Shaw were watching Beatrice and Campbell’s foster children
play. Tabacchi entered the house, yelling for Beatrice. He
grabbed her from the floor and hurriedly walked toward the
door. Shaw jumped in front of him and attempted to block the
door with her body. Tabacchi, who was holding Beatrice,
attempted to push Shaw out of the way. He changed course and
went to the back door. He walked around to the front of the
house where he again confronted Shaw. He walked past her and
proceeded toward the front gate where his car was parked. At
that moment, Harrison drove up with Ugo. Harrison jumped
from the car and ran toward Tabacchi with her arms
outstretched to block him. Tabacchi flailed his free arm
(one arm was holding Beatrice) to push Shaw out of the way.
Tabacchi’s arm hit Harrison with considerable force, hitting
her in the eye and the mouth and knocking her to the ground.
Harrison suffered a black eye and loosened teeth. Harrison
got off the ground and succeeded in blocking the driveway
with her car to keep Tabacchi from leaving with Beatrice.
Tabacchi got into Ugo’s car with Beatrice. Ugo convinced him
to get out. Tabacchi gave Beatrice back to Harrison.
Harrison, Campbell and Shaw went into the house to call the

018 Tempers cooled and the police came, approximately
forty-five minutes later.

019 When the police arrived, Tabacchi asked if he could
charge Harrison with child abduction. The police told him
that he could not do so because Harrison was the child’s
mother and because Tabacchi and Harrison were still married.
The police asked Harrison if she wanted to report the
assault. She did. Harrison drove to the police station with
Campbell, Beatrice, and Shaw. Later that evening, when
Harrison, Campbell, Shaw and Beatrice left the police
station, they saw Tabacchi walking toward the station with
his father, Giunio.

020 Harrison dropped off Campbell and drove to Rome to
stay with a friend. While she was in Rome, she made
arrangements to leave Italy the next day. She had no
communication with Tabacchi that night. Tabacchi tried to
reach Harrison that evening via her cellular phone, but he
was unsuccessful. At 7:25 p.m. on the January 15, 1999,
Tabacchi filed an oral report with the Palombara Police
regarding the events of that day, which the police
transcribed. He recounted the incidents at the farmhouse and
at Campbell’s house and reported that Harrison said, “I WILL
AGAIN.” Pet. Ex. 6B. Tabacchi proposed a “formal
report-complaint against HARRISON Deirdre for all the
offences [sic] that the Judiciary Authority will want to
recognize in the facts described, asking the punishment of
the offender.”

021 The next day, Tabacchi went to the family court in
Rome to see what he could do to keep Harrison from leaving
with the child. He followed the judge’s suggestion and went
to the police station to have Beatrice’s name put in the
“passport book” to prohibit her removal from the country. On
his way home, he stopped at another police station to file a
report and to see if there was any way of tracking
Harrison’s location. The police told him that they had no
way of tracking Harrison at that time.

022 At about 12 or 1 p.m., he called their neighbor,
Josephine Campbell, to see if she knew Harrison’s
whereabouts. Campbell said she did not. He called Campbell
again around 3:30 p.m. and Campbell told him that Harrison
and Beatrice were “probably on a plane.”

023 On the morning of January 16, 1999, Harrison flew to
London with Beatrice. She did not tell Tabacchi that she was
leaving. She sent him a postcard from the airport in Italy,
stating, “It is not my intention to withhold [sic] total
rights or access to your daughter as I leave the country.
Trust me if you can. I pray you do. Bea is fine. Deirdre.”

024 Harrison and Beatrice stayed the night in London and
left the next day for Chicago, arriving on January 17, 1999.

025 Harrison’s mother, Shaw, did not leave Italy with
Harrison and Beatrice but stayed in Italy at Campbell’s
house for a few more days. Tabacchi did not harass her or
attempt to contact her while she was staying there.

025 Since Harrison and Beatrice left Italy, they have
been living with Harrison’s brother in Chicago. Harrison is
unemployed and receives support from her father and
occasionally from her brother.

026 On January 18, 1999, Tabacchi called Harrison at her
brother’s apartment. Harrison told him that she and
Beatrice were safe. Harrison told Tabacchi about her plan
to divorce on January 19.

027 On January 21, 1999, Harrison filed for divorce and
for an order of protection in the Circuit Court of Cook

028 Tabacchi filed a petition for separation in the Civil
Court of Rome on February 11, 1999, in which he sought
custody of Beatrice. Pet. Ex. 1B. Harrison and Tabacchi were
each represented by Italian lawyers at the proceedings
before the Civil Court, although Harrison did not personally

029 On July 27, 1999, the petition was granted. The
court’s order provided for separation of the spouses and
granted Harrison temporary custody of Beatrice pending an
“in depth technical evaluation of the parental fitness of
both parties ….” Pet. Ex. 2B. The court granted Harrison
temporary custody with the obligation that she bring
Beatrice back to Italy to allow the child adequate
visitation time (45 days) with Tabacchi in the environment
where she had grown up since birth. This order was made
“temporarily, without prejudice to the necessity and the
urgency of an in depth technical evaluation of the parental
fitness of both parties and the effect of the sudden change
of residence of the mother on the psychological and physical
development of the minor ….” Tabacchi was ordered to pay
Harrison child support. The court ordered a psychiatric
evaluation of Beatrice to determine the best long term
custody arrangement. Id. To date, only one meeting with the
court-appointed psychiatrist has occurred and only Tabacchi,
Harrison’s lawyer, and the psychiatrist were present.

