USA – MN – CONCEDDA – 2002 (Return ordered) CONCEDDA v CAVIGLIA. The mother removed the child from Italy to the United States. The father applies for the return under the Convention. The Court ruled that Italy was the habitual residence and that the removal was wrongful under Art. 3 of the Convention. The court requested that “the Italian Judicial authority provide a decision or other determination whether the removal of the child on September 28, 2000 was wrongful within the meaning of Article 3 of the Convention. In a response dated June 21, 2002, the Italian authority stated that the abduction of Francisco Concedda by his mother was wrongful under Article 3. Accordingly, this court must order the return of the child”.
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Concedda vs. Caviglia [MN 2002]Clearwater County MN File No F6-02-65
10 International Abduction [USA 2002]
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State of Minnesota
County of Clearwater
District Court
Ninth Judicial District
Family Court
Court File No. F6-02-65
Antonello Concedda,
Petitioner
vs
Maria Caviglia,
Respondent
ORDER DIRECTING RETURN OF MINOR TO COUNTRY OF HABITUAL
RESIDENCE.
001 The above-entitled matter came on for hearing before
the Honorable Paul B. Rasmussen Judge of District Court, in
the Clearwater County Courthouse, Bagley, Minnesota on May
16, 2002 on Petitioner’s request for return of his child
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction. Petitioner appeared
personally and with his attorney, Arlen Larson, P.O. Box
436, Bagley, Minnesota 56621. Respondent appeared
personally and with her attorney Ronald Cayko, 514 America
Avenue, P.O. Box 880, Bernidji, Minnesota 56619.
002 Based upon the evidence presented, arguments of
counseL and upon all the files, records and proceedings
herein, the court makes the following:
FINDINGS OF FACT
003 1. Petitioner Antonello Concedda and Respondent Maria
Cavigila are the natural parents of the minor child,
Francisco Maurizo Concedda, born February 2, 1993.
004 2. The parties are Italian Citizens. The child was
born in the United States and has dual United States –
Italian citizenship.
005 3. Respondent commenced a legal separation proceeding
against Petitioner in Italy in February 2000.
006 4. In the spring 2000, Petitioner and Respondent were
living apart, and Petitioner was having a difficult time
seeing his son.
007 5. On April 28S,. 2000 Petitioner obtained a decision
from The Court of Minors of Genoa allowing him to see his
child once a week in the presence of Respondent for the
month of May and “up to the presidential hearing in the
procedure of separation” scheduled for August.
008 6. The Petitioner had difficulty seeing the child in
the presence of the Respondent and requested a change in the
April 28, 2000 decision. On May 15, 2000, the Court of
Minors of Genoa issued a new decision allowing Petitioner to
see his child In the presence of “operators of the social
district” instead of in the presence of the Respondent “up
to the presidential hearing in the procedure of separation.”
009 7. On September 22, 2000 a hearing on the matter of
custody was held in an Italian Court, with Petitioner and
Respondent present, along with a psychologist. Written
testimony was presented.
010 8. On September 28, 2000, Respondent and the child
left from Nice France and traveled to Los Angeles,
California U.S.A.
011 9. Respondent did not tell Petitioner that she was
taking the child to the States.
012 10. At the time Respondent left with the child, the
custody determination was pending in the Italian Court.
013 11. The child was a habitual resident of Italy at
the time he was removed by Respondent.
013A 12. On October 10, 2000, in a Genoa Court of Law,
with Petitioner and attorneys for both parties present, the
Court authorized the parties’ separation, gave custody of
the child to the Petitioner [WMH: Respondent?], and set a
visitation schedule.
014 13. A booked airline flight for Respondent and
child’s return on October 29, 2000 was never used.
015 14. After one month in Los Angeles, Respondent and
child went to Minneapolis, Minnesota and in early November
2000 they traveled to Clearwater County, Minnesota.
016 15. On May 21, 2001, based upon the Respondent’s
taking the child to an unknown destination while the
proceeding was in process, and depriving the child with any
contact with the father who ultimately obtained custody “as
ruled upon by a presidential provision upon the separation”
the Youth Court of Genoa issued an Order disqualifying her
as guardian of the child.
017 16. In the Spring of 2002, Petitioner located
Respondent and child in Clearwater County, and filed a
petition with the Central Authority for the return of the
child.
018 17. On June 21, 2002, the Italian Central Authority
issued a statement that abduction of the child, Francisco
Concedda, by his mother was wrongful under Article 3 of the
Hague Convention.
019 18. The child was removed from his habitual
residence in derogation of the custody rights of Petitioner.
