USA – FL – LANZILOTTA – 1993 (1993) (Return ordered) Lanzilotta v Tommaso, Two children taken to the USA by the mother and returned to the father in Argentina.







THIS CAUSE came on to be heard on August 12, 1993 upon the
Petitioner-Father’s Petition for Return of Children and Amendment to
Petition and Respondent-Mother’s Motion to Dissolve Writ of Habeas
Corpus. The Petitioner-Father, HORACIO GUSTAVO LANZILOTTA was present
and represented by counsel. The Respondent-Mother, ROSALIND TOMMASO
was also present and represented by counsel. From the evidence and
argument of counsel, the Court makes the following findings of fact
and conclusions of law:

1. The Hague Convention: The Petition is brought by the father,
HORACIO GUSTAVO LANZILOTTA under the provisions of the Hague
convention on the Civil Aspects of International Child
Abduction (hereinafter referred to as the “Hague Convention”)
which provides for the prompt return of children under certain
guidelines. To implement the treaty in the United States,
Congress passed the International Child Abduction Remedies Act,
42 U.S.C. Sections 11601-11610 (1988). The Convention became
effective in the United States on July 1, 1988.

2. Jurisdiction: 42 U.S.C. 11603(a) provides that the Courts of
the States and the United States District Courts shall have
concurrent original jurisdiction over actions arising under the
Convention. Subsection (b) provides,

“Any person seeking to initial judicial
proceedings under the Convention for the return of
a child or for arrangements for organizing or
securing the effective exercise of rights of
access to a child may do so by commencing a civil
action by filing a petition for the relief sought
in any court which has jurisdiction of such
action, and which is authorized to exercise its
jurisdiction in the place where the child is
located at the time the petition is filed.”

3. Section 11603(d) provides that “the court in which the action
is brought under subsection (b) shall decide the case in
accordance with the Convention. ” In accordance with Article 8
of the Hague Convention, the Petitioner applied to the Central
Authority in Argentina for assistance for return of the
children. The children who are the subject matter of this
action are FACUNDO LANZILOTTA, born on June 6, 1987, presently
five (5) years of age; and BRENDA LANZILOTTA, born on March 4,
1991, presently two (2) years of age. Pursuant to Article 9 of
the Convention, Argentina transmitted the application to the
United States Department of State, the designated Central
Authority of the United States under the Convention. The Father
filed his Petition on less than one year from the date of the
children’s removal from Argentina.

4. Background Facts: The Petitioner, HORACIO GUSTAVO LANZILOTTA,
and the Respondent, ROSALIND TOMMASO, were married on February
1, 1985 in DeLand, Florida. After briefly living in the United
States, the parties’ moved to Argentina. Neither of the
parties’ children were born at the time the parties left the
United States. The Petitioner is an Argentinean National. The
Respondent is an American National. Both the parties’
Buenos Aires, Argentina. The children lived in Argentina with
their mother and father from the date of their birth until
August 29, 1993.

5. Application of the Hague Convention: In deciding whether the
Hague Convention applies to the case at hand, the court must
make the following determinations:

a.) That the Petitioner had a right of custody, either
jointly or solely under Argentinean law;

b.) That the Petitioner was actually exercising those rights
of custody at the time the children were removed from

c.) That the children were habitual residents of Argentina
at their removal; and

d.) That the children were “wrongfully removed” from
Argentina. WMH FN01

6. Petitioner’s Right of Custody: Dr. Jose Carlos Arcagni, an
expert witness on the issue of the application of Argentine law
WMH FN02 testified that under Argentine law, the Petitioner, as
the children’s father, has a right to exercise custody, either
jointly or solely over the minor children (Article 264 of the
Argentina Civil Code). Under Argentine law, the the Petitioner
and the Respondent, as the children’s parents have a right to
choose the location of the children’s residence (Article 200
Argentina Civil Code). The Court finds that the Petitioner had
a right of custody, either jointly or alone, of said minor
children under Argentinean law within the meaning of Articles 3
and 5 of the Hague Convention. WMH FN03

7. Petitioner’s Exercise of Custodial Rights: Up through August
29, 1993, the Petitioner was taking care of the children,
making decisions relating to their welfare and taking care of
their daily needs. The Court finds that the Petitioner was
actually exercising his rights of custody within the meaning of
the Hague Convention. WMH FN04

8. Habitual Residency: On August 29, 1993, the Respondent removed
the children from their home in Buenos Aires, Argentina and
took them to the United States. Prior to their removal, the
children had been receiving continuous medical care, was
attending school, and had frequent contacts with friends and
family in Buenos Aires, Argentina. At the time of the removal,
the eldest child was in the middle of his school year. In
accordance with the Hague Convention, the Court finds that at
the time of the removal, the children were habitual residents
of Argentina. WMH FN05