030 On March 6, 1999, Tabacchi prepared a document
addressed to the “Attorney of the Republic c/o the District
Magistrate is [sic ] Court of Rome” to complain about
Harrison’s conduct. Resp. Ex. 60. He set out his version of
the facts leading up to Harrison’s removal of the child from
Italy and stated that in order to justify her removal of
Beatrice, Harrison “has covered me with false and slanderous
accusations, claiming that I mistreated her.” He accused
her of going to the United States to prevent him from having
contact with Beatrice and to “extort” financial support from
him. The status of this document under Italian law has not
been explained to the court.

031 Tabacchi filed his petition under the Hague
Convention in this court on June 22, 1999.

032 Since Harrison removed Beatrice from Italy, Tabacchi
has maintained contact with Beatrice. Tabacchi has spoken
with Beatrice over the phone and has sent her letters. He
has sent Beatrice and Harrison gifts and flowers. In
February 1999, Tabacchi sent Harrison a check for $580 at
her request. No other financial support has been provided
since then, despite the Italian court order.

033 Aside from a few short trips to London with her
mother and vacations, Beatrice was never outside of Italy
before January 16, 1999. She was born in Palombara Sabina,
and lived at the farmhouse. She often played with the
neighbor’s children. Tabacchi and Harrison were both
involved in Beatrice’s care and made the majority of the
decisions regarding her care together. Tabacchi fed
Beatrice, bathed her, medicated her, changed her diapers,
played music for her, shopped for her, and cooked for her,
among other things.

034 Tabacchi’s father obtained a fiscal code number to
allow Beatrice to enroll in Italy’s National Health Service.

035 Harrison and Tabacchi enrolled Beatrice in a
Montessori school in Palombara Sabina and paid for her
tuition. She started school in January 1999.

036 Tabacchi never abused Beatrice. However, Harrison has
expressed concern about Tabacchi’s parental fitness based on
two incidents.

037 First, in 1997, Tabacchi became frustrated with
Beatrice because she would not stop crying. Tabacchi began
shaking her, albeit not hard. Harrison told him to stop,
which he did, although he also told Harrison to “shut up.”

038 Second, after the altercation on January 15, 1999,
Harrison discovered a bump on Beatrice’s head. Tabacchi had
been holding Beatrice. Harrison has no knowledge of how
Beatrice got the bump on her head but expressed concern that
Tabacchi could have had some responsibility for it.

039 Since Harrison and Beatrice left Italy, Tabacchi has
visited with Beatrice in Chicago.

040 Harrison facilitated a number of visits. On two
occasions in October and November 1999, Harrison took
Beatrice to Tabacchi at his hotel so that Beatrice could
stay overnight with him. On another occasion she invited
Tabacchi over to make dinner.

041 As stated above, Tabacchi has lodged with Italian
authorities a number of complaints against Harrison in
connection with her removal of Beatrice. There has been no
proof of Italian law in this case, and this court is without
any knowledge of what the legal effect of these complaints
is under Italian law or whether they could lead to the
arrest and/or confinement of Harrison were she to return to
Italy, something Harrison has argued could occur, but
without introducing any supporting evidence.

042 Tabacchi testified that he instructed his Italian
attorney to withdraw all of his complaints against Harrison
on November 23, 1999, and his lawyer has informed him that
they have been withdrawn. Because there has been no proof of
Italian law in this case, the court does not know the effect
of Tabacchi’s voluntary withdrawal of these complaints.

043 Tabacchi has agreed, if Harrison and Beatrice return
to Italy pending custody proceedings there, to provide
housing and a car. He testified that he would also pay the
support ordered by the Italian court. He agreed to refrain
from challenging the temporary custody order and promised
not to seek any criminal or civil sanctions against


044 Dr. Alan Ravitz, a child psychiatrist, testified on
behalf of Harrison regarding the level of attachment between
Harrison and Beatrice. Dr. Ravitz evaluated the potential
impact of separating Beatrice from Harrison. He interviewed
Harrison three times. He met with Beatrice and Harrison
together for one hour to observe their interaction.

045 Based on what Harrison told him and on the
relationship he observed between Harrison and Beatrice, Dr.
Ravitz concluded that Harrison was Beatrice’s primary
caretaker. [FN2]

046 Dr. Ravitz testified that Beatrice was healthy and
precocious. He testified that Harrison suffered no
psychosis, based on his four meetings with her, but he was
not asked to focus on Harrison’s health but only on the
risks separation poses for Beatrice.

047 Dr. Ravitz testified that the degree of attachment
between Harrison and Beatrice was secure. He testified that
if the two were separated, it would be traumatic, but that a
child may recover from such trauma if placed in a caring
environment. The risks would be greater if Harrison was
imprisoned or if Beatrice’s new caretaker was hostile to

048 He testified that in some cases of separation,
children suffer from separation anxiety disorder. He could
not predict whether Beatrice would suffer from such a
disorder if separated from her mother. He gave the opinion
that if Beatrice and Harrison were separated for more than
three to four weeks, Beatrice would likely suffer grave
emotional harm.