CONCLUSIONS OF LAW
020 1. This petition is brought pursuant to The
Convention on the Civil Aspects of International Child
Abduction, done at the Hague on October 25, 1980
(Convention) and 42 U.S.C. 11603(b), the international Child
Abduction Remedies Act (ICARA) The objects of the Convention
are:
021 a. Article 1(a): To secure the prompt return of
children wrongfully removed to or retained in any
Contracting State; and
022 b. Article 1(b): To ensure that rights of custody
and access under the laws of one Contacting State are
effectively respected in the other Contracting States.
023 2. This court has jurisdiction pursuant to 42 U.S.C.
11603.
024 3. PetitIoner has a right of custody of the child
within the meaning of Articles 3 and 5 of the Convention in
that he is the father of the child and was granted custody
by an Italian Court of law.
025 4. Italy was the child’s habitual residence at the
time of the removal.
026 5. Respondent’s removal of the child from his
habitual residence in derogation of Petitioner’s rights of
custody was wrongful removal under Article Three of the
Convention.
027 6. The Petitioner at the time of the wrongful
removal was actually exercising custody within the meaning
of Articles Three and Five of the Convention.
028 7. The Memorandum attached hereto is herein
incorporated as part of the Findings of Facts and
Conclusions of Law in this matter.
ORDER
029 1. Pursuant to the provision of The Convention on
the Civil Aspects of International Child Abduction, done at
the Hague on October 25 1980 (Convention) and/or the
International Child Abduction Remedies Act, 42 U.S.C. 11601
at seq, that the minor Francisco Concedda, born February 2,
1993, be returned in the company of his father to the
sovereign nation of Italy and to report the delivery of the
child to appropriate Central Authority.
030 2. By virtue of this order, Antonello Concedda has
the exclusive right to the physical and legal custody of the
child during the period of time required to return to the
above mentioned child to Italy, the country of the minor’s
habitual residence.
031 3. Clearwater County Court Administration is
authorized to release the child’s passport to the Clearwater
County Sheriff.
032 4. This order is not a determination of the merits
of any custody issues within the meaning of Article 19 of
the ConventIon.
033 5. The order of this court is made under the
authority of 42 U.S.C. 11603(a), conferring upon this
court original and concurrent jurisdiction with federal
district courts of the United States.
034 6. The Respondent shall pay necessary expenses
incurred by or on behalf of the Petitioner pursuant to 42
U.S.C 11607(b)(3), unless the Respondent can establish
that such payment would be inappropriate.
THEREFORE, TO ANY PEACE OFFICER IN THE STATE OF MINNESOTA OR
TO ANY OFFICER:
035 You are hereby commanded to enforce the instant
order, utilizing any appropriate means (including electronic
monitoring or taking the child into protective custody),
allowing AntoneUo Concedda to remove the above named minor
from the United Stales of America, and to allow Antonello
Concedda to accompany him to the country of Italy, giving
said Antonello Concedda the right, without hindrance, to
said child in his lawful custody for the purposes described
herein.
036 This order is effective the date below written, and
shall continue in force and effect until modified or
canceled by a court of competent jurisdiction in Italy.
Date: July 19. 2002 /s/ Paul Rasmussen
The Honorable Paul Rasmussen
Clearwater County District Court
213 Main Avenue North
Bagley, Minnesota 56621
(218) 694-6177
037 I hereby certify that the above Conclusions of Law
constitute an Order of this court.
Dated: 19 Jul 2002
Darlene Gerbracht, Court
Administrator
/s/ Darlene Gerbracht
By: /s/ Betty Metz
Deputy Court ADministrator
=============================END ORDER=====================
MEMORANDUM
038 The above matter came before the court on
Petitioner’s request that the child of this action,
Francisco Concedda, be returned to Italy with Petitioner
pursuant to the terms of the Hague Convention on the Civil
Aspects of International Child Abduction. Respondent
objects to Petitioner’s request, arguing that Petitioner did
not have custody rights at the time of the child’s removal
and accordingly, the request for return does not come
within the purview of the Convention. Respondent also
asserts that even if the child was wrongfully removed in
breach of Petitioner’s custody rights, certain affirmative
defenses apply. Based on the evidence and law, the court
makes the following determination on Respondent’s claims.
039 The Respondent’s first claim is that she had sole
custody of the child at the time of removal, and therefore
the removal was not wrongful within the meaning of the
convention. The burden of proofing a wrongful removal is on
the Petitioner. 42 U.S.C. 11603 (e)(1)(A). The standard of
proof is that of a preponderance of the evidence. 42 U.S.C
11603 (e)(1). Article 3 of the Convention defines wrongful
removal as a breach of rights of custody attributed to a
person, either jointly or alone, under the laws where the
child was habitually resident immediately before the removal
or retention. Here neither party submitted an order dated
prior to the removal that clearly granted or eliminated
rights of custody the court assumes were inherent to both
parents. The court, otherwise lacking sufficient information
on Italian law and constrained by a foreign language did,
pursuant to Article 15 of the Hague Convention, request that
the Italian Judicial authority provide a decision or other
determination whether the removal of the child on September
28, 2000 was wrongful within the meaning of Article 3 of the
Convention. In a response dated June 21, 2002, the Italian
authority stated that the abduction of Francisco Concedda by
his mother was wrongful under Article 3. The Italian
Authority also made special reference to a May 21, 2001
Order of the Juvenile Court in Genoa which, in disqualifying
Maria Cavigila as guardian, of the child, referred back to
previous proceedings which had noted that the mother had
left Italy while the separation proceeding was in process
and referred to the father having been granted custody “as
ruled by a presidential provision upon their separation.”