9.) Wrongful Removal: The evidence shows that neither the father
nor the children had any warning of the Respondent’s plan to
remove the children from their home in Argentina. The
Petitioner testified that on the morning of August 29, 1993,
the Petitioner kissed his children, said good-bye to them, and
told them that he would see them when returning home from work.
The Respondent did not present any conflicting evidence. She
testified that she did not advise the Petitioner of her intent
to take the children to the United States. The Petitioner never
consented to the removal of the children from Argentina. The
Court finds that in accordance with Article 3(b) of the Hague
Convention, the removal and retention of the children was
wrongful and falls within the scope of Article 3 of the

10.) Exceptions Not Applicable: In accordance with Article 12, once
the Court finds that the removal is wrongful, the Hague
Convention states that the authority concerned shall order the
return of the children forthwith. A Respondent who opposes the
return of a child has the burden to establish that one of the
exceptions to a mandatory return, as set forth in article 13(b)
and 20, must be established by a high standard of proof, clear
and convincing evidence, that the exceptions apply. The
provision contained in Article 13(b) of the Convention states
that the court is not bound to order the return of the child if
it finds 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.

11. The Respondent claimed that such return would present a grave
risk to the children. There was no evidence presented by the
Wife to support her position. The Court finds that the
Respondent has failed to prove by clear and convincing evidence
that the children will be exposed to a grave risk as defined by
the Convention.

12. The Petitioner has requested that the Respondent bear the costs
in accordance with his Petition and Amendment to Petition for
return of Children. WMH FN06

Upon consideration of the foregoing, it is thereupon:


1. The Petitioner’s Petition for Return of Children and amendment
to Petition for Return of Children is granted.

2. The Respondent’s Motion to Quash Writ of Habeas Corpus is moot
as the children have been released from HRS protective care in
accordance with this Final Judgment and the Order Directing
Release of Children to Petitioner which has been entered in
conjunction herewith. WMH FN07

and shall be returned to their home in Buenos Aires, Argentina.

4. The Respondent shall provide to the petitioner the minor
children’s American and Argentinean passports, birth
certificate, authorizations, permits and any and all other
documents relating to the minor children’s ability to travel to
and from Buenos Aires, Argentina. The Respondent also return
the minor children’s personal belongings to their home in
Argentina. WMH FN08

5. The Respondent shall return any and all of the Petitioner’s
documents including passports, authorizations and documents in
relation to the Petitioner residence in the United States.

6. The Court reserves jurisdiction on the Petitioner’s request for
fees and costs. No further proof shall be required other than
Affidavits of Services Rendered by the Petitioner’s counsel,
and an Affidavit of Costs Expended by the Petitioner.

DONE AND ORDERED, in Daytona Beach, Volusia County Florida, this 11th
day of October 1993.

/s/ Richard B. Orfinger

Copies furnished to:

Carolyn S. Zisser, P.A.
Cynthia L. Catalan, Esquire
Carolyn S. Zisser, Esquire
Attorneys for Petitioner
302 Third Street, Suite 6
Neptune Beach, Florida 32266

Joseph Alexander Scarlett, III. Esquire
Attorney for Respondent
208 West Howry Avenue
DeLand, Florida 32720

Footnotes are by William M. Hilton, SYSOP
1. Strictly speaking the court does not make a finding that
there was a “Wrongful Removal” but instead finds that the
children were removed from their habitual residence in
derogation of the rights of custody of the left behind
parent. This then, under Art. 3, is a “Wrongful Removal”.

2. See Arts. 7(e), 8(f), 14 and 15. Art. 8(f) is of particular
interest: “a certificate or an affidavit emanating from a
Central Authority, or other competent authority of the State
of the child’s habitual residence, or from a qualified
person, concerning the relevant law of that State;”

3. This finding is accord with many rulings under The
Convention by other countries, e.g., United Kingdom,
Australia, Canada, etc.

4. The burden of proof of the Petitioner on this point is very
light. See No. 73 of the Explanatory Report by E.
Perez-Vera, Hague Conference on Private International Law,
Actes et documents de la Quatorzieme session, vol. Ill,
1980, p. 426.

5. The court quite properly refers to the contacts that the
children have with Argentina: Medical Care, Schools, peer
reltationships, etc. One could also review the criteria
that has been used to find “Significant Connections” under
the Uniform Child Custody Jurisdiction Act (UCCJA), 9
Uniform Laws Annotated (ULA) 3(a)(2). It is common ground,
of course, that the mere finding of “domicile” of a child in
a particular place is not sufficient to show Habitual

6. See 42 U.S.C. 11607(b)(3) and Art. 26

7. This paragraph implies that, pending a hearing on the merits
of the Petition, the children had been picked up and placed
in a shelter. This would further imply that the children
were picked up prior to the hearing, presumably at the time
the Petition was served on the Respondent, in order to
prevent the Respondent from further fleeing with the
children pending a hearing. See 42 U.S.C. 11604(a) and Art.

8. These instructions are quite important and make it eaiser
for the children to be returned. In the heat of the
proceedings they may be inadvertantly omitted.