049 Although Harrison told Dr. Ravitz about her history
with Tabacchi and their family life, Dr. Ravitz did not
conduct any independent evaluation of Tabacchi or of his
relationship with Beatrice. He could not opine on the level
of attachment between Tabacchi and Beatrice. He testified
that if Tabacchi was an excellent caretaker, the risk of
harm to Beatrice in case of separation from her mother would
be lessened. He testified that if Harrison returned to Italy
with Beatrice and lived in a separate residence from
Tabacchi, there could still be emotional harm to Beatrice if
the move negatively affected Harrison’s psychological well

050 Dr. Ravitz did not observe any mental or emotional
problems in Beatrice caused by her having been removed from
Italy. However, he stated that the effects of the removal
might not show up immediately.

051 Harrison also called Roe Chase Bernardini, a licensed
clinical social worker, as an expert witness. [FN3]
Bernardini has been Harrison’s therapist since March 1999.
Bernardini testified that when she first saw Harrison,
Harrison was suffering from acute depression, disturbed
sleep, anxiety, hypervigilance, and hyperarousal.
Bernardini diagnosed her with”post traumatic stress
disorder” (“PTSD”), a disorder she defined as “a syndrome of
features that develop which are characterized by persistent
and reoccurring [sic] intense feelings around the event of
trauma.” Tr. 643.

052 She described the symptoms as: “intrusive
thoughts,images, ideation, reoccurring [sic] feelings,
reliving the event or trauma or traumas, hyperarousal, acute
relation– response, intense response reactions,startled
response and fear of closeness, fear of intimacy, sexual
contact, intimacy of any kind, and a person goes into a
generalized feeling of numbing, and impairment in jobs,
social and marital relations generally occurs and
accompanies this.” Id.

053 Bernardini testified that Harrison’s PTSD was
“brought on” by Tabacchi’s assaults. According to
Bernardini, Harrison’s symptoms abated completely by May or
June 1999, and Bernardini, at that time, ceased making notes
of her meetings with Harrison, although she continued seeing
her several times a month thereafter. Bernardini opined
that Harrison “might re-experience PTSD,” tr. 649, if she
had to return to Italy where she might be reminded of her
history of problems with Tabacchi and his family, even if
Harrison had custody of Beatrice, her own car, and her own


A. The Hague Convention

054 Italy and the United States are both signatories to
the Hague Convention on the Civil Aspects of International
Child Abduction (“Hague Convention” or”Convention”). The
United States implemented the Convention in the
International Child Abduction Remedies Act (“ICARA”), 42
U.S.C.  11601 et seq. The Convention “is an international
treaty designed to protect custody rights of parents on a
global scale.” Meredith v. Meredith, 759 F.Supp. 1432, 1434
(D.Ariz. 1991). Article 1 of the Convention states that the
Convention’s objective is “to secure the prompt return of
children wrongfully removed to or retained in any
Contracting State and … to ensure that rights of custody
and of access under the law of one Contracting State are
effectively respected in the other Contracting States.” If
the court finds a child was wrongfully removed, Article 12
of the Convention provides that the court “shall order the
return of the child forthwith.” Wrongful removal or
retention “include[s] a removal or retention of a child
before the entry of a custody order regarding the child….”
42 U.S.C. 11603(f)(2).

055 Thus, to obtain relief, Tabacchi must show by a
preponderance of the evidence that Beatrice was wrongfully
removed from Italy or wrongfully retained in the United
States. See 42 U.S.C.  11603(e)(1)(A).

056 Under the Convention, a removal or retention is
wrongful where:

a. it is in breach of rights of custody
attributed to a person … either jointly or
alone, under the law of the State in which the
child was habitually resident immediately
before the removal or retention;


b. at the time of removal or retention those
rights were actually exercised, either jointly
or alone, or would have been so exercised but
for the removal or retention.

Hague Convention Art. 3.

057 This requires Tabacchi to show (1) that Italy was
Beatrice’s habitual residence at the time of the removal;
(2) that he had custodial rights to Beatrice; and (3) that
he was exercising his custodial rights at the time that
Beatrice was removed from Italy.

058 This court’s task is a limited one. The court does
not judge the merits of the parties’ custody claims but
determines only whether the minor child was wrongfully
removed from Italy or wrongfully retained in the United
States and, if so, whether any of the Convention’s
exceptions to mandatory return apply. Hague Convention Art.
19; 42 U.S.C. 11601(b)(4); Friedrich v. Friedrich, 983 F.2d
1396, 1400 (6th Cir. 1993) (“Friedrich I”); Rydder v.
Rydder, 49 F.3d 369, 372 (8th Cir. 1995); Feder v.
Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995).

B. Wrongful Removal or Retention

1. Habitual Residence

059 The Convention does not define the term “habitual
residence.” In defining the term, American courts
frequently look to a case from the United Kingdom, Re Bates,
No. CA122.2-89,High Court of Justice, Family Division Court,
Royal Court of Justice, United Kingdom, 1989. [FN4] See
Feder, 63 F.3d at 223; Friedrich I, 983 F.2d at 1401;
Slagenweit v. Slagenweit, 841 F.Supp. 264, 268 (N.D.Iowa

060 Bates was quoted at length in Feder and the language
is instructive:

[T]here must be a degree of settled purpose.
The purpose may be one or there may be several.
It may be specific or general. All that the law
requires is that there is a settled purpose.
That is not to say that the [person] intends to
stay where he is indefinitely. Indeed his
purpose while settled there may be for a
limited period. Education, business or
profession, employment, health, family or
merely love of the place spring to mind as
common reasons for a choice of regular abode,
and there may well be many others. All that is
necessary is that the purpose of living where
one does has a sufficient degree of continuity
to be properly described as settled.