The Italian Authority’s response to this court’s inquiry
comports with Petitioner’s version of what legal proceedings
transpired and the results of those proceedings.
040 The respondent claims that she bad sole custody of
the child at the time she left Italy. Based upon the
response of the Italian authority, and upon careful review
of all the documents and testimony, the court is convinced
otherwise. The Juvenile Court Orders dated April 28, 2000
and May 15, 2000 did not specifically grant Respondent sole
custody of the child. The Orders were for the limited
purpose of setting temporary visitation for the father and
the child, and were to be in effect until a separation
hearing scheduled for later in the year. On. September 22,
2000 the partIes were in court in Genoa. Approximately six
days later the Respondent removed the child from Italy while
a custody decision was still pending. Approximately two
weeks after the removal, Petitioner was given custody of
the child with visitation to the mother, as evidenced by the
October 10, 2000 minutes of the Genoa court and the contents
of the May 2, 2001 Order of the Juvenile Court in Genoa.
The preponderance of the evidence supports a finding that
the Respondent did wrongfully remove the child. The
Convention applicable and the court has the authority to
return the child.
041 The Respondent also argues that even if she removed
the child in breach of Petitioner’s custody rights, the
child would suffer psychological harm If be were required to
return. Pursuant to Article 13b,the court is not bound to
order the return of the child if it is established that
there is a grave risk that returning the child would expose
him to physical or psychological harm, or would otherwise
place him in an intolerable situation. Respondent has the
burden of establishing the defense by clear and convincing
evidence. 42 U.S.C 11603(e)(2)(A). In applying the
defense, courts have generally focused on the
appropriateness of the general environment of the country to
which the child is to be returned, and specific dangers to
the child that cannot be ameliorated by the courts of the
child’s habitual residence. Friedrich v. Friedrich 78 Fed.3d
1060 (6th Cir. 1996). As defined by the Courts analyzing the
standard, grave risk of harm exists by returning a child to
a zone of war, famine or disease, or in cases of serious
abuse or neglect, returning a child where the country of
habitual residence may be incapable or unwilling to give the
child proper protection. Id. at 1069.
042 To support her claim, Respondent had the child
examined by Dr. Elliot Grant, staff clinical psychologist
at Northwest Medical Center. Based on information provided
to him by the Respondent and his examination of the child,
however, Dr. Grant could not draw the conclusion that return
of the child would cause the child to be placed in grave
risk of psychological harm if he was returned to Italy with
Petitioner.
043 The Court notes that much of Respondent’s arguments
on this issue involved issues of adjustment the child, as
any, would have in relocating. Disruption of the sense of
attachment that occurs during an extended stay in a
particular location with a single parent does not constitute
a grave risk of harm under the Convention. Other evidence
offered by Respondent was more relevant and primarily
directed to a choice between either parents or locale. As
stated by another court, “The exception for grave harm to
the child is not license for a court in the abducting
country to speculate on where the child would be happiest.
That decision is a custody matter, and is reserved to the
court in the country of habitual residence.” Id at 1068.
044 Respondent also attempted to raise issues of alleged
past conduct by Petitioner. The alleged incidents occurred
prior to the Respondent and Petitioner’s court appearance in
Italy. By attempting to raise these Issues Respondent was
attempting to re-litigate issues that either were or should
have been raised and addressed in the courts of Italy.
Even if the court accepted these allegations by Respondent,
the allegations do not rise to the level of grave risk of
physical or psychological harm to the child, and there is no
evidence that the Italian Court would be incapable or
unwilling to protect the child, if ever necessary. For these
reasons, Respondent has failed to establish by clear and
convincing evidence that the child would be at a grave risk
of harm if he were returned to Italy.
045 Respondent also argues that the child is now settled
in its new home and should note at this point be ordered
returned to Italy. Article 12 provides that the judicial
authority, even where proceedings have commenced over a year
past the removal date, shall order the return of the child
unless it is demonstrated that the child is “settled” in the
new environment. The Respondent left Italy with the child
on or about September 28, 2000. The present action was
commenced March 18, 2002. The commencement of the action was
more than one year after the removal of the child, arguably
allowing the Respondent to raise the claim that the child
is well-settled in his new home and should not be ordered
returned to Italy.