Feder, 63 F.3d at 223 (quoting Re Bates, slip op. at 10).

061 Habitual residence can be changed only by “a change
in geography and the passage of time, not by changes in
parental affection and responsibility. The change in
geography must occur before the questionable removal ….”
Friedrich I, 983 F.2d at 1401-02 (emphasis added). “[T]he
court must focus on the child, not the parents, and examine
past experience, not future intentions.” Friedrich I, 983
F.2d at 1401.

062 Applying these principles to the present case, the
court finds that Beatrice’s residence in Italy was settled
and that Italy was her habitual residence. There is no
question that aside from a few vacations and trips to London
for Harrison’s work, Beatrice had not been outside of Italy
and away from her place of birth, Palombara Sabina, from the
time of her birth until she was removed on January 16, 1999.
She was enrolled in school. She played with neighborhood
children. She was enrolled in the National Health Service
and saw Italian doctors. Any plans that Harrison may have
had to take Beatrice to the United States are irrelevant
because they relate to future intentions. See Friedrich I,
983 F.2d at 1401.

2. Tabacchi’s Exercise of Custody Rights in Beatrice Prior
to her Removal

063 Next the court must determine whether Tabacchi’s
custody rights under the laws of the state of Beatrice’s
habitual residence, Italy, were breached by her removal and
whether Tabacchi was exercising his custody rights at the
time of her removal. See Friedrich I, 983 F.2d at 1402. “The
Convention … only provides the remedy of return of the
child when the child has been removed in violation of the
non-consenting parent’s right of custody, and does not
provide this relief if the non-consenting parent had only a
right of access, rather than a right of custody.” Croll v.
Croll, 66 F.Supp. 554, 558 (S.D.N.Y. Oct.19, 1999)
(citations omitted).

064 Harrison does not dispute that Tabacchi had custody
rights when Beatrice was taken from Italy. Therefore, the
court need determine only whether Tabacchi was exercising
those rights at the time. It is undisputed that Tabacchi
was significantly involved in Beatrice’s care while she was
in Italy. He fed her, bathed her, played with her, gave her
medication, and performed other parental duties. He and
Harrison made decisions regarding Beatrice’s health and
education together.

065 Tabacchi has thus met his burden of showing that he
was exercising his custody rights and that the removal of
Beatrice from Italy and her retention in the United States
are in breach of those rights. See Friedrich I, 78 F.3d at
1066 (“[S]hort of acts that constitute clear and unequivocal
abandonment of the child,” a parent should be found to have
exercised his or her custody rights under the Convention.).
Beatrice must be returned to Italy pending the permanent
resolution of the question of custodial rights, absent some
exception provided in the Convention. [FN5]

C. Defenses

066 The Convention provides four exceptions to the
mandatory return of a wrongfully removed or retained child.
ICARA makes clear that these four exceptions are to be
construed narrowly. 42 U.S.C.  11601(a)(4). “Were a court
to give an overly broad construction to its authority to
grant exceptions under the Convention, it would frustrate a
paramount purpose of that international agreement-namely, to
‘preserve the status quo and to deter parents from crossing
international boundaries in search of a more sympathetic
court.” ‘ Blondin v. Dubois, 189 F.3d 240, 246 (2nd Cir.
1999). Indeed, even if one of the exceptions applies, while
the court is not bound to return the child, it may still
find it appropriate to do so if it would further the aims of
the convention. See Blondin, 189 F.3d at246, n. 4 (citing
Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th
Cir.1996)(“Friedrich II”)).

067 Harrison raises two defenses arising under ICARA and
the Convention: (1) Tabacchi consented and/or acquiesced to
the removal of Beatrice from Italy and her retention in the
United States; and (2) returning the child to Italy presents
a grave risk of physical and/or psychological harm.

1. Consent and Acquiescence

068 Article 13(a) of the Convention and ICARA provide
that the court is not bound to order the return of the child
if the respondent establishes by a preponderance of the
evidence that the petitioner “consented to or subsequently
acquiesced in the removal or retention” of the child. Hague
Convention Art. 13(a); 42 U.S.C.  11603(e)(2)(B).

069 Neither the Convention nor ICARA define the terms
“consent” or “acquiescence,” and there is no guidance in the
legislative history. See Friedrich II, 78 F.3d at 1069, n.
11. Harrison argues that Tabacchi consented to the removal
of Beatrice from Italy. She testified that on January 15,
1999, Ugo Laurenti told her that Tabacchi told him that he
would consent to Harrison taking Beatrice to the United
States for three months if she “signed something.” Harrison
testified that she did not know what “something” meant.
Nonetheless, Harrison argues that the postcard she sent from
the Italian airport on January 16, 1999, as she was leaving
with Beatrice for London, constituted the written instrument
that Tabacchi requested. She also argues that Tabacchi’s
statement “Deirdre can go to Jo’s,” which he made on the
morning of January 15, when he saw her packing her things in
the car, constitutes evidence of consent.

070 Josephine Campbell lived about one kilometer from
Tabacchi and Harrison’s residence. This hardly amounts to
permission to leave the country with Beatrice and, in the
context of all the evidence in the case, is a frivolous
contention. The incidents occurring on January 15, suggest
exactly the opposite of consent: Tabacchi took the keys from
the car and questioned Harrison about where she was going
when he saw her packing the car. He went to Campbell’s house
to get Beatrice because he thought Harrison was taking her
away and got into an altercation with Harrison and her
mother over the issue. On that very day, Tabacchi attempted
to charge Harrison with abduction and attempted to get help
from legal authorities to prevent Harrison from leaving
Italy with Beatrice. Harrison left Italy without telling
Tabacchi where she was going with Beatrice or when she would
return; and she did not speak with Tabacchi before she left,
even as Tabacchi was trying to find her. [FN6]

071 Other courts have rejected the defense of consent on
similar facts. In Friedrich II, the Sixth Circuit affirmed
the district court’s finding that the petitioner had not
consented to the removal of the minor child from the state
of habitual residence, Germany. The respondent mother based
her claim of consent on statements that she claimed the
petitioner father had made during their separation. The
father denied granting such consent. The district court
found for the father and the Sixth Circuit affirmed, noting
that Mr. Friedrich’s testimony as to lack of consent was
supported by the fact that Mrs. Friedrich removed the child
without informing Mr. Friedrich of her intended departure
from Germany. Friedrich II, 78 F.3d at1069.

072 Similarly, in Croll v. Croll, supra, the district
court rejected the mother’s assertion that the father had
consented to her removal of their child from Hong Kong to
the United States. The custody order issued in Hong Kong
provided that Mr. Croll could request that the immigration
department not issue the child a passport without his
consent. Ms. Croll argued that his failure to take such
actions constituted consent. Ms. Croll also testified that
she and Mr. Croll had discussed moving to the United States
and that he allegedly agreed that it would be beneficial to
the child. Mr. Croll denied such an agreement. The court
held that because of the conflicting testimony along with
the petition for return of the child that the father had
filed within a few weeks of the child’s removal, Ms. Croll
had failed to prove consent. Id. But see Krishna v. Krishna,
97 C 0021, 1997 U.S. Dist. LEXIS 4706,*10-11(N.D. Cal. April
11, 1997) (consent found where petitioner freely provided
respondent with the child’s passport after a discussion he
had with one of respondent’s relatives who informed him of
respondent’s intention to come to the United States; by
handing over the child’s passport the petitioner had
implicitly or explicitly consented to the’ child’s removal).

073 As in Croll and Friedrich II, the evidence of consent
here does not satisfy the preponderance of the evidence
standard. Tabacchi’s persistent attempts to keep Beatrice in
Italy on January 15, 1999 and his subsequent filing of the
Hague petition undermine Harrison’s claim of consent.

074 Harrison also seeks relief under Article 13b’s
defense of acquiescence, asserting that Tabacchi acquiesced
in the child’s retention in the United States. Acquiescence
under the Convention requires “an act or statement with the
requisite formality, such as testimony in a judicial
proceeding; a convincing written renunciation of rights; or
a consistent attitude of acquiescence over a significant
period of time.” Friedrich II, 78 F.3d at 1070 (internal
footnotes omitted).

075 The court rejects the contention that Tabacchi
acquiesced in Beatrice’s removal from Italy and retention in
the United States. All of the evidence is to the contrary.
Harrison bases her claim of acquiescence on the following

076 Tabacchi mailed her and Beatrice gifts and flowers in
the United States; Tabacchi sent her a check for $580 at her
request; Tabacchi talked with Harrison about visiting and
inquired about work in the United States; and Tabacchi did
not file his Hague petition until June 22, 1999.

077 These facts are insufficient to constitute the
unequivocal acquiescence required to satisfy Article 13b.
While Tabacchi was sending gifts and offering financial
support, he filed complaints with the police against
Harrison for child abduction; he filed for custody in the
Italian courts; he asked Harrison to bring Beatrice back to
Italy several times; and most importantly, he pursued his
petition in this court.

078 Tabacchi has been fighting to get his daughter back
since the day she was taken from Italy. See Wanninger
v.Wanninger, 850 F.Supp. 78, 81-82 (D.Mass. 1994); see also
Friedrich II, supra.

2. Grave Risk

079 The Convention and ICARA provide that an order of
return is not mandatory if the respondent proves by clear
and convincing evidence that “there is a grave risk that
[the child’s] return would expose the child to physical or
psychological harm or otherwise place the child in an
intolerable situation.” Hague Convention Art. 13(b); 42
U.S.C. 11603(e)(2)(A). The exception is to be narrowly
construed; the potential harm must be “something greater
than would normally be expected on taking a child away from
one parent and passing him to another.” Friedrich II, 78
F.3d at 1068 (quoting In re A., 1 F.L.R. 365,372
(Eng.C.A.1988)); see also Nunez-Escudero, 58 F.3d at 377;
Rydder, 49 F.3d at 373.