046 In support of this affirmative defense respondent
points out that the child has attended school for 2 years in
the area, that he has made friends, and considers himself
not an Italian, but an American. Respondent indicates that
the child is an English speaker in an English-speaking
environment, and that the child is happy to be in his
present environment. The evidence in this case also shows
that when Respondent left Italy with the child she did not
inform Petitioner where she went with the child. Upon
learning that the child bad been abducted, Petitioner
reported the abduction in the appropriate law enforcement
agencies in his country of Italy. He contacted Respondent’s
father and brother to see if they knew where the child was.
On May 6, 2001 Petitioner filed an Application for Return
of the Child as required under the Hague Convention On Civil
Aspects of International Child abduction. The respondent,
meanwhile, had traveled to a small rural county in Northern
Minnesota where neither she nor the child had any apparent
ties. Respondent enrolled the child in a small (20 pupIl)
rural school. The child had no contact with his father,
his paternal aunts, uncles, grandparent or cousins or
friends in Italy. Although the evidence indicates that
community members are pleased with the child’s presence in
the community, the court does not believe that this child
can be considered settled where he is moved surreptitiously
to a remote area and is essentially concealed from his
father. See Lops v, Lops, 140 F.3d 927 (11th Cir 1998)
(where concealed children living in a area for two and one
half years were not settled.) Respondent did the
unthinkable; she abducted her child and attempted to conceal
him from the other parent and family members. Whatever
reason or rationale Respondent had for her behavior, it
could not and does not justify such an action. “The
international abduction or wrongful retention of children is
harmful to their well-being.” 42 U.S.C. 11601 (a)(1).
047 Tire court also notes that the child’s location in
such a remote area has an obvious relationship to the delay
in making the formal application for the child’s return.
Allowing a parent who has secreted a child from the other
parent to profit from conduct is contrary to basic
principles of equity. Abducting a child and then – upon
being brought into court – arguing that the child has become
used to the place where they were abducted to is
disingenuous at best. “Persons should not be permitted to
obtain custody of children by virtue of their wrongful
removal or retention.” 42 U.S.C. 11601(a)(2). The evidence
indicates that the Respondent abducted the child, and
deliberately hid the child from the other parent. While the
child has become somewhat accustomed to his new
surroundings, Respondent has not established an affirmative
defense under the “well-settled” exception.
048 Finally, Respondent argues that the Court should not
send the child back to Italy because the child does not want
to return to Italy and does not want to be removed from his
mother’s care. According to Article 14 [WMH Note: Should be
13] of the Convention, “The judicial or administrative
authority may also refuse to order the return of the child
if it finds that the child objects to being returned and has
obtained an age and degree of maturity at which it is
appropriate to take into account of its views.” This child
is clearly not of a sufficient age and degree of maturity at
which it would be appropriate to give dispositive weight to
the child’s preference.
049 In returning the child to Italy, this Court is
following the mandates of the Convention. The focus of the
Convention is the prompt return of children and restoration
of the status quo. The goal of the Convention is to deter
abductions by making such behavior legally fruitless. In
that regard, the laws in this state on issues of ultimate
custody are irrelevant.
050 The respondent initiated the court proceedings in
Italy. Significantly, in so doing she asked the court in
Italy to assert jurisdiction over herself, the petitioner,
and the child. The Italian court did so, and Respondent
participated in several court hearings with a lawyer.
Orders were issued by the Italian court granting the
petitioner limited and supervised visitation every other
weekend. These preliminary orders implicitly recognized
Respondent as the primary custodian of the child. Had
Respondent remained in Italy and litigated the custody issue
there, she may well have prevailed. For some reason,
however, she elected to flee the jurisdiction where she bad
initiated court proceedings.
051 It may be that respondent sensed or feared the
Italian proceedings were not going her way or that she would
lose custody. Indeed, the record suggests that Respondent
may have been interfering with Petitioner’s
custody rights to such an extent that it was undermining her
legal position. It also appears that Respondent left Italy
not only in the middle of the court proceeding, but while a
custody determination was pending. Respondent
asked the Italian court to resolve the issues of her
marriage and the custody of her child, but did not wait for
an answer. She fled the country, the Italian court, the
petitioner, and her family.
052 The important issue of custody needs to be resolved
in a court of law, not by the unilateral action of having
one parent abduct the child and hide in another country.
Respondent should return to Italy to be there for the child
and to litigate custody in the court proceeding she
initiated. It must be assumed that the Italian authorities
will act as to protect the welfare of the child. It may well
be that Respondent will ultimately be awarded custody. That
determination is, however, clearly one for the Italian Court
to decide. Accordingly, this court must order the return of
the child.
P.E.R.