080 In Friedrich II, the Sixth Circuit limited the
exception to the following situations: First, there is a
grave risk of harm when return of the child puts the child
in imminent danger prior to the resolution of the custody
dispute–e.g., returning the child to a zone of war, famine,
or disease. Second, there is a grave risk of harm in cases
of serious abuse or neglect, or extraordinary emotional
dependence, when the court in the country of habitual
residence … may be incapable or unwilling to give the
child adequate protection. Id. at 1069. [FN7]

081 “The exception for grave harm to the child is not
license for a court in the abducted-to country to speculate
on where the child would be happiest.” Friedrich II, 78F.3d
at 1068. See also Nunez-Escudero v. Tice-Menley, 58 F.3d
374, 377 (8th Cir. 1995) (“The Article 13b inquiry does not
include an adjudication of the under lying custody dispute
….”). “It is not relevant to this Convention exception who
is the better parent in the long run, or whether [Harrison]
had good reason to leave her home in [Italy] and terminate
her marriage, or whether [Harrison] will suffer if the child
she abducted is returned to [Italy].” Nunez-Escudero, 58
F.3d at 377.

082 Nonetheless, the court’s inquiry “must encompass some
evaluation of the people and circumstances awaiting [the]
child in the country of [her] habitual residence.” Id. See
also Hague Convention Art. 13 (the court “shall take into
account the information relating to the social background of
the child”). If those circumstances and individuals create
an intolerable situation, this court will not order the
child’s return to Italy.

083 Harrison asserts that she and Beatrice would be at
grave risk of physical and psychological harm if Beatrice
was returned to Italy. To support her assertion, Harrison
points to Tabacchi’s history of physical and verbal abuse of
Harrison. Tabacchi slapped her at least three times, hit her
on the head with his fist at least twice, grabbed at her
waist and threw her down at least once, allegedly choked her
briefly, and hit her in the face with his arm, pushing her
down. Harrison also testified to their heated arguments and
his rages in which he smashed household items. [FN8]

084 Based upon the evidence, the primary risk of physical
harm is to Harrison, not to Beatrice. Beatrice was present
on only two of these occasions. She was in the car when
Tabacchi allegedly attempted to choke Harrison. She was
being held by Tabacchi when he hit Harrison in the face with
his arm. Beatrice was not harmed during any of these
altercations. Tabacchi never struck Beatrice and he yelled
at her only when she disobeyed, as did Harrison. Harrison’s
testimony regarding her discovery of a bump on Beatrice’s
head after Tabacchi had been holding her is not probative
because Harrison did not know how the bump got there. Her
assumption that Tabacchi caused it is mere speculation.

085 Similarly, Harrison’s testimony regarding the
occasion on which Tabacchi briefly shook Beatrice for a few
seconds does not establish that Beatrice would be at
physical risk were she returned to Italy. Harrison admitted
that Tabacchi did not shake the baby hard and that he
stopped when she told him to do so. Since she has been in
Chicago, Beatrice has visited with Tabacchi several times
and stayed overnight with him on at least two occasions.
Although Tabacchi’s behavior toward his wife is
unacceptable, to qualify as a grave risk of harm under the
convention, the risk must be to the child. See Rodriguez v.
Rodriguez, 33 F.Supp.2d 456 (D.Md. 1999) (denying petition
where petitioner beat mother and physically and
psychologically abused son; Venezuelan police were
unresponsive to mother’s pleas for help; children suffered
from post traumatic stress disorder as a result of
petitioner’s conduct); Turner v. Frowein, No. FA-97-0084450
(Conn.Super.Ct. June 24, 1998) (denying petition where there
was overwhelming evidence that father had sexually molested
his son). The evidence shows that even if Beatrice were sent
back to Italy to stay with Tabacchi pending the resolution
of the custody issues, there would not be a grave risk of
physical harm. See Croll v. Croll, supra; In re Walsh, 31
F.Supp.2d 200, 206 (D.Mass.1998).

085 The court must also consider whether there is a grave
risk of psychological harm to Beatrice. Harrison contends
that there are two potential sources of grave psychological

086 First, if Harrison returns to Italy as Beatrice’s
primary caretaker, Beatrice will likely be exposed to her
father’s rages and abuse of her mother. Dr. Ravitz testified
that Beatrice would be at increased risk of psychological
harm if her father were hostile to her mother in her
presence. Courts have found grave risk based on the
psychological harm of being in an environment in which one
parent was being abused. For example in Krishna v. Krishna,
the court found grave risk of psychological harm where the
father allegedly beat the mother regularly. 97 C0021, 1997
U.S. Dist. LEXIS 4706 (N.D. Cal. April 11, 1997). The mother
left Australia with their child after an argument with the
father in which he slapped her across the face and
threatened her with a knife and belt. The court held that
although there was little risk of physical harm to the
child, there was “compelling evidence establishing the
potential for serious psychological harm.” Id. at *9.

087 Since Harrison has been in Chicago with Beatrice,
Tabacchi and Harrison have arranged visits without any
difficulties. There is no evidence that Tabacchi has
harassed Harrison or abused her. There is nothing in the
record to suggest that Tabacchi would not obey protective
orders issued in Italy. The court finds no reason to believe
that Harrison and Tabacchi could not co-exist in Italy
pending the resolution of the custody proceedings as long as
they were not living together.

088 Second, Harrison claims that Beatrice faces a grave
risk of psychological harm and an intolerable situation if
she is separated from her mother. Harrison asserts that if
she returns to Italy, she faces criminal prosecution because
of Tabacchi’s complaints. Thus, Harrison argues, even if
she returned to Italy with her daughter, they would be
separated because Harrison would be jailed. The evidence,
including Dr. Ravitz’ testimony, supports the claim that if
Beatrice were separated from her mother, she could be
emotionally injured, although even Dr. Ravitz conceded that
any injury would be mitigated if Beatrice’s relationship
with her father were strong. Indeed, in the Italian
separation proceedings, the Italian court ruled that
Beatrice should be her mother until the question of custody
can be definitively resolved, stating that Beatrice,”because
of her young age, [had] a privileged relationship with her
mother, about whom at the present moment [the court has not]
ascertained any relevant aspects of unfitness to be a parent
with whom the child has lived since her birth.” Pet. Ex. 2B.

089 The cases are in conflict as to whether psychological
harm stemming from the separation of the child from the
abducting parent is sufficient in itself to constitute a
grave risk of harm, but the majority of cases have concluded
that it is not sufficient. See Friedrich II, 78 F.3d 1060
(“The disruption of the usual sense of attachment that
arises during most long stays in a single place with a
single parent should not be a ‘grave’ risk of harm for the
purposes of the Convention”); Nunez-Escudero, 58 F.3d at 377
(reversing district court’s denial of petition and remanding
for further findings where court considered the possible
separation of the child from his mother in determining that
there was a grave risk of harm to the’ child); see also
Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir.1995); Ciotola,
684 N.E.2d at 769. But see Steffen F. v. Severina P., 966
F.Supp. 922, 926-27 (D.Ariz.1997); B. v. B., Family Ct. of
Westerburg, No. 4 F 303/98 (Sept. 29, 1992) (best interests
of child required court to deny petition because there was a
danger of psychological problems if the child was taken away
from its current familiar environment in the abducted-to

090 Even assuming that grave risk of psychological harm
would be caused by the separation of the child from the
mother, no court has allowed the pendency of criminal
proceedings in the home country to justify failure to return
the child to the country of habitual residence. Harrison
relies on Pantazatou v. Pantazatos, No. 713571 (Conn.
Superior Ct. April 29,1997), asserting that the Connecticut
court refused to return the child, finding a grave risk of
harm stemming from the fact that the mother faced a possible
contempt order if she returned to Greece (the state of
habitual residence) and that she lacked means to support
herself and the child there. Harrison fails to note that
the Connecticut court stated that the “mother could not take
advantage of that situation by not going with the child to
Greece, provided, however, that there were reasonable
undertakings by the husband which would protect her and the
child.” Pantazatou v. Pantazatos, No. FA 96713571, 1997 WL
614572, *1 (Conn.Super.Ct. Sep. 24, 1997) (“Pantazatou II”)
(supplemental decision, discussing previous order). The
court ordered the return of he child a few months later, on
September 24, 1997, in a supplemental decision. The court’s
order was contingent upon undertakings that required the
father to drop the criminal charges and refrain from
pursuing contempt actions that could result in the
separation of the mother from the child. Id. at *3. The
court also required the petitioner to pay the respondent’s
and the child’s living expenses in Greece pending the
resolution of the custody proceedings.

091 The court stated that its order was not effective
until the petitioner proved that the Greek court entered an
order substantiating the undertakings. Id. at *4. See also
Pacicca v. Pacicca, Family Court of New Zealand (1993)
(petitioner agreed that he would not initiate criminal
actions against the respondent after the children were
ordered returned).

092 Harrison also relies on Turner v. Frowein, No.
970084450, 1998 Conn.Super. LEXIS 3781, (Conn.Super. Ct.
June 25, 1998). In Turner, the court denied the father’s
petition for return of his son to Holland. The respondent
presented overwhelming evidence of the father’s sexual abuse
of the child. Id. at *16-20. While the court noted that the
mother feared criminal sanctions against her in Holland and
that her prospects for employment in Holland were limited,
these matters were not treated as dispositive. See id. at
*20-21; see also Currier v. Currier, 845 F.Supp. 916 (D.N.H.
1994) (granting petition despite criminal complaint against
respondent in country to which child was being returned);
Croll, supra (granting petition despite respondent’s
allegation that petitioner had a warrant issued for
respondent’s arrest).

093 Tabacchi testified that he instructed his attorney in
Italy to drop all pending criminal charges against Harrison.
No one in this case has presented evidence of Italian law,
and the court is therefore without knowledge of the
potential impact of the charges filed by Tabacchi (could
they lead to incarceration for instance?) or the effect of
his instruction to his attorney to drop them (can an
individual complainant by dropping his charges stop the
processes of the law he has already begun?). Since the
burden is on respondent to prove by clear and convincing
evidence that an order returning Beatrice to Italy would
present a grave risk to the child, this absence of evidence
must be construed against defendant; accordingly, the court
cannot find that as a result of Tabacchi’s complaints
against Harrison, she would be separated from Beatrice were
she to return to Italy with the child. On this record, risk
to Beatrice has not been established based on the evidence
concerning criminal charges filed by Tabacchi. The court
will, however, require that Tabacchi sign an undertaking to
be lodged with this court stating that he will take all
steps within his lawful power to insure that Harrison is not
criminally prosecuted for leaving Italy with Beatrice on
January 16, 1999.

094 Finally, the court must “take into account any
ameliorative measures (by the parents and by the authorities
of the state having jurisdiction over the question of
custody) that can reduce whatever risk might otherwise be
associated with a child’s repatriation.” Blondin, 189 F.3d
at 248; see id. at 249 (reversing the denial of the petition
based on grave risk to children if they were returned to the
petitioner’s care in France because the district court
failed to consider other arrangements that might be
available for returning the children to France).

095 Harrison does not claim that the Italian authorities
were unresponsive to her complaints. She called the police
for the first time on the last day that she was in Italy,
January 15, 1999, and they responded, albeit 45 minutes
later. She testified that she fears the police will be
unresponsive if she has problems with Tabacchi if she
returns to Italy. She also testified that she fears
“bureaucratic intimidation” in Italy in that Tabacchi’s
father, Giunio, may use his influence in the community to
interfere with her ability to work and obtain necessary
documents. Harrison has presented no evidence that Giunio
ever used whatever influence he may have to harm her or
hinder her in any way. Rather, she testified to the
assistance he has given her in obtaining a bank account and
work documents.

096 It is clear that there was no undue interference with
the Italian court’s treatment of the custody dispute to date
because the Italian court granted her, not Tabacchi,
temporary custody of Beatrice. Harrison has failed to
demonstrate that the Italian authorities would not
adequately protect her and Beatrice.

097 The court finds that Harrison has not shown grave
risk of psychological and/or physical harm by clear and
convincing evidence. Assuming that Tabacchi provides
evidence satisfactory to the court that he can provide
adequate housing separate from him as well as living
expenses for Harrison and Beatrice pending resolution of the
custody proceedings in Italy, the court will issue an order
of return. See Feder, 63 F.3d at 226 (remanding and ordering
district court to investigate adequacy of undertakings to
ensure that minor child does not suffer short term harm).
See also Croll; In re Walsh, 31 F.Supp.2d at 207; Pantazatou
II, supra; Re O, 2 FLR 349 (U.K.Fam. 1994) (exacting
undertakings is appropriate under Convention). Tabacchi must
also provide an undertaking that he has dropped all charges
against respondent in Italy and that he will take all steps
within his lawful power to insure that Harrison is not
criminally prosecuted for leaving Italy with Beatrice on
January 16, 1999.

Foot Notes

FN1. The parties submitted several affidavits in support of
their positions. The court gave due consideration only to
those affidavits it deemed relevant in determining its
findings of fact.

FN2. It should be noted that it is undisputed that since
Harrison removed Beatrice to Chicago, Tabacchi has had very
limited contact with her.

FN3. The court limits its consideration of Bernardini’s
testimony to her analysis of Harrison’s condition.
Bernardini also gave an opinion as to the likelihood that
Beatrice could suffer from a borderline personality if taken
from her mother. The court cannot consider this testimony
because Bernardini has not been shown to be an expert in
this area.

FN4. Although decisions of a court in a foreign country have
no precedential weight, such decisions are properly
considered when construing the terms of an international
convention. See Air France v. Saks, 470 U.S. 392, 404 (1985)
(interpreting the word “accident” under the Warsaw

FN5. Harrison moved to dismiss this case arguing that the
custody issues had already been decided by the Italian court
in its ruling of July 24, 1999, granting Harrison temporary
custody. This court must assess the elements of wrongful
removal as of the time the child was taken from the state of
habitual residence. See Hague Convention Art. 3 (Removal is
wrongful when it “is in breach of rights of custody
attributed to a person … either jointly or alone, under
the law of the State in which the child was habitually
resident immediately before the removal or retention
….”)(emphasis added). Here that is January 1999. At that
time both parents had equal rights of custody, as respondent
stipulated. Moreover, the Italian court’s decision did not
involve a final resolution of custody but merely granted
Harrison temporary custody, “without prejudice to the
necessity and the urgency of an in depth technical
evaluation of the parental fitness of both parties and the
effect of the sudden change of residence of the mother on
the psychological and physical development of the minor
….” Pet. Ex. 2B The Italian court held that the solution
that “seems best to guarantee a reconciliation of the
[parents’ and the child’s] interests, is to give custody of
the minor to the mother with the obligation for the same to
bring the child to Italy in order to allow an adequate stay
of the child with the father in the environment where she
grew up since her birth ….” Id. Accordingly, Harrison’s
motion to dismiss on this basis must be denied.

FN6. Even if Tabacchi had indicated his willingness to allow
Harrison to take Beatrice to the United States for three
months, as Harrison claimed, he made clear that the child
had to be returned to Italy. Even on these facts, Harrison
would clearly be liable for wrongful retention of Beatrice
in the United States.

FN7. The court notes that an order of return does not amount
to an order handing the child to the petitioner. The
determination of which parent should have custody pending
a final custody determination is a matter for the tribunal
in the state of habitual residence. See Ciotola v. Fiocca,
684 N.E.2d 763, 770 (Ohio Ct. of Common Pleas 1997) (citing
Tyszka v. Tyszka, 503 N.W.2d 726 (Mich.Ct.App.1993)). Here,
the Italian courts have awarded temporary custody to

FN8. The record does not support the allegations of
one-sided verbal abuse. Both Harrison and Tabacchi yelled,
screamed, and swore at each other regularly. The record
indicates that Harrison threw objects